Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. C-82048
Swager, J.
This appeal has been taken from an order that found defendant incompetent to stand trial within the meaning of Penal Code section 1368, referred him to the Conditional Release Program (CONREP) for examination and placement, and directed the treatment facility to administer antipsychotic medication to him involuntarily if necessary and prescribed by a treating physician. Defendant claims that the evidence fails to support the trial court’s finding of incompetence or the order for involuntary administration of antipsychotic medication. We conclude that the finding of incompetence is supported by substantial evidence, but the order to involuntarily administer antipsychotic medication to defendant is not. We therefore affirm in part and reverse in part.
All further statutory references are to the Penal Code, unless otherwise indicated.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The facts pertinent to the underlying murder charge are not at issue in this appeal, and are not before us in the record on appeal.
Defendant was charged with first degree murder (§ 187, subd. (a)), with an enhancement for a prior prison term (§ 667.5, subd. (b)). On May 11, 2007, defense counsel expressed doubts about defendant’s competence to stand trial and requested that the trial court suspend criminal proceedings pursuant to section 1368. The court granted the request and appointed two alienists, Vicky Campagna and R.K. McKinzey, to examine defendant and submit reports.
The reports submitted to the court in June of 2007 are concise. Dr. Campagna stated in her report that defendant refused to agree to an interview with her, so she was “unable to make a definitive judgment regarding his competence to stand trial.” She examined the police reports, spoke with defense counsel, and reviewed a letter sent by defendant to his counsel. “Based on that information and on the fact that the defendant would not see” her, Dr. Campagna opined that defendant “continues to experience the paranoid delusional state which has been well documented in [the] past.” She added: “Therefore, it is my conclusion that he is incompetent to stand trial.”
Dr. McKinzey indicated that the records he reviewed consisted of police reports and a handwritten letter purportedly written by defendant on May 2, 2007. He also consulted with jail mental health staff. Defendant refused to participate in an interview with Dr. McKinzey. According to the information available to Dr. McKinzey, defendant has “a long history of psychosis and hospitalizations,” and “currently carries a diagnosis of paranoid Schizophrenia.” Dr. McKinzey reported that defendant has declined to take offered psychiatric medication voluntarily for his paranoid condition, and “is a danger.” Defendant has also repeatedly refused to meet with his attorney, and failed to cooperate with the court or his treatment team. Dr. McKinzey recommended a finding of incompetency.
At a competency hearing on September 7, 2007, the parties stipulated that the issue of competency would be submitted on the reports of the two appointed alienists. Based on the stipulated findings in the reports the court found defendant mentally incompetent within the meaning of section 1368 and referred defendant to the CONREP program for examination and recommendation.
The CONREP evaluation included review of the court-ordered alienists’ reports, the police reports, and defendant’s treatment records. The CONREP report, submitted on September 24, 2007, mentioned that defendant had a long history of mental illness, and status as a Mentally Disordered Offender (MDO) from 1995 to 2005. He expresses paranoid delusional thinking, but has consistently refused to take prescribed psychiatric medication or accept treatment throughout his commitment as an MDO and while incarcerated in jail. The report suggested that despite defendant’s paranoia, his refusal to cooperate with the alienist evaluators may have been a “conscious decision” which stemmed from his awareness of and familiarity with legal proceedings. The CONREP evaluator expressed that while defendant suffers from mental illness, “his incompetence may be questionable.” Nevertheless, due to defendant’s refusal to take medications and his lack of cooperation with treatment, the recommendation was made in the CONREP report to commit him to Napa State Hospital and “authorize the use of involuntary antipsychotic medications to treat his paranoia.”
Following another stipulation by defense counsel to submit the matter on the CONREP report at a hearing on October 5, 2007, the trial court ordered defendant committed to Napa State Hospital for a maximum period of three years. The court found that defendant’s mental disorder required antipsychotic medication to prevent serious harm to him. The court therefore ordered that if defendant denied consent to administration of antipsychotic medication as prescribed by a treating psychiatrist, the treatment facility may administer the medication involuntarily. This appeal followed.
We have taken judicial notice of a trial court order dated June 9, 2008 (Evid. Code, §§ 452, subd. (d), 459), which adjudged defendant mentally competent and reinstated criminal proceedings. We do not have any indication from the order that defendant is no longer being involuntarily medicated, so we do not find the present appeal moot.
DISCUSSION
I. The Finding of Defendant’s Incompetence to Stand Trial.
Defendant argues that the two reports considered by the trial court fail to furnish “substantial evidence to support the required finding that he did not understand the nature of the proceedings and was not able to rationally assist trial counsel in his defense.” He complains that the reports do not include a “statement of qualifications for either of the ‘experts,’ ” fail to “address[] the statutory criteria for a finding of incompetency to stand trial,” rely upon “inadmissible hearsay” stated in “previous diagnoses and reports,” and critically omit any “facts and reasoning” in support of the opinions offered. Defendant also refers to the CONREP report, which he points out offers the conflicting opinion that he may be competent.
The CONREP report was not before the trial court when the competency determination was made, and so we will not consider it in our review of the decision.
“Under California law, a person is incompetent to stand trial ‘if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.’ (§ 1367, subd. (a).)” (People v. Young (2005) 34 Cal.4th 1149, 1216; see also People v. Koontz (2002) 27 Cal.4th 1041, 1063; People v. Garcia (2008) 159 Cal.App.4th 163, 170.) Our high court has recited the similar federal standard of incompetence as follows: “A defendant is incompetent to stand trial if he or she lacks a ‘ “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding – and . . . a rational as well as [a] factual understanding of the proceedings against him.” ’ (Dusky v. United States (196[0]) 362 U.S. 402, 402 [4 L.Ed.2d 824, 80 S.Ct. 788]; see also Godinez v. Moran (1993) 509 U.S. 389, 399–400 [125 L.Ed.2d 321, 113 S.Ct. 2680]; § 1367; People v. Stewart (2004) 33 Cal.4th 425, 513 [15 Cal.Rptr.3d 656, 93 P.3d 271].)” (People v. Rogers (2006) 39 Cal.4th 826, 846–847; see also People v. Lewis (2008) 43 Cal.4th 415, 524; People v. Halvorsen (2007) 42 Cal.4th 379, 401.)
On appeal, a finding on the issue of a defendant’s competence to stand trial “cannot be disturbed if there is any substantial and credible evidence in the record to support the finding.” (People v. Castro (2000) 78 Cal.App.4th 1402, 1418; see also People v. Garcia, supra, 159 Cal.App.4th 163, 171.) We view the evidence in the light most favorable to the verdict to determine if it supports the trial court’s finding. (People v. Marshall (1997) 15 Cal.4th 1, 31.) “ ‘Evidence is substantial if it is reasonable, credible and of solid value.’ [Citation.]” (People v. Lawley (2002) 27 Cal.4th 102, 131.) “ ‘In addition, a reviewing court generally gives great deference to a trial court’s decision’ ” on the defendant’s competence to stand trial. (People v. Kaplan (2007) 149 Cal.App.4th 372, 382–383, quoting People v. Marshall, supra, at p. 33.)
“In determining whether there is substantial evidence of incompetence, a court must consider all of the relevant circumstances, including counsel’s opinion. (People v. Howard (1992) 1 Cal.4th 1132, 1164 [5 Cal.Rptr.2d 268, 824 P.2d 1315].) ‘[T]he “inexactness and uncertainty” that characterize competency proceedings may make it difficult to determine whether a defendant is incompetent or malingering.’ (Cooper v. Oklahoma [(1996)] 517 U.S. [348,] 365 [116 S.Ct. [1373,] 1382][.]) Thus, ‘what constitutes . . . substantial evidence in a proceeding under section 1368 “cannot be answered by a simple formula applicable to all situations.” [Citation.]’ (People v. Laudermilk (1967) 67 Cal.2d 272, 283 [61 Cal.Rptr. 644, 431 P.2d 228].) ‘ “[S]ufficient present ability” ’ to cooperate with a lawyer and assist rationally in preparing a defense includes more than an ‘orientation as to time and place,’ and ‘some recollection of events is not enough.’ (People v. Tomas (1977) 74 Cal.App.3d 75, 88 [141 Cal.Rptr. 453].)” (People v. Castro, supra, 78 Cal.App.4th 1402, 1415.) While substantial evidence of incompetence may be established by the opinion of an expert, “it is not required.” (People v. Ary (2004) 118 Cal.App.4th 1016, 1024.) “ ‘Evidence of incompetence may emanate from several sources, including the defendant’s demeanor, irrational behavior, and prior mental evaluations.’ (People v. Rogers, supra, 39 Cal.4th at p. 847.) ‘More is required than just bizarre actions or statements by the defendant to raise a doubt of competency. . . .’ [Citation.]” (People v. Kaplan, supra, 149 Cal.App.4th 372, 383.)
While we agree with defendant that the reports of the appointed experts are not thorough or detailed, we do not for that reason discount the reports as evidence or find the expert opinions unfounded. Of course, the “value of an expert’s opinion depends upon the quality of the material on which the opinion is based and the reasoning used to arrive at the conclusion.” (People v. Marshall, supra, 15 Cal.4th 1, 31–32.) However, defendant’s complaint that the opinions in the reports are based on inadmissible evidence or unsupported by facts is not cognizable here, given that he stipulated to admission of the reports in evidence and a finding by the trial court “on the basis of said reports.” The submission constituted a consent for the court to consider the reports as evidence in determining the issue of his competence. (See In re Ricardo L. (2003) 109 Cal.App.4th 552, 565.) Having agreed to submit the matter of competence on the two psychiatric reports, defendant cannot now challenge the validity of the experts’ conclusions. (People v. Weaver (2001) 26 Cal.4th 876, 904.)
The submission also did not violate any constitutional or statutory principles. (People v. McPeters (1992) 2 Cal.4th 1148, 1169.)
The opinions offered by the experts are both understandably less than definitive, due to the refusal of defendant to speak with them, or even leave his cell. He also failed repeatedly to meet with his attorney, take his medication, accept treatment, or cooperate with the court. Defendant’s extreme obstreperousness in the present case, coupled with his lengthy, documented diagnosis of psychosis and paranoid schizophrenia, justified the conclusions of the experts and his counsel that his mental illness prevented him from rationally assisting in the conduct of his defense. Also, the trial court, defense counsel, and the experts had the opportunity to consider defendant’s criminal history and perceive his current behavior and demeanor as manifestations of incompetence. (See People v. Rogers, supra, 39 Cal.4th 826, 847; People v. Garcia, supra, 159 Cal.App.4th 163, 171; People v. Ary, supra, 118 Cal.App.4th 1016, 1024.) “ ‘A trial court may appropriately take into account its own observations in determining’ ” the competence of the defendant. (People v. Garcia, supra, at p. 171, quoting from People v. Lawley, supra, 27 Cal.4th 102, 136.) As an appellate court we are in no position to appraise a defendant’s conduct, or assess whether it demonstrated incompetence rather than a conscious effort to delay or obstruct the proceedings, and must grant great deference to the trial court’s decision. (People v. Marshall, supra, 15 Cal.4th 1, 33; People v. Kaplan, supra, 149 Cal.App.4th 372, 382–383.) We conclude that the finding of incompetence to stand trial is supported by substantial evidence.
II. The Authorization for Involuntary Medication of Defendant.
Defendant also challenges the order granting the treatment facility authority to administer antipsychotic medication to him involuntarily, which implicates very distinguishable and in many respects more detailed and stringent standards of proof. “The treatment the hospital can administer is not without constitutional limits. An individual has a constitutionally protected liberty interest in avoiding the unwanted administration of antipsychotic medication under the due process clause of the Fourteenth Amendment.” (People v. O’Dell (2005) 126 Cal.App.4th 562, 568; see also Sell v. United States (2003) 539 U.S. 166, 178 (Sell); Washington v. Harper (1990) 494 U.S. 210, 221.) “This same interest is protected under California’s right to privacy, which ‘clearly extends to the right to refuse antipsychotic drugs.’ (In re Qawi (2004) 32 Cal.4th 1, 14 [7 Cal.Rptr.3d 780, 81 P.3d 224]; see also Riese v. St. Mary’s Hospital & Medical Center (1987) 209 Cal.App.3d 1303, 1322–1323 [271 Cal.Rptr. 199].)” (People v. McDuffie (2006) 144 Cal.App.4th 880, 886–887.)
In Sell, supra, 539 U.S. 166, 180–183, the United States Supreme Court delineated that “the government could involuntarily administer antipsychotic drugs on a mentally ill criminal defendant in order to render him competent to stand trial only if four factors were present: ‘(1) “important governmental interests are at stake”; (2) involuntary medication will “significantly further” the concomitant state interests of timely prosecution and a fair trial; (3) “involuntary medication is necessary to further those interests”; and (4) “administration of the drugs is medically appropriate . . . .” ’ [Citations.] The court acknowledged that the question of involuntary medication to restore an accused’s ability to stand trial is different from involuntarily medicating an inmate who is dangerous to himself or others when the refusal to take the medication puts his health gravely at risk. (Sell, at pp. 181–182.)” (Carter v. Superior Court (2006) 141 Cal.App.4th 992, 1000.)
The California Legislature has codified these constitutional principles in section 1370. Under subdivision (a)(2)(B)(ii)(III) of section 1370, “a court may order the involuntary administration of antipsychotic medication to render a defendant competent to stand trial only if it finds that ‘[t]he people have charged the defendant with a serious crime against the person or property; involuntary administration of antipsychotic medication is substantially likely to render the defendant competent to stand trial; the medication is unlikely to have side effects that interfere with the defendant’s ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner; less intrusive treatments are unlikely to have substantially the same results; and antipsychotic medication is in the patient’s best medical interest in light of his or her medical condition.’ [Citation.]” (People v. McDuffie, supra, 144 Cal.App.4th 880, 887.) Section 1370 also separately provides that the court shall issue an order authorizing the treatment facility to involuntarily administer antipsychotic medication to the defendant for two additional reasons: when the defendant lacks capacity to make decisions regarding antipsychotic medication, and “it is probable that serious harm to the physical or mental health of the patient will result” if the defendant’s mental disorder is not treated with antipsychotic medication; or if “the defendant presents, as a result of mental disorder or mental defect, a demonstrated danger of inflicting substantial physical harm on others.” (§ 1370, subds. (a)(2)(B)(ii)(I, II), (a)(2)(B)(iii).) “We review the trial court’s order under the substantial evidence standard of review.” (People v. McDuffie, supra, at p. 887.)
Section 1370, subdivision (a)(2), reads in full as follows: “(2) Prior to making the order directing that the defendant be confined in a state hospital or other treatment facility or placed on outpatient status, the court shall proceed as follows:
The record before us is a bit confusing as to the precise grounds for the order to administer antipsychotic medication. The trial court cited subdivision (a)(2)(B)(ii)(III) of section 1370 as statutory support for the order, but made a finding that defendant lacked capacity to make decisions regarding medication and without treatment “it is probable that serious harm to the physical and mental health of the patient will result” under subdivision (a)(2)(B)(ii)(I) of the statute. For purposes of our review the specific authority for the order is not crucial, as the evidence fails to support any of the reasons specified in section 1370 to justify involuntary administration of antipsychotic medication.
First, since defendant was charged with a criminal offense, found incompetent, and committed to a mental health treatment facility to render him competent to stand trial, we examine the primary justification for ordering defendant to involuntarily receive antipsychotic medication, subdivision (a)(2)(B)(ii)(III) of section 1370. (People v. O’Dell, supra, 126 Cal.App.4th 562, 569–570.) Even if we accord the various reports all the weight to which they are entitled in this appeal, the information in them fails to furnish substantial evidence to support a finding that the factors articulated in subdivision (a)(2)(B)(ii)(III) of section 1370 have been established. The CONREP report, in addition to reciting defendant’s history of paranoid delusional thinking, his lengthy MDO status, and persistent refusal to accept treatment, merely states that he has been “charged with a serious felony,” has been “found incompetent,” and is “very likely to be uncooperative at the state hospital,” so authorization for the “use of involuntary antipsychotic medications to treat his paranoia” is recommended. Several of the factors essential to an order for involuntary medication are not even mentioned in any of the reports. The reports specify defendant’s mental condition – a paranoid delusional state – but fail to discuss or even identify the medication recommended to treat his condition. Without this information the evidence fails to demonstrate that administration of antipsychotic medication is substantially likely to render defendant competent to stand trial and that the particular medication is unlikely to have side effects that would significantly interfere with his ability to assist trial counsel, a blatant constitutional and statutory deficiency. (People v. McDuffie, supra, 144 Cal.App.4th 880, 887; Carter v. Superior Court, supra, 141 Cal.App.4th 992, 1003–1004.) Further, no consideration is given in the reports – even an unsubstantiated reference – to any alternative, less intrusive treatments that may achieve substantially the same results, as is also required. (People v. O’Dell, supra, 126 Cal.App.4th 562, 571–572.) The CONREP report seems to recommend forced use of antipsychotic medication on defendant merely because he has paranoia and will likely remain uncooperative during his competency assessment and treatment. The evidence fails to support the finding that defendant may be involuntarily medicated pursuant to subdivision (a)(2)(B)(ii)(III) of section 1370.
We observe that defendant also submitted the issues of commitment and treatment with antipsychotic medication on the CONREP report. Consequently, as with the reports of the alienists, he cannot complain of deficiencies in the CONREP report.
Nor do we discern in the record evidentiary support for the trial court’s involuntary medication order under the alternative provisions of section 1370, subdivision (a)(2)(B)(ii)(I). Nothing in any of the reports indicates that serious harm to defendant’s physical or mental health will result if his “mental disorder is not treated with antipsychotic medication.” (§ 1370, subd. (a)(2)(B)(ii)(I).) And while Dr. McKinzey’s report contains the cursory reference to defendant’s “danger” given his diagnosis of paranoid schizophrenia, nothing of a factual nature in the reports satisfies the requirements of section 1370, subdivision (a)(2)(B)(ii)(II) – that is, that defendant, as a result of his mental disorder or mental defect, presents a danger of inflicting substantial physical harm on others while in custody. Moreover, the trial court did not find and the prosecution did not seek to justify the medication order based upon defendant’s danger to others. The forced medication order is not supported by substantial evidence. (Carter v. Superior Court, supra, 141 Cal.App.4th 992, 1004–1005.)
DISPOSITION
The finding that defendant is incompetent to stand trial is affirmed; the order that defendant may be involuntarily medicated is reversed.
We concur: Marchiano, P. J., Margulies, J.
“(A) The court shall order the community program director or a designee to evaluate the defendant and to submit to the court within 15 judicial days of the order a written recommendation as to whether the defendant should be required to undergo outpatient treatment, or committed to a state hospital or to any other treatment facility. No person shall be admitted to a state hospital or other treatment facility or placed on outpatient status under this section without having been evaluated by the community program director or a designee.
“(B) The court shall hear and determine whether the defendant, with advice of his or her counsel, consents to the administration of antipsychotic medication, and shall proceed as follows:
“(i) If the defendant, with advice of his or her counsel, consents, the court order of commitment shall include confirmation that antipsychotic medication may be given to the defendant as prescribed by a treating psychiatrist pursuant to the defendant’s consent. The commitment order shall also indicate that, if the defendant withdraws consent for antipsychotic medication, after the treating psychiatrist complies with the provisions of subparagraph (C), the defendant shall be returned to court for a hearing in accordance with this subdivision regarding whether antipsychotic medication shall be administered involuntarily.
“(ii) If the defendant does not consent to the administration of medication, the court shall hear and determine whether any of the following is true:
“(I) The defendant lacks capacity to make decisions regarding antipsychotic medication, the defendant’s mental disorder requires medical treatment with antipsychotic medication, and, if the defendant’s mental disorder is not treated with antipsychotic medication, it is probable that serious harm to the physical or mental health of the patient will result. Probability of serious harm to the physical or mental health of the defendant requires evidence that the defendant is presently suffering adverse effects to his or her physical or mental health, or the defendant has previously suffered these effects as a result of a mental disorder and his or her condition is substantially deteriorating. The fact that a defendant has a diagnosis of a mental disorder does not alone establish probability of serious harm to the physical or mental health of the defendant.
“(II) The defendant is a danger to others, in that the defendant has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm on another while in custody, or the defendant had inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm on another that resulted in his or her being taken into custody, and the defendant presents, as a result of mental disorder or mental defect, a demonstrated danger of inflicting substantial physical harm on others. Demonstrated danger may be based on an assessment of the defendant’s present mental condition, including a consideration of past behavior of the defendant within six years prior to the time the defendant last attempted to inflict, inflicted, or threatened to inflict substantial physical harm on another, and other relevant evidence.
“(III) The people have charged the defendant with a serious crime against the person or property; involuntary administration of antipsychotic medication is substantially likely to render the defendant competent to stand trial; the medication is unlikely to have side effects that interfere with the defendant’s ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner; less intrusive treatments are unlikely to have substantially the same results; and antipsychotic medication is in the patient’s best medical interest in light of his or her medical condition.
“(iii) If the court finds any of the conditions described in clause (ii) to be true, the court shall issue an order authorizing the treatment facility to involuntarily administer antipsychotic medication to the defendant when and as prescribed by the defendant’s treating psychiatrist. The court shall not order involuntary administration of psychotropic medication under subclause (III) of clause (ii) unless the court has first found that the defendant does not meet the criteria for involuntary administration of psychotropic medication under subclause (I) of clause (ii) and does not meet the criteria under subclause (II) of clause (ii).”