Opinion
A115462
5-11-2007
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. DANA RUTH SWENSON, Defendant and Appellant.
NOT TO BE PUBLISHED
The trial court committed Dana Ruth Swenson to Patton State Hospital (Patton) after finding her mentally incompetent to stand trial on several charges. She seeks review of an order authorizing involuntary administration of antipsychotic medication during her commitment, contending there is insufficient evidence to support certain findings that are necessary prerequisites to the order. As explained below, we conclude there is sufficient evidence to support the findings as to one of three statutory conditions, and on that basis affirm the order.
BACKGROUND
A complaint filed August 8, 2006, alleged Swenson had committed a felony violation of Penal Code section 243.1, that is, battery against a custodial officer. (People v. Dana Ruth Swenson (Super. Ct. Sonoma County, 2006, No. 491069) (Case No. SCR 491069).) At the arraignment hearing defense counsel requested a competency hearing pursuant to section 1368. The trial court suspended the criminal proceedings and appointed Dr. Apostle to prepare a competency evaluation. At a hearing on August 10, 2006, the court found Swenson to be incompetent to stand trial on the basis of Dr. Apostles evaluation. After Swenson declined to consent to treatment with antipsychotic medication, the court made additional findings pursuant to section 1370, subdivision (a)(2)(B)(ii), in order to authorize involuntary administration of antipsychotic medication. It based these findings on the same evaluation prepared by Dr. Apostle.
Further statutory references are to the Penal Code.
The evaluation, dated July 27, 2006, had been completed in connection with another complaint pending against Swenson. (People v. Dana Ruth Swenson (Super. Ct. Sonoma County, 2006, No. 491014) (Case No. SCR 491014).)
On August 17, 2006, the court directed Dr. Ranish of Sonoma Countys Department of Health Services to prepare a recommendation letter for Swensons placement. At the placement hearing on August 23, 2006, the court adopted Dr. Ranishs recommendation and committed Swenson to Patton. (§ 1370, subd. (a)(1)(B)(i).)
After further proceedings on September 20 and 25, 2006, the court filed an amended commitment order on September 28, 2006, in which it added its disposition in three other cases. This order found Swenson to be incompetent to stand trial and committed her to Patton in each of the four cases. It further restated the findings authorizing involuntary administration of antipsychotic medication, so as to make them applicable during her commitment in each case.
The complaints in these three cases alleged, respectively, a second felony violation of section 243.1 (People v. Dana Ruth Swenson (Super. Ct. Sonoma County, 2006, No. 494505) (Case No. SCR 494505)), misdemeanor violations of sections 242 (battery) and 602.1, subdivision (a) (interference with business) (Case No. SCR 491014), and a second misdemeanor violation of section 602.1, subdivision (a) (People v. Dana Ruth Swenson (Super. Ct. Sonoma County, 2006, No. 491776) (Case No. SCR 491776)).
The court ordered the commitments to run concurrently. Specifically, it ruled that the maximum sentences, if imposed, would be three years in Case No. SCR 491069 less 71 days credit; three years in Case No. SCR 494505 less 50 days credit; 12 months in Case No. SCR 491014 less 116 days credit; and 12 months in Case No. SCR 491776 less 65 days credit. (See § 1370, subd. (c)(1).)
This appeal followed. (§ 1370, subd. (a) (2)(B)(v); see People v. ODell (2005) 126 Cal.App.4th 562, 566, fn. 2 (ODell).)
DISCUSSION
The due process clause of the federal constitution and Californias constitutional right of privacy protect an individuals interest in avoiding the unwanted administration of antipsychotic drugs. (People v. McDuffie (2006) 144 Cal.App.4th 880, 886-887 (McDuffie).) The requirements of section 1370, subdivision (a)(2)(B)(ii), codify these constitutional protections for those determined to be incompetent to stand trial as criminal defendants. (McDuffie, supra, at p. 887.)
Section 1370, subdivision (a)(2)(B)(ii) permits involuntary administration of antipsychotic medications if a court finds one of three conditions to be true. (See § 1370, subd. (a)(2)(B)(iii).) The first condition requires three findings: that a defendant lacks the capacity to make decisions regarding antipsychotic medication, he or she has a mental disorder that requires treatment with such medication, and it is probable that he or she will suffer serious harm to his or her mental or physical health if the disorder is not so treated. (§ 1370, subd. (a)(2)(B)(ii)(I).) The second condition may be established by findings that a defendant is a danger to others, in that he or she is in custody as a result of inflicting or attempting to inflict substantial physical harm on another, and he or she presents a demonstrated danger of inflicting substantial physical harm on others as a result of a mental disorder or mental defect. (§ 1370, subd. (a)(2)(B)(ii)(II).) The third condition concerns a defendant who has been charged with a serious crime against a person or property. It requires four findings: that the administration of antipsychotic medication is substantially likely to render the defendant competent to stand trial, the medication is unlikely to have side effects that will interfere with the defendants ability to understand the nature of the criminal proceedings or assist counsel in the conduct of a defense in a reasonable manner, less intrusive treatments are unlikely to have substantially the same results, and the antipsychotic medication is in the patients best medical interest in light of his or her medical condition. (§ 1370, subd. (a)(2)(B)(ii)(III).)
In this instance, the trial court made findings relating to all three conditions. It found, first, that Swenson "lacks capacity to consent to medication," her "mental disorder requires medical treatment with antipsychotic medication," and "[i]f not treated with such medication, serious harm to [her] mental or physical health will result." The court found, second, that Swenson "is a danger to others." Finally, it found that Swenson had been "charged with a serious crime," "[t]he medication is unlikely to have side effects that interfere with [her] ability to become competent and assist in the conduct of a defense in a reasonable manner," "[l]ess intrusive treatments are unlikely to have substantially the same results," and "[a]dministration of antipsychotic medication is in [her] best medical interest."
Swenson contends there is insufficient evidence to support certain of these findings, and hence the evidence fails to establish any of the three conditions on which the order authorizing involuntary administration of antipsychotic medication may properly be based. Respondent concedes the evidence is not sufficient to sustain the order on the basis of the third condition—that which concerns treatment in order to render a defendant competent to stand trial. (§ 1370, subd. (a)(2)(B)(ii)(III).) Hence, we address only the findings relating to the first and second conditions for involuntary treatment, which are set out respectively in section 1370, subdivision (a)(2)(B)(ii)(I) and (II). Our review is limited to a determination whether the requisite findings are supported by substantial evidence. (ODell, supra, 126 Cal.App.4th at p. 570.)
With regard to the first condition, Swenson argues there is no evidence to support the finding that her disorder requires treatment with antipsychotic medication, and nothing in the record to support the finding that she will probably suffer serious harm if her disorder is not so treated. As for the second condition, Swenson concedes there is evidence to support the courts finding that she is a danger to others, in that she was placed in custody after inflicting or attempting to inflict substantial physical harm on another. She argues, however, that constitutional due process imposes an additional, implied element. Specifically, she cites Washington v. Harper (1990) 494 U.S. 210 (Harper) for the proposition that the trial court was required to find not only that she is a danger to others, but also that treatment with antipsychotic medication is in her "medical interest." Her position is that the evidence does not support such a finding.
As previously noted, the court based its findings on an evaluation prepared by Dr. Apostle. In this report, Apostle initially describes a recent police report concerning an incident that occurred on July 4, 2006—evidently the incident that led to the misdemeanor charges alleged in Case No. SCR 491014. Swenson reportedly had entered a bar "yelling and screaming at the patrons," "could not be subdued verbally," and had "thrown a beer bottle at the bartender after she refused to leave." Apostle noted the incident had resulted in Swensons "ninth arrest since July 2005 for having violent behavior."
The report next summarized Apostles review of Swensons prior mental health records. These described a history of "inappropriate behaviors at local stores with trespassing and disrupting customers," as well as "numerous contacts" with county jail "mental health examiners" and the countys "Psychiatric Emergency Service." Previous diagnoses included "post-traumatic stress disorder, dementia due to head trauma, substance abuse, schizo-affective disorder and borderline personality disorder," the last of which was Swensons primary diagnoses. An evaluation prepared for the court in March 2006 stated that the "collective opinion of numerous examiners [was] that [Swenson] could not be restored to competency because of a deeply rooted constellation of psychopathology and characterlogical issues including emotional liability, rejection sensitivity, limited psychological defenses, and lack of insight." Recent evaluations had described her as "disorganized, preoccupied, having poor memory, loose thoughts, and grossly impaired judgment," and had noted her "oppositional and defiant" behavior. Apostle further noted the possibility of "organic personality disorder." He said that, in an examination conducted on July 5, 2006, Swenson had "refused medication, but medications have had minimal effect on [her]." In April 2006, Swenson reportedly "did poorly" at the countys inpatient psychiatric unit, "not responding much to Haldol or Risperdal, both of which are antipsychotic medications."
During Apostles examination, Swenson exhibited "brief periods of lucidity," but for the most part appeared "angry and rambling," "somewhat paranoid," and "tangential" in her responses to questions. In the final diagnostic segment of the evaluation, Apostle stated that Swenson "is clearly incompetent to stand trial," and "is severely and chronically mentally ill with a very poor prognosis." He recommended that she be placed in a "legal conservatorship if possible." His conclusions concerning medication were that Swenson "is not competent to give informed consent" about mood stabilizers, anti-anxiety medication, and antipsychotic medication. He noted that "if unwilling to use [such] medicines orally, they can be injected by muscle," and described certain side effects of these classes of medication. However, he immediately qualified this statement by reiterating that "Swenson has not responded well to medication in the past due to her profound personality disorder." (Italics added.) Apostle concluded by recommending long-term institutional care.
We agree that the foregoing evaluation does not provide substantial evidence to support the trial courts findings that Swensons mental disorder "requires" treatment with antipsychotic medication and that, if not so treated, she will suffer "serious harm to [her] physical or mental health." To the contrary, the evaluation emphasizes that medications have produced a minimal effect, Swenson has not previously responded well to treatment with prescribed antipsychotic medication at the countys mental health hospital, and the report includes nothing whatsoever to indicate a probability that Swenson will suffer harm to her health in the absence of such treatment. This may be the case, but we cannot extrapolate such a finding from an absent record.
As for the second condition, the statute requires only that "[t]he defendant is a danger to others, in that [he or she] has inflicted . . . substantial physical harm on another that resulted in his or her being taken into custody, and [he or she] presents, as a result of mental disorder . . . a demonstrated danger of inflicting substantial physical harm on others." (§ 1370, subd. (a)(2)(B)(ii)(II).) In Harper, the United States Supreme Court held that constitutional due process "permits the State to treat a[n] . . . inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmates medical interest." (Harper, supra, 494 U.S. at p. 227.) But that court later had occasion to detail the factors that must be considered when the purpose of involuntary medication is to restore a defendant to competency to stand trial. (Sell v. United States (2003) 539 U.S. 166 (Sell).) These include the question whether the medication is "medically appropriate, i.e., in the patients best medical interest in light of his medical condition." (Id. at p. 181; cf. § 1370, subd. (a)(2)(B)(ii)(III).) The court in Sell went on to suggest that it is not necessary to reach a consideration of these factors when involuntary medication is justified for the alternate "purposes set out in Harper related to the individuals dangerousness . . . ." (Sell, supra, 539 U.S. at pp. 181-182.) Our own Supreme Court has cited this language in Sell in support of its holding—in the context of a civil commitment—that involuntary treatment with antipsychotic drugs does not violate constitutional due process in the case of a patient found to be a " `demonstrated danger to others." (In re Qawi (2004) 32 Cal.4th 1, 20 (Qawi).) This holding validated provisions of the Lanterman-Petris-Short Act very similar to those set out in section 1370, subdivision (a)(2)(B)(ii)(II). (Qawi, supra, 32 Cal.4th at p. 20; see Welf. & Inst. Code, §§ 5300, 5300.5.)
Swenson has conceded that the evidence of her arrests, mental disorder, and medical history was sufficient to support the statutory findings set out in section 1370, subdivision (a)(2)(B)(ii)(II). Following Qawi, supra, 32 Cal.4th 1, under the record of this case we decline to imply a need for additional findings to satisfy constitutional due process. We conclude there is substantial evidence to support the findings required by section 1370, subdivision (a)(2)(B)(ii)(II).
DISPOSITION
The amended commitment order filed September 28, 2006, is affirmed.
We concur:
Stein, J.
Swager, J.