Opinion
A154155
09-11-2019
THE PEOPLE, Plaintiff and Respondent, v. DARRYL P. WILLINGHAM, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. 17014431)
Darryl P. Willingham was found incompetent to stand trial and committed for treatment to restore him to competency. The trial court determined Willingham lacked the capacity to decide whether to take antipsychotic drugs and, without the drugs, he would likely suffer serious harm to his health. It ordered him to be involuntarily medicated under Penal Code section 1370, subdivision (a)(2)(B)(i)(I). We affirm the order.
All statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
A.
Individuals have a qualified right to refuse antipsychotic medication under the federal and state constitutions. (Sell v. United States (2003) 539 U.S. 166, 178; In re Qawi (2004) 32 Cal.4th 1, 14-16.) State prison inmates may do so unless "the inmate is dangerous to himself or others and the treatment is in the inmate's medical interest." (Washington v. Harper (1990) 494 U.S. 210, 227.) Pretrial detainees are entitled to at least the same protection. (Riggins v. Nevada (1992) 504 U.S. 127, 135.)
In 2004, the California Legislature amended section 1370 to meet modern constitutional standards. (People v. Lameed (2016) 247 Cal.App.4th 381, 396 (Lameed).) Among those amendments, the Legislature added subdivision (a)(2)(B), which permits involuntary medication in three circumstances: (1) a defendant lacks the capacity to make decisions regarding antipsychotic medication, and it is necessary to protect the defendant's health; (2) the defendant is a danger to others; or (3) involuntary medication is necessary to restore the defendant to competence for trial. (§ 1370, subd. (a)(2)(B)(i)(I)-(III); see Lameed, at p. 396.)
At issue here is the first category: the trial court ordered Willingham to be medicated to protect his health.
B.
In September 2017, Willingham allegedly violated a restraining order by leaving voicemails on his ex-wife's phone and going to the bar she owned, where he threatened to kill her husband. He was charged with violating sex offender registration requirements; stalking in violation of a restraining order; making criminal threats; and violating a restraining order. It was alleged he had prior convictions for rape and false imprisonment in 1992 and failure to register as a sex offender in 2010.
C.
During October 2017 court hearings, Willingham said he was Jesus Christ and declared that destruction would be visited upon everyone in the courtroom. The court declared a doubt about Willingham's competence, suspended criminal proceedings, and appointed an expert to evaluate him.
Hugh Molesworth, Ph.D., a psychologist, opined that Willingham was incompetent to stand trial. He diagnosed Willingham with a disorder on the schizophrenia spectrum with fixed grandiose and persecutory delusions. Willingham was incompetent because he could not assist counsel in a rational manner, as he believed that his public defender, the prosecutor and the judge were all part of a vast conspiracy against him.
Dr. Molesworth concluded that Willingham had the capacity to make decisions regarding antipsychotic medication. Willingham was taking a half-milligram of Risperidone a day at that time. Willingham told Dr. Molesworth he found the drug helped keep him focused although "he went on to say the plumbing system in the jail had been rerouted so that all the toilets in the jail flushed up into his cell and the doctors had done nothing about it." Dr. Molesworth reported Willingham had "no insight into his mental health problems." Dr. Molesworth also opined that antipsychotic medication was necessary to restore Willingham to competence and, without it, his condition would remain the same.
In November 2017, the court found Willingham incompetent to stand trial and ordered him committed for treatment. The commitment order stated Willingham had agreed to take antipsychotic medication. (See § 1370, subd. (a)(2)(B)(iv).) On March 7, 2018, Willingham was transferred to the Jail Based Competency Treatment Program in a Sacramento County jail.
Soon thereafter, Willingham's treating psychiatrist, Richard A. Cross, M.D., determined that a daily dose of a half-milligram of Risperidone was inadequate for Willingham, but Willingham refused to take a larger dose. Dr. Cross then opined that involuntary medication of Willingham was warranted on both health and dangerousness grounds. (Because we uphold the order on the health ground, we do not consider the dangerousness ground.) "He has a delusional belief system that he is Jesus Christ, and others are attempting to sabotage him. His thoughts are disorganized, his speech is pressured . . . and his mood is irritable and antagonistic." "He is unable to reflect rational understanding of the presence and severity of his psychiatric condition, and is unable to cooperate with treatment recommendations based on his inability to understand his need for treatment." Dr. Cross warned, "His overall mental health stability and prognosis can be expected to decline so long as his condition is not under adequate treatment."
On April 2, 2018, staff treating Willingham stated in a progress report that Willingham had not achieved trial competency and was not likely to do so in the foreseeable future without an involuntary medication order requiring him to take six milligrams of Risperidone per day. (See § 1370, subds. (a)(2)(B)(vi), (b)(1).) Willingham told staff "he does not need medication and medicating him is part of the conspiracy." He also suffered delusions: he loudly told staff he was "the second coming of Christ"; he "got the KKK arrested" and "expose[d] corruption all over the world"; his incarceration on phony charges was part of a conspiracy to retaliate against him; and "most (if not all) of the disasters and tragedies (shootings, natural disasters, etc. . .) have been in response to the mistreatment" of him.
On April 11, 2018, the court held a hearing on whether to order involuntary medication. Dr. Cross testified at the hearing. The court ordered Willingham to be involuntarily medicated with six milligrams of Risperidone per day, as recommended by Dr. Cross.
DISCUSSION
A.
We review an involuntary medication order for substantial evidence. (People v. Lameed, supra, 247 Cal.App.4th at p. 397.) Under this standard, an appellate court reviews "the whole record in the light most favorable to the [order] below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value. . . ." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Willingham contends the trial court's order must be supported by clear and convincing evidence. Our Supreme Court has explained that the clear and convincing standard is an evidentiary standard at trial; it does not affect the traditional substantial evidence standard of review on appeal. (Crail v. Blakely (1973) 8 Cal.3d 744, 750; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group, 2019), §8.63).
We express no opinion on the standard of proof applied in the trial court. The trial court did not articulate the standard precisely, although it did state that the evidence "does meet the high burden here." Because Willingham failed to clarify the issue in the trial court and points us to no evidence demonstrating error, we assume that the trial court applied the proper standard. (See In re Merrick V. (2004) 122 Cal.App.4th 235, 254; Shupe v. Nelson (1967) 254 Cal.App.2d 693, 700.)
B.
Prior to ordering mandatory medication to protect a prisoner's health, the trial court must find: "[1] The defendant lacks capacity to make decisions regarding antipsychotic medication, [2] the defendant's mental disorder requires medical treatment with antipsychotic medication, and [3] 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." (§ 1370, subd. (a)(2)(B)(i)(I).) Willingham focuses on the first and third elements.
1.
Substantial evidence supports the court's determination that Willingham lacked capacity to make decisions regarding antipsychotic medication.
The record strongly shows Willingham did not understand his diagnosis or treatment options and was unable to rationally discuss them. (Cf. Riese v. St Mary's Hosp. & Med. Ctr. (1987) 209 Cal.App.3d 1303, 1322-23 [in civil commitments, factors to evaluate capacity include patient's awareness of the situation, ability to understand alternatives, and ability to rationally participate in treatment decisions].) Dr. Cross testified: "My interviews with him consist of him loudly and angrily declaring how the process is unfair; that the government is trying to get revenge on him for what he has done related to the [Ku] Klux Klan in the past, et cetera. [¶] I made a few attempts to try to have a more reasonable or rational discussion about his need for treatment, medication options, et cetera[,] but I just can't have that discussion with him." He added, "I find him completely unable to have a rational discussion about his treatment." Dr. Cross also reported, "He is unable to reflect rational understanding of the presence and severity of his psychiatric condition, and is unable to cooperate with treatment recommendations based on his inability to understand his need for treatment." As recounted in the facts, there is ample evidence of Willingham's various delusions and anger. Staff at the treatment program reported Willingham told them he "does not need medication and that medicating him is part of the conspiracy."
This evidence—which Willingham ignores (see Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874 [reviewing court considers entire record])—suffices to support the court's finding on lack of capacity. (See Lameed, supra, 247 Cal.App.4th at pp. 399-400 [similar evidence supported finding defendant lacked capacity].)
It is inapposite that Dr. Molesworth opined earlier that Willingham did have the capacity to make medication decisions. At most this created a conflict of evidence for the trial court to resolve. (See Shamblin v. Brattain (1988) 44 Cal.3d 474, 479 [when evidence conflicts, "the reviewing court has no authority to substitute its decision for that of the trial court."].) Dr. Cross cited several reasons why Dr. Molesworth's assessment was unreliable: Willingham was delusional despite voluntarily taking a low dose of Risperidone, indicating he lacked understanding of his mental condition or the ability to rationally weigh the pros and cons of medication; as a psychologist, Dr. Molesworth lacked the training and experience necessary to assess capacity or inform Willingham about the pros and cons of various medication regimes; and Dr. Molesworth did not report that he discussed those pros and cons with Willingham. The record supports the trial court's decision to credit Dr. Cross's testimony.
2.
Turning to the second element, it is essentially undisputed that six milligrams of Risperidone per day was medically appropriate for Willingham's condition. Dr. Cross testified the typical dose range for Risperidone was between two and six milligrams per day, and "[i]n a full-grown, adult man who is otherwise healthy and as symptomatic as [Willingham] is, in my experience 6 milligrams is necessary in order to convey . . . any benefit."
3.
Finally, there was substantial evidence satisfying the third element: "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." (§ 1370(a)(2)(B)(i)(I).) The Legislature explained: "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." (Ibid.) Here, the trial court's finding does not rest solely on Willingham's diagnosis.
There was substantial evidence that Willingham was presently suffering from delusions, paranoia, pressured speech, disorganized thoughts, and antagonistic moods. Dr. Cross described his psychotic illness as "severe," and he explained that, left untreated, his condition will worsen: "if a person has schizophrenia and they remain in a psychotic state of mind, . . . it's damaging to their overall prognosis and can make the illness harder to treat over time." Similarly, in his report to the court, Dr. Cross stated Willingham's "overall mental health stability and prognosis can be expected to decline so long as his condition is not under adequate treatment." (See Lameed, supra, 247 Cal.App.4th at pp. 400-401.)
Willingham insists this is insufficient. He contends "mere symptoms" of a mental disorder are not adverse effects. Perhaps that is true in some cases. (Cf. In re Qaw, supra, 32 Cal.4th at p. 17 [some mentally ill persons can function in a competent manner].) But we cannot agree that, as a matter of law, the debilitating effects of Willingham's mental illness are not adverse or harmful to him. We also reject Willingham's argument that Dr. Cross's prognosis is irrelevant because it merely suggests harm in the future. Dr. Cross's opinion—that without medication Willingham's mental health will further decline and will be harder to treat—tracks the language of the statute. (§ 1370(a)(2)(B)(i)(I) ["if the defendant's mental disorder is not treated with antipsychotic medication, it is probable that serious harm to the . . . mental health of the patient will result."].) In any event, as explained above, substantial evidence supports a finding that Willingham is presently suffering adverse effects to his mental health. (§ 1370(a)(2)(B)(i)(I).)
Lastly, Willingham points to Dr. Molesworth's opinion that, without medication, Willingham's condition will remain the same. Again, at most this is a conflict in the evidence that the trial court resolved, and the record supports the court's decision to credit Dr. Cross's opinion on medication rather than Dr. Molesworth's. (See Shamblin, supra, 44 Cal.3d at p. 479.)
C.
We decline to address Willingham's argument that we should apply retroactively a new law that caps the maximum commitment period at two years, rather than the three years that applied at the time of the court's order. (Compare, former § 1370, subd. (c)(1) as amended by Stats. 2017, ch. 17, § 30, effective June 27, 2017, and § 1370, subd. (c)(1), as amended by Stats. 2018, ch. 1008, § 2., effective January 1, 2019.) The issue is not ripe for adjudication in this case.
The situation might be quite different on December 27, 2019, the two-year anniversary of Willingham's commitment. Willingham might be restored to competence by that date. (§§ 1370, subd. (a)(1)(C), 1372, subd. (a)(1) & (d).) The medical director overseeing Willingham's treatment might determine Willingham is unlikely to regain competence, at which point, depending on the circumstances, the court might initiate conservatorship proceedings (§ 1370, subd. (b)(1) & (c)(2)) or dismiss the charges. (§§ 1370, subd. (d), 1385.) The order authorizing involuntary medication is valid initially for one year and must be periodically reviewed, which will further develop the factual record. (§ 1370(a)(7)(A).) At any time, Willingham may file a petition for habeas corpus to challenge the continuing validity of the order. (§ 1370, subd. (h).)
Because Willingham's status in December 2019 is a matter of conjecture, it is inappropriate to consider whether the new law would compel his release at that time. (See People v. Garcia (2018) 30 Cal.App.5th 316, 328-329 [ripeness doctrine prevents courts from issuing advisory opinions or considering hypothetical facts].) For this same reason, we deny as irrelevant the People's request for judicial notice of legislative materials related to the recent amendments. Finally, although we decline to reach the retroactivity issue, we do not suggest that Willingham's position is without merit.
Willingham's request for calendar preference is denied. --------
DISPOSITION
The April 11, 2018 order authorizing the involuntary administration of antipsychotic drugs to Willingham is affirmed.
/s/_________
Burns, J. We concur: /s/_________
Jones, P.J. /s/_________
Needham, J.