State Dep't of State Hosps. v. J.W.

In January 2018, as appellant neared the end of that year of treatment, respondent filed a "Petition for Renewal of an Order to Compel Involuntary Treatment with Antipsychotic Medication In re Calhoun (2004) 121 Cal.App.4th 1315 , 18 Cal.Rptr.3d 315 ." In the petition, respondent alleged appellant had a history of noncompliance with taking medications for his diagnosed mental illness, that he was incompetent to refuse medical treatment, and that he presented a danger to others without medication. Respondent admitted that appellant did not have any significant aggressive, assaultive, or threatening behavior in the past year, a time during which he was medicated, but believed appellant would relapse if his medication was discontinued and noted there were no less intrusive methods to render him nondangerous. Respondent sought to justify the order on the premise appellant was incompetent under Riese v. St. Mary's Hospital & Medical Center (1987) 209 Cal.App.3d 1303 , 271 Cal.Rptr. 199 ( Riese ) and such a finding applied to individuals committed pursuant to the SVPA.

Appellant was notified of the petition and appointed counsel to represent him. At the subsequent hearing on March 19, 2018, the court bifurcated the competence and dangerousness issues and proceeded only on whether appellant was competent to refuse medical treatment. Respondent called Dr. Luyen Luu who provided testimony about appellant's mental condition and treatment. Dr. Luu testified appellant was diagnosed with bipolar disorder and that he showed signs of delusional behavior, such as believing staff are part of the Mafia or the Bulldog gang. Appellant also regularly alleged he was having chest pains or had been raped by staff. He was therefore placed on enhanced observation, where a "sitter" stayed with him. When provided a male sitter he attempted to attack them. When provided a female sitter he masturbated in front of them.

Dr. Luu testified appellant initially claimed not to have a mental illness and not to need medication but was more receptive after being medicated. She further noted appellant has a history of refusing to take his medication and has stated he would not continue taking one of his medications without an order. Although appellant complained of side effects from his medication, Dr. Luu testified to her opinion that the benefits of medication outweighed the side effects. Ultimately, Dr. Luu testified appellant needed to be medicated and that he did not have the capacity to make decisions regarding taking his

Following the testimony, the court granted the requested order to compel involuntary treatment on the ground appellant "lacks the capacity to refuse treatment." This appeal timely followed.

DISCUSSION

Appellant directly challenges the authority of the trial court to order he undergo involuntary medication on the ground he has not been committed to the State Hospital as a sexually violent predator (SVP) under the SVPA. He contends any failure to raise this complaint, if deemed to forfeit the issue on appeal, constitutes ineffective assistance of counsel. As an alternative argument, appellant contends that, should he be considered committed under the SVPA, his commitment is invalid because he has not received due process of law. Relatedly, on the alternative theory appellant is considered committed, he claims he has suffered an equal protection violation because his commitment, authorizing his subsequent medication order, is based on probable cause, not proof beyond a reasonable doubt.

Respondent does not contend appellant qualifies as a SVP under the SVPA, but rather argues In re Calhoun, supra, 121 Cal.App.4th 1315 , 18 Cal.Rptr.3d 315 ( In re Calhoun ) authorizes involuntary medical treatment of incompetent "civil detainees" who have been admitted to the State Hospital upon a probable cause finding under section 6602. Respondent further contends that its duly authorized regulations permit it to involuntarily medicate civil detainees admitted under section 6602.

After reviewing the briefing in this matter, we requested supplemental briefing on whether the SVPA provides authorization for commitment of those held on probable cause under section 6602.5 and People v. Ciancio (2003) 109 Cal.App.4th 175 , 134 Cal.Rptr.2d 531 ( Ciancio ). Appellant argued against such authorization and renews his equal protection argument if authorization is found because the ability to involuntary medicate a patient under the statute depends upon a finding, made beyond a reasonable doubt, that they are a SVP. Respondent argued section 6602.5, as discussed in Ciancio, does support its conduct and that appellant's equal protection argument fails by conflating the legal requirements for commitment with the legal requirements for treatment.

Once the petition for commitment is filed, "a judge of the superior court shall review the petition and determine whether the petition states or contains sufficient facts that, if true, would constitute probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release." (§ 6601.5.) If the court reaches this conclusion from its facial review, it must schedule a probable cause hearing within 10 calendar days. (§ 6601.5.) Such a finding also tolls that person's impending parole "pursuant to paragraph (4) of subdivision (a) of section 3000 of the Penal Code." (§ 6601, subd. (j).)

At the subsequent probable cause hearing, "[a] judge of the superior court shall

One held on probable cause under the SVPA remains in custody until the conclusion of a trial to determine whether they are a SVP. The person is entitled to a trial by jury, the assistance of counsel, the right to retain experts, and access to all relevant medical and psychological records and reports. (§ 6603, subd. (a).) If indigent, the court shall appoint counsel. (§ 6603, subd. (a).) The verdict at the trial must be unanimous and reached upon proof beyond a reasonable doubt. (§§ 6603, subd. (f), 6604.) If this standard is not met, the person shall be released at the end of their original sentence or period of parole. If it is met, the person is then "committed for an indeterminate term to the custody of the State Department of State Hospitals for appropriate treatment and confinement." (§ 6604.) Notably, there is no required timeframe for completing the commitment trial. ( People v. Talhelm (2000) 85 Cal.App.4th 400 , 407-408, 102 Cal.Rptr.2d 150 .)

Following commitment comes the opportunity for treatment. "A person who is committed under this article shall be provided with programming by the State Department of State Hospitals which shall afford the person with treatment for his or her diagnosed mental disorder. Persons who decline treatment shall be offered the opportunity to participate in treatment on at least a monthly basis." (§ 6606, subd. (a).) Upon adequate improvement under the statutory guidelines, one committed to the State Hospital can be placed in an outpatient treatment program, or either conditionally or unconditionally released. (§§ 6606, 6607, 6608.) Regardless, while committed, a person subject to the SVPA will be evaluated annually. (§ 6604.9.)

Standard of Review and Applicable Law

A competent adult has a common law and constitutional right to refuse medical

To the extent the court's authorization to act turns upon statutory interpretation, these principles are well settled. (See Ciancio , supra , 109 Cal.App.4th at p. 195, 134 Cal.Rptr.2d 531 .) " 'We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning.' [Citation.] We keep in mind that the words of the statute are to be construed in the context of the statutory framework of which the statute is a part, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. [Citations.] 'When the language of a statute is clear, we need go no further.' " ( Stanislaus County Deputy Sheriffs' Assn. v. County of Stanislaus (2016) 2 Cal.App.5th 368 , 376, 205 Cal.Rptr.3d 847 .)

The Trial Court's Authority to Order Treatment

Appellant argues there is no authority to involuntarily medicate a person held on probable cause under the SVPA. According to his argument, In re Calhoun only authorizes the involuntary medication of committed SVP's and can only do so because a person committed under the SVPA has been found to satisfy the statutory criteria under the beyond a reasonable doubt standard. While we recognize that neither In re Calhoun nor section 6606 provide direct authorization for the involuntary medication of pretrial detainees under the SVPA, Ciancio does find statutory authority for treating pretrial detainees in section 6602.5. Moreover, the extensive discussion of the statutory and constitutional rights surrounding involuntary medication contained in both In re Qawi and In re Calhoun demonstrate that the court has the authority to order the involuntary

Ciancio resolves this question. In Ciancio , several persons alleged to be SVP's under the SVPA, some of whom had undergone a probable cause hearing, were being detained pending trial in the county jail in Los Angeles. ( Ciancio , supra , 109 Cal.App.4th at pp. 180-181, 134 Cal.Rptr.2d 531 .) These individuals sought the housing and treatment that would be provided once they were found to be SVP's during the period they waited for their

DISPOSITION

The order is affirmed. Appellant's request for judicial notice filed on April 25, 2018, is denied as moot.

WE CONCUR:

POOCHIGIAN, J.

SMITH, J.

On April 3, 2017, appellant appeared before the court facing a petition to compel involuntary treatment with psychotropic medication for a mentally disordered offender patient pursuant to In re Qawi (2004) 32 Cal.4th 1 , 7 Cal.Rptr.3d 780 , 81 P.3d 224 ( In re Qawi ). At that time, the court found that appellant was not "a court adjudicated Mentally Disordered Offender" but rather had been "committed pursuant to [the SVPA] under [section] 6602." The court further found, at that time, that appellant lacked the capacity to refuse

On cross-examination, Dr. Luu agreed appellant seemed to be working with his doctors on treatment options. Testifying on his own behalf, appellant

Section 6600 et seq. sets forth statutory authority and procedures for civilly committing a person designated as a SVP after they have completed a criminal sentence. The legislative history underlying this act shows the Legislature found "a small but extremely dangerous group of [SVP's] that have diagnosable mental disorders can be identified while they are incarcerated. These persons are not safe to be at large and if released represent a danger to the health and safety of others in that they are likely to engage in acts of sexual violence." (Stats. 1995, ch. 763, § 1, p. 5107.) The legislation sought "to identify these individuals prior to the expiration of their terms of imprisonment" and "if found to be likely to commit acts of sexually violent criminal behavior beyond a reasonable doubt, ... confine[ ] and treat[ ] [them] until such time that it can be determined that they no longer present a threat to society." ( Ibid. ) The Legislature further found "that while these individuals have been duly punished for their criminal acts, they are, if adjudicated [SVP's], a continuing threat to society." ( Ibid. ) Thus, the Legislature intended "that these individuals be committed and treated for their disorders only as long as the disorders persist and not for any punitive purposes." ( Ibid. )

Under the statutory scheme, a SVP is "a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." ( § 6600, subd. (a)(1).) In this context, a diagnosed mental disorder "includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others." ( § 6600, subd. (c).)

In general, at least six months prior to the scheduled release date for a person in custody that "may be a [SVP]," the Department of Corrections and Rehabilitation refers that person for an evaluation. (§ 6601, subd. (a)(1).) The person is first administratively screened, then, if likely to be a SVP, referred for a full evaluation. (§ 6601, subd. (b).) The evaluation is undertaken, in part, by two psychologists or psychiatrists who both must agree the person

The superior court shall determine competence to refuse treatment by clear and convincing evidence, "so clear as to leave no substantial doubt, [and] sufficiently strong to command the unhesitating assent of every reasonable

We begin with In re Calhoun and the statutory authorization for treatment under section 6606. Section 6606 requires the State Hospital provide

As stated in In re Qawi , however, the state's parens patriae authority creates an interest in the state " 'providing care to its citizens who are unable ... to care for themselves,' " that "may be used only to impose unwanted medical treatment on an adult when that adult has been adjudged incompetent." ( In re Qawi , supra , 32 Cal.4th at pp. 15-16, 7 Cal.Rptr.3d 780 , 81 P.3d 224 .) Thus, the counterpoint to the discussion in In re Calhoun and In re Qawi is that upon a finding of incompetence a person's right to refuse legally permissible medical treatment is constrained. As explained in another context in Riese , "absent a judicial determination of incompetence, antipsychotic drugs cannot be administered" without the informed consent of one who is being involuntarily treated under the Lanterman-Petris-Short Act, the legal framework expounding the rights of mentally ill citizens not subject to other penal or societal safety interests. ( Riese , supra , 209 Cal.App.3d at p. 1320, 271 Cal.Rptr. 199 .)

To ensure the right to refuse medication is protected, a judicial determination of incapacity based on clear and convincing evidence following an evidentiary hearing is required before involuntary medication is permitted. ( Riese , supra , 209 Cal.App.3d at p. 1322, 271 Cal.Rptr. 199 .) This fundamental concept, equally recognized with respect to prisoners, mentally disordered offenders, and SVP's in In re Calhoun , and those that are mentally ill but not confined in Riese , does not arise from the express holdings of In re Calhoun but from the long-standing common law and statutory schemes discussed. Accordingly, to the extent appellant is subject to legally permissible medical treatment from the State Hospital, a proper adjudication of his competence can result in the removal of his right to refuse such treatment without violating his due process or equal protection rights due to the fact he was not committed under a finding he was a SVP beyond a reasonable doubt.

The question therefore becomes, under what authority may the State Hospital provide treatment for a person held over for trial under the SVPA? As noted, mandatory treatment is required upon commitment to the State Hospital pursuant to section 6606. Further, absent a judicial decision to send

Under Ciancio , the trial court had the discretion to send appellant to the State Hospital following its probable cause determination and, relevant to that right, maintained the discretion to order treatment at the State Hospital while appellant was there. The record demonstrates that appellant was transferred to the State Hospital pursuant to section 6602.5. Once there, the State Hospital requested and received a judicial determination that appellant was incompetent to refuse medical treatment based on his severe mental illness and later sought to renew that determination after a year had passed. The court's discretionary authority to send appellant to the State Hospital and to receive treatment following the probable cause determination necessarily included the authority and responsibility to determine appellant's competence should he refuse that treatment. (See Riese , supra , 209 Cal.App.3d at p. 1321, 271 Cal.Rptr. 199 ["Consequently, the task for the court is simply to determine whether a patient refusing medication is competent to do so despite his or her mental illness. The determination of this capacity 'is uniquely a judicial, not a medical function' "].)

We therefore conclude that, although appellant has not been committed to the State Hospital, the trial court has the discretionary authority under