Filed 9/23/10 P. v. Villanueva CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, v. MARY VICTORIA VILLANUEVA, Defendant and Appellant. A127300 (Solano County Super. Ct. No. FCR270760) The trial court found defendant not competent to stand trial within the meaning of Penal Code section 1368, 1 ordered defendant committed to the state hospital, and authorized the administration of involuntary psychiatric medication to defendant. On appeal, defendant contends that the court violated her right to the assistance of counsel by denying without a hearing her motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Defendant also asserts that the record does not support the court s authorizing the state hospital to administer involuntary psychiatric medication to her. The People agree that the lower court erred by refusing to hear defendant s Marsden motion, but maintain that substantial evidence supports the order of involuntary psychiatric medication. We conclude that both of defendant s arguments have merit. 1 All further unspecified code sections refer to the Penal Code. 1
BACKGROUND On October 2, 2009, defendant was charged with attempted kidnapping ( 207, subd. (a), 664). That same day, the court appointed a public defender to represent defendant, and defendant entered a plea of not guilty. On October 13, 2009, defendant s counsel declared a doubt about defendant s competency to stand trial and understand the proceedings. The trial court suspended criminal proceedings and appointed psychologists Kathleen O Meara, Ph.D., and Janice Nakagawa, Ph.D., to examine defendant s mental competence. O Meara provided the court with her report, which explained that defendant s committing offense was an attempt to grab a child from the child s mother; defendant claimed the child belonged to her. O Meara opined that defendant had significant chronic mental health problems and corresponding poor compliance with prescribed psychotropic medications. She diagnosed defendant with chronic paranoid schizophrenia. She reported that defendant told her that she would not take her psychiatric medication because it would cause her internal organs to shut down, due to her post-traumatic stress disorder. Defendant claimed that her parents are Prince Charles and Camilla Parker-Bowles and that her father is her lawyer. O Meara stated that defendant s [c]ognitive process are markedly impaired. She added, She is very delusional and unable to provide accurate historical information. O Meara concluded that defendant is a very mentally ill woman who is not competent to stand trial. As to medication, O Meara wrote the following: Defendant s mental illness impairs her ability to make sound decisions about her own treatment and therefore she is unable to accept or refuse antipsychotic medication as part of her treatment. Under these circumstances, it would be in her best interest to receive medication involuntarily as part of treatment to help her regain competency. The appropriate personnel at a state psychiatric facility should have the authority to decide which medications are most beneficial to her.... 2
Nakagawa also submitted her report to the court. Nakagawa opined that defendant had an adequate understanding of courtroom procedures and roles and functions of courtroom officials. However, she cautioned that defendant was floridly psychotic and was unable to discuss in any rational way issues related to the pending legal charges. She specified that defendant evidenced grandiosity, markedly delusional thoughts, and paranoia. Speech was very pressured. She was not able to focus in any coherent, logical way about, for example, how she ended up in custody at the present time. When discussing medications, Nakagawa stated, The defendant insists she has no mental health problems and refuses to consider taking any psychotropic medication. Nakagawa concluded that defendant s capacity to make decisions regarding antipsychotic medication was impaired and that [a]ntipsychotic medication is medically appropriate for the defendant and likely will restore her competence. On November 3, 2009, after the court had received the reports from O Meara and Nakagawa, it held a hearing on defendant s competency. At the hearing, defendant immediately announced, I would like to fire my Public Defender, sir. The court responded that she should let her attorney do the talking. She asserted, He s not my attorney anymore. He s not allowed to contact the contact officer at the Fairfield Police and he won t let me contact my parents. The court told defendant that if she did not stop talking it would have her placed in a holding cell. The matter was submitted on the reports of O Meara and Nakagawa. The court also noted that it had received a letter from defendant consistent with her conversations with the doctors[.] Defendant stated in the letter that her father is the Prince of Wales, and that she was a disabled United States Marshal shot in the line of duty, and is still on duty. The court found defendant not competent to stand trial within the meaning of section 1368. 3
On November 24, 2009, the court held a hearing regarding defendant s placement in a mental health facility. Defendant submitted a Marsden motion to discharge her public defender. The court responded that it could not presently consider that issue and ordered her involuntary commitment to a state hospital pursuant to section 1370, subdivision (a)(2), for a maximum of three years. At the hearing, the court stated that it was going to direct that the hospital staff may administer appropriate medications to this defendant as medically necessary based on the reports of Nakagawa and O Meara. The court filed an order on November 30, 2009, committing defendant to the state hospital for a maximum commitment of three years. The order also stated that the state hospital can administer involuntary antipsychotic medication to the defendant when and as prescribed by the defendant s treating psychiatrist.... On January 5, 2010, defendant filed a written Notice for Motion and Motion for Substitution of Counsel (Marsden Motion). She claimed, among other things, that her appointed counsel had failed to confer with her or to call important witnesses. Defendant filed a timely notice of appeal from the court s order filed November 30, 2009. DISCUSSION I. Defendant s Marsden Motion On November 3, 2009, at defendant s competency hearing, defendant told the court that she wanted to fire her court-appointed counsel, and the court refused to hold a hearing on that request. Defendant contends that a court s refusal to hear a defendant s Marsden motion, even if competency proceedings are pending, requires the reviewing court to reverse the judgment. (People v. Harrison (2001) 92 Cal.App.4th 780, 789; People v. Solorzano (2005) 126 Cal.App.4th 1063, 1066.) Although a competency evaluation pursuant to section 4
1368 suspends the criminal proceeding, the defendant still retains the Sixth Amendment right to effective representation. (Solorzano, supra, at p. 1069.) Marsden and its progeny require that when a defendant complains about the adequacy of appointed counsel, the trial court permit the defendant to articulate his causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance. [Citations.] If the defendant states facts sufficient to raise a question about counsel s effectiveness, the court must question counsel as necessary to ascertain their veracity. (People v. Eastman 92007) 146 Cal.App.4th 688, 695-696.) A proper and formal legal motion is not required. All that is required is some clear indication by defendant that [the defendant] wants a substitute attorney. (People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8.) The People agree that defendant s statement to the court on November 3, 2009, that she wanted to fire her appointed counsel was a clear, personal, expression in court of her desire to discharge her appointed attorney. The People also concur that defendant does not need to establish prejudice because defendant never had an opportunity to set forth acts and events beyond the observations of the trial judge (People v. Solorzano, supra, 126 Cal.App.4th p. 1071) that may relate to the finding defendant was incompetent to stand trial. The People therefore concede that the trial court in the present case should have held a Marsden hearing to investigate the legitimacy and grounds of defendant s request for substitution of counsel. Accordingly, the judgment should be reversed and the matter remanded to the trial court for the purpose of holding a Marsden hearing to consider defendant s claim and to determine whether her attorney provided ineffective assistance resulting in the finding defendant was incompetent to stand trial. II. Medication Ordered Defendant argues that the court erred in authorizing involuntary psychiatric medication without hearing evidence of what medication would be used or its 5
possible effects. 2 Defendant contends that this issue would not become moot if, on remand, defendant were certified competent, because this issue could arise again if defendant s competency is again questioned. The People do not address this issue. We agree that there is a reasonable expectation that the medication issue could recur even if, on remand, the court determines she is competent. (See People v. Cheek (2001) 25 Cal.4th 894, 897-898 [concluding that the appeal of an expired commitment order was moot, but addressing the issue raised because it was likely to recur while evading appellate review and involve[d] a matter of public interest ].) Furthermore, the issue will arise again if the lower court, after hearing defendant s Marsden motion, denies her motion and reinstates its order finding her incompetent to stand trial and commits her to a state hospital. We review the trial court s order authorizing a state hospital to administer involuntary antipsychotic medication to a defendant under the substantial evidence standard of review. (People v. McDuffie (2006) 144 Cal.App.4th 880, 887.) Under this standard, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence... that is, evidence that is reasonable, credible and of solid value.... (People v. Snow (2003) 30 Cal.4th 43, 66.) [I]t is not within our province to reweigh the evidence or redetermine issues of credibility. (People v. Martinez (2003) 113 Cal.App.4th 400, 412.) We will not reverse unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the court s decision]. (People v. Bolin (1998) 18 Cal.4th 297, 331.) 2 The People extensively discuss a defendant s right to appeal from an order regarding the involuntary administration of antipsychotic medication. After a long discussion, the People agree that defendant s appeal is proper because it is from an order that implicates important expectations of privacy (see Sell v. United States (2003) 539 U.S. 166, 176-177), and could never be reviewed if not immediately appealed. We agree that defendant can appeal from the trial court s order regarding administering involuntary antipsychotic medication. 6
When a criminal defendant is found incompetent to stand trial and committed to a state hospital ( 1370, subd. (a)(1)(b)(i)), the treatment administered by the facility is limited by the defendant s liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment. (Washington v. Harper (1990) 494 U.S. 210, 221-222; People v. McDuffie, supra, 144 Cal.App.4th at p. 886.) The same interest is protected under California s right to privacy, which clearly extends to the right to refuse antipsychotic drugs. (McDuffie, at pp. 886-887, quoting In re Qawi (2004) 32 Cal.4th 1, 14.) These rights are not absolute, and an order authorizing the medication of a defendant against the defendant s wishes will satisfy constitutional standards under certain circumstances. The government can involuntarily medicate a mentally ill criminal defendant in order to render him [or her] competent to stand trial only if four factors are 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.... (People v. O Dell (2005) 126 Cal.App.4th 562, 569, quoting Sell v. United States, supra, 539 U.S. at pp. 180-183.) In California, a trial court s authority to order the administration of involuntary antipsychotic medication to a defendant is governed by section 1370. This statute requires a trial court, before issuing an order committing a defendant to a treatment facility to hear and determine whether [the defendant], with advice of... counsel, consents to the administration of antipsychotic medication. ( 1370, subd. (a)(2)(b).) Here, defendant did not consent to the medication. Absent any consent, the trial court may authorize involuntary medication when it finds any one of the following alternatives true: (I) The defendant lacks capacity to make decisions regarding antipsychotic medication, the defendant s mental disorder requires medical 7
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. ( 1370, subd. (a)(2)(b)(ii)(i).) (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. ( 1370, subd. (a)(2)(b)(ii)(ii).) (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. ( 1370, subd. (a)(2)(b)(ii)(iii).) 8
The record before us is a bit confusing as to the precise grounds for the order to administer antipsychotic medication and the trial court s order refers to a non-existent statute. 3 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 administration of involuntary antipsychotic medication. The trial court appeared to be ruling under section 1370, subdivision (a)(2)(b)(ii)(iii), and ordered defendant committed until she is restored to competency[.] Defendant was charged with a criminal offense, found incompetent, and committed to a mental health treatment facility to render her competent to stand trial. However, the People agree that the evidence in the record is insufficient to support an order of medication under this subdivision. Neither of the psychologists reports identified the medication recommended to treat defendant s condition; nor was there any discussion in these reports of these medications potential side effects. 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 her ability to assist trial counsel. (People v. McDuffie, supra, 144 Cal.App.4th at p. 887.) Additionally, the reports do not consider whether less intrusive treatment could achieve substantially the same results, as is also required. (People v. O Dell, supra, 126 Cal.App.4th at pp. 571-572.) Thus, as the People agree, the evidence fails to support a finding that defendant may be medicated pursuant to subdivision (a)(2)(b)(ii)(iii) of section 1370. Section 1370, subdivision (a)(2)(b)(ii)(i), requires evidence that serious harm to defendant s physical or mental health will result if her mental disorder is 3 The court s order states that the hospital can administer involuntary antipsychotic medication to the defendant when and as prescribed by the defendant s treating psychiatrist pursuant to Penal Code section 1370[, subdivision] (2)(B)(III)(iii). 9
not treated with antipsychotic medication. ( 1370, subd. (a)(2)(b)(ii)(i).) O Meara pointed out in her report that defendant had been experiencing significant chronic mental health problems since 2005 and had a diagnosis of chronic paranoid schizophrenia. O Meara concluded that defendant s mental illness impairs her ability to make sound decisions about her own treatment and therefore she is unable to accept or refuse antipsychotic medication as part of her treatment. Under these circumstances, it would be in her best interest to receive medication involuntarily as part of treatment to help her regain competency. Nakagawa observed in her report that defendant was suffering from significant mental health problems that remain untreated. Nakagawa recommended antipsychotic medication as being medically appropriate for the defendant and as being likely to restore her competence. The two psychologists reports establish that defendant suffered from a mental illness, that she was not currently taking medication, and that antipsychotic medication would help her become legally competent. However, the reports provided no information indicating that less intrusive therapies had failed to improve defendant s mental health or that her mental state would become worse if she did not take medication, and therefore the evidence did not support the court s order under section 1370, subdivision (a)(2)(b)(ii)(i). The reports made it clear that defendant had suffered with mental illness for many years and neither psychologist expressed an opinion or submitted evidence that defendant s condition would deteriorate further without medication. The People contend that the evidence supports the court s order regarding medication under section 1370, subdivision (a)(2)(b)(ii)(i), because both psychologists concurred that defendant could not make sound decisions about her own treatment, that she needed antipsychotic medication, and that defendant had a serious mental disorder. The People maintain that [i]t is probable that serious harm to the mental health of the patient will result if she is not treated with antipsychotic medication. The People, however, point to no evidence in the 10
record to support this latter statement. If this record were sufficient, then any defendant with a serious mental illness not currently taking medication could be forced to take medication against that person s will. Such a result would be contrary to the statute, which specifies that [t]he 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. ( 1370, subd. (a)(2)(b)(ii)(i).) The record also does not contain evidence to support the trial court s involuntary medication order under section 1370, subdivision (a)(2)(b)(ii)(ii). Nothing in either report by the psychologists provides a factual basis for determining that defendant, as a result of her mental disorder or mental defects, presents a danger of inflicting substantial physical harm on others while in custody. Indeed, the trial court never mentioned medication as being necessary because defendant was a danger to others. Furthermore, Nakagawa wrote in her report, At the present time, given that the defendant is in custody, she is not considered a danger to herself or others. The People argue that the evidence supports the medication order under section 1370, subdivision (a)(2)(b)(ii)(ii), because defendant had a history of involvement in both the mental health and criminal justice systems and had not been successful in managing her behavior. Further, her crime involved grabbing a two-year-old child and there was a similar incident involving her that had occurred three months earlier. The People dismiss the significance of Nakagawa s opinion that defendant did not pose a danger to herself or others, because this observation was based on defendant s remaining in custody. The People maintain that the statute permits the court to consider defendant s past behavior when assessing dangerousness. Contrary to the People s argument, the record does not support the court s order regarding medication based on section 1370, subdivision (a)(2)(b)(ii)(ii). There is no evidence that defendant s crime of attempting to grab the child constituted a serious threat of inflicting substantial physical harm or that there was 11
anything in her history that showed that she had been or was likely to inflict substantial physical harm on another person or herself. Moreover, defendant is in custody or will be in the state hospital and the evidence is that defendant does not pose any danger to herself or others while in an institution. Accordingly, we conclude that substantial evidence did not support the court s authorization of the administration of antipsychotic medication to defendant without her consent. DISPOSITION The order declaring defendant incompetent to stand trial and committing her to the state hospital, and authorizing the administration of involuntary antipsychotic medication to defendant is vacated. The trial court is directed to hold a Marsden hearing and consider defendant s request to discharge her appointed counsel. At this hearing, the court may appoint new counsel to represent defendant, deny the Marsden motion and reinstate its previous order finding defendant incompetent to stand trial and committing her to a state hospital, or proceed otherwise as authorized by law. The trial court is to conduct a new hearing on the administration of involuntary antipsychotic medication to defendant, if and only if appropriate to the then-current status of the case. The parties shall be permitted to introduce additional evidence at this hearing and the trial court is to make findings that 12
comply with section 1370, subdivision (a)(2)(b) and satisfy the constitutional constraints governing the forcible administration of medication to a criminal defendant. Lambden, J. We concur: Kline, P.J. Haerle, J. 13