Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Kern County Super. Ct. No. MI-4803. Robert J. Anspach, Judge.
Paul Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.
B. C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
DAWSON, J.
INTRODUCTION
David Y. (David) appeals from the 180-day extension of his civil commitment pursuant to Welfare and Institutions Code section 5300. David argues that the trial court erroneously failed to consider whether, and that there is insufficient evidence to show that, he had serious difficulty controlling his dangerous behavior. Further, he contends, he was not given a proper hearing prior to entry of an order to administer involuntary psychotropic medication. We find no reversible error.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
BACKGROUND
On March 5, 2007, David was transported to Kern Medical Center pursuant to section 5150 after he challenged a police officer to a fight when the officer responded to a report that David was causing a disturbance of the peace at a business. That same day, while in the emergency room at Kern Medical Center, David kicked an emergency room staff member, swung at a nurse who offered medication, and swung at the security officer who responded to the scene.
On March 7, 2007, while still in the hospital, David hit another staff person with his elbow and shoulder, held up his fists at a nurse who offered medication, and threatened to kill both of them and another nurse as well. David injured several people in the process of being restrained.
David was certified as being gravely disabled and dangerous to himself and others as a result of a mental disorder. In an administrative hearing on March 9, 2007, the certification was upheld on the ground that he was dangerous to others. It was determined that David suffers from schizophrenia, paranoid type.
Then, on March 21, 2007, a section 5300 petition was filed by Albert Ma, M.D., the designee of the professional in charge of the department of psychiatry at Kern Medical Center, asking the superior court to order that David undergo an additional 180-day period of treatment. This request was based on the opinion of the treating physician, Dr. Ma, that David “is dangerous as a result of a mental disorder,” and that if he was not confined for an additional period of treatment, there would be “a substantial likelihood that he will cause substantial physical harm to another person.” As to the need for medication, Dr. Ma stated that David had taken “much” of the antipsychotic medication prescribed for him during his hospitalization, but that David expressed the belief he was not in need of such medication and was only taking it in order to be released. David told Dr. Ma he would not take the medication after his discharge. Dr. Ma opined that the treatment of David with antipsychotic medication was “medically appropriate and, considering less intrusive alternatives, … is essential for the sake of the safety of others.”
A contested hearing on the section 5300 petition took place on March 28, 2007. The plaintiff submitted on the declaration of Dr. Ma.
David testified in his own behalf that he had not said he would refuse to take his medication and that, instead, he had “promised … with all [his] heart” to do so.
David explained the incident at the business that led to his detention. David had fired an employee because he had been giving away tools, and David’s father, who owned the business, was sick. The employee and David’s mother called the police because they thought David was in the wrong. When the police arrived, he thought they “were there to execute me or something. I don’t know. I don’t remember. They were arguing with me.”
When asked if he kicked a staff person while in the emergency room on the day he was detained, David said he didn’t remember but, if he did, he “was psychotic or something.” He acknowledged that he might have slapped the nurse who offered him medication, but he did not remember striking a security guard. He claimed that whatever he did, he did while defending himself.
As for the incident on March 7 in which he was alleged to have hit a staff person with his elbow and shoulder, David said, “I told him that I am, I said I am getting sick of this shit and they all jumped on me, threw me in the room, but that wasn’t an accident.” David insisted that his threats to kill the staff person did not mean he would kill anyone, but it was just what you say when you are mad at somebody.
David stated that he did not remember which medicines he was on but that they didn’t bother him and he “can take the medication and can be normal.”
The court expressly found that David presented “substantial physical harm to himself and others within 7 days of being taken from custody,” that he “attempted to inflict injury or substantial harm to other people during the period he has been involuntarily detained,” and that he was a person who “presents with mental disorder displaying non-accidental harm, of inflicting harm to others.” The trial court ordered that David be retained for postcertification treatment not to exceed 180 days. The court also found that treatment with antipsychotic medication was appropriate and constituted “a least intrusive alternative and [was] essentially for his well-being.” David was ordered treated with antipsychotic medication despite any objection he may have to the medication.
DISCUSSION
1. Does section 5300 require proof, and/or was there sufficient evidence, that David had difficulty controlling his behavior?
Section 5300 specifically requires “two types of findings of dangerousness.” (In re Qawi (2004) 32 Cal.4th 1, 20 (Qawi).) In addition to a finding of “‘demonstrated danger’ to others” as a result of mental disorder, section 5300 “requires a finding of recent dangerousness as evidenced by tangible acts or threats of violence.” (Qawi, supra, at pp. 20, 24.) Relying on case law and primarily In re Howard N. (2005) 35 Cal.4th 117, David contends (1) that a civil commitment pursuant to section 5300 is unconstitutional unless the statute is read to include an additional element—to wit, serious difficulty in controlling behavior; (2) that the trial court failed to consider or make a finding on that element; and (3) that the record contains no substantial evidence that he in fact does suffer from serious difficulty in controlling his behavior. Thus, according to David, the order civilly committing him for 180 days of treatment must be reversed. We disagree.
In order to address David’s concern, we have examined a number of cases that address a variety of civil commitment statutes. The Supreme Court of the United States “repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. [Citations.]” (Addington v. Texas (1979) 441 U.S. 418, 425.) In Kansas v. Hendricks (1997) 521 U.S. 346, the court held, in analyzing the commitment provisions of the Sexually Violent Predator Act (SVPA) of Kansas (Kan. Stat. Ann. § 59-29a01 et seq.) that
“A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment. We have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a ‘mental illness’ or ‘mental abnormality.’” (Kansas v. Hendricks, supra, at p. 358.)
“These added statutory requirements serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control.” (Ibid.)
In the subsequent case of Kansas v. Crane (2002) 534 U.S. 407, the court, again addressing the Kansas SVPA, clarified that a civil commitment statute must include a requirement of “proof of serious difficulty in controlling behavior.” (Kansas v. Crane, supra, at p. 413.)
After Crane, the California Supreme Court reviewed the California SVPA (§ 6600 et seq.), and held that civil commitment statutes must include both proof of dangerousness due to a mental disorder and proof of serious difficulty in controlling dangerous behavior. (People v. Williams (2003) 31 Cal.4th 757, 759.)
Two years later, our Supreme Court considered whether the detention scheme under section 1800 et seq., which authorizes extended detention of dangerous persons who are under the control of the former California Youth Authority, violated due process because it did not expressly require a finding that the person’s mental impairment caused serious difficulty in controlling behavior. (In re Howard N., supra, 35 Cal.4th 117.) The court concluded that nothing in the language of Hendricks, Crane, or Williams indicated that the lack of control requirement was limited to the sexually violent predator context, and it determined that the extended detention scheme under section 1800 “should be interpreted to contain a requirement of serious difficulty in controlling dangerous behavior.” (In re Howard N., supra, at p. 132.) Section 1800 has since been amended to make explicit the need to prove difficulty in controlling dangerous behavior. (Stats. 2005, ch. 110, § 1.)
In People v. Galindo (2006) 142 Cal.App.4th 531, the appellate court held that, because the extended commitment provisions of Penal Code section 1026.5, which apply to persons who have been found not guilty of a crime by reason of insanity, were so similar to the extended commitment of juveniles pursuant to Welfare and Institutions Code section 1800, proof of serious difficulty in controlling dangerous behavior also is required in Penal Code section 1026.5 proceedings. (People v. Galindo, supra, at pp. 536-537.)
Case law has therefore recognized the general proposition that due process requires that indefinite civil commitments be supported by proof of the person’s inability to control dangerous behavior. This requirement has now been codified in three of California’s civil commitment statutes: sections 6000 et seq. (judicial commitments), 1800 et seq. (extended detention by Department of Corrections and Rehabilitation, Juvenile Justice), and Penal Code section 1026.5 et seq. (extended commitment of criminally insane).
Section 5000 et seq., or the Lanterman-Petris-Short Act (LPS Act), is a civil commitment scheme that provides for short-term detention of mentally disordered individuals. As described by our Supreme Court in Qawi, supra, 32 Cal.4th 1, the LPS Act provides for “prompt evaluation and treatment of mentally disordered persons, developmentally disabled persons and persons impaired by chronic alcoholism, while protecting public safety and safeguarding individual rights through judicial review.” (Qawi, at p. 16; see § 5000 et seq.)
Relevant here are the provisions of the LPS Act that govern the involuntary treatment of persons with mental disorders. “Under the LPS Act, a person who is dangerous or gravely disabled due to a mental disorder may be detained for involuntary treatment. However, in accordance with the legislative purpose of preventing inappropriate, indefinite commitments of mentally disordered persons, such detentions are implemented incrementally.” (Ford v. Norton (2001) 89 Cal.App.4th 974, 979.) Accordingly, an individual with a mental disorder may be involuntarily evaluated in a county-designated facility for as much as 72 hours if that person is either “a danger to others, or to himself or herself” or “gravely disabled.” (§ 5150.) This initial 72-hour evaluation may lead to civil commitment lasting 14 days, 30 days and 180 days, and, in certain circumstances, to the establishment of a conservatorship on an annual basis. (§§ 5250 et seq., 5260 et seq., 5300 et seq., 5350 et seq.)
As explained in Qawi, section 5300 is “quite specific” in requiring “two types of findings of dangerousness”:
“First, there must be a generalized finding of ‘demonstrated danger’ to others. ‘Demonstrated danger may be based on assessment of [the person’s] present mental condition, which is based upon a consideration of past behavior of the person within six years prior to the time the person attempted, inflicted, or threatened physical harm upon another, and other relevant evidence.’ (Welf. and Inst. Code, § 5300.5.) [¶] In addition to demonstrated danger, one of the following findings establishing recent acts or threats of violence must be made in order to effect a section 5300 commitment: ‘(a) The person has attempted, inflicted, or made a serious threat of substantial physical harm upon the person of another after having been taken into custody, and while in custody, for evaluation and treatment … (b) the person had attempted, or inflicted physical harm upon the person of another, that act having resulted in his or her being taken into custody … (c) The person had made a serious threat of substantial physical harm upon the person of another within seven days of being taken into custody, that threat having at least in part resulted in his or her being taken into custody.’ (Welf. & Inst. Code, § 5300; see also id., § 5304, subd. (a).)” (Qawi, supra, 32 Cal.4th at p. 20.)
Respondent contends that, because section 5300 requires proof both of a generalized finding of demonstrated danger to others as a result of a mental illness and of a specific and recent act or threat of violence, a finding of volitional impairment is implicit in findings made pursuant to the section. Further, according to respondent, no error has occurred because volition “is not susceptible to determination by a trier of fact,” and neither the United States nor the California Supreme Court has required that the finder of fact determine whether “the dangerous behavior asserted was volitional or not.” We need not and thus will not analyze either of these positions, however, because the record reveals that no rational trier of fact could have failed to find that David’s mental disorder made it seriously difficult for him to control his behavior. Thus, any error was not prejudicial. (People v. Bowers (2006) 145 Cal.App.4th 870, 879.)
Dr. Ma opined that David suffers from schizophrenia, paranoid type. David himself testified to his volitional impairment when he said that he had challenged the officer who came to detain him because he thought the officer was “there to execute [him] or something.” In addition, David testified that he did not remember kicking an emergency room staffer but that, if he did kick the person, it was because “I was psychotic or something.” Thus, David himself acknowledged that his assaultive behavior did not result from his choice but, instead, from his delusions.
The term “psychotic” is defined as “Of, relating to, or affected by psychosis.” The term “psychosis” is defined as “A severe mental disorder … characterized by derangement of personality and loss of contact with reality.” (American Heritage Dict. (3d college ed. 2000) p. 1105.)
Based on the evidence presented, we find that no rational trier of fact “‘“could have failed to find [David] harbored a mental disorder that made it seriously difficult for him to control his violent … impulses.”’ [Citation.]” (People v. Bowers, supra, 145 Cal.App.4th at p. 879.) The evidence presented not only is sufficient to support the judgment; it established beyond a reasonable doubt that David (1) had a mental disorder, and (2) that condition caused him to have serious difficulty controlling his behavior such that (3) he presented a substantial danger of physical harm to others.
2. Is there sufficient evidence to support the order that David take antipsychotic medication during the postcertification period?
David also contends that the evidence is insufficient “to support the legal requirements for authorizing the administration of involuntary psychiatric medication.” David specifically argues that he was not given a proper advisement regarding the medication before he could give or withhold informed consent. David relies on Riese v. St. Mary’s Hospital & Medical Center (1987) 209 Cal.App.3d 1303, 1322-1323 (Riese) for the proposition that the prosecution must prove that he is unable to (1) weigh the benefits against the known side effects and (2) understand and knowingly and intelligently act upon information required to be given regarding treatment, and that the trial court failed to address those requirements. In Riese, the appellate court held that psychiatric patients involuntarily committed to mental health facilities under sections 5150 and 5250 of the LPS Act “have statutory rights to exercise informed consent to the use of antipsychotic drugs in nonemergency situations absent a judicial determination of their incapacity to make treatment decisions .…” (Riese, supra, 209 Cal.App.3d at p. 1308.) Section 5150 applies to patients who have been subject to short-term involuntary detention and treatment for an initial 72 hours. Section 5250 applies to patients who have been certified as gravely disabled or as a danger to self or others for 14 days’ additional treatment.
The Riese holding was primarily based on statutes providing that, except as specifically stated, patients committed under the LPS Act have the same rights as other persons:
“Section 5005 provides that ‘Unless specifically stated, a person [detained under] the provisions of this part shall not forfeit any legal right or suffer legal disability by reason of the provisions of this part.’ (Italics added.) Similarly, section 5325.1 commences with the definitive statement that ‘Persons with mental illness have the same legal rights and responsibilities guaranteed all other persons by the Federal Constitution and laws and the Constitution and laws of the State of California unless specifically limited by federal or state law or regulations.’ (Italics added.) Finally, section 5327 specifies that ‘Every person involuntarily detained under provisions of this part … shall be entitled to all rights set forth in this part and shall retain all rights not specifically denied him under this part.’ (Italics added.)” (Riese, supra, 209 Cal.App.3d at p. 1317.)
The Riese court concluded that, since the LPS Act does not explicitly deny competent patients the right to refuse treatment with antipsychotic drugs, competent patients committed under sections 5150 and 5250 of the LPS Act retain that right. (Riese, supra, at p. 1323.)
The Riese court determined that the same provisions of the LPS Act required when a patient’s capacity to consent to convulsive therapy is called into question ought also to apply when the question of capacity to consent to antipsychotic medication is at issue. As such, the Riese court reasoned that the LPS Act should provide that there must be an evidentiary hearing directed to the question whether the patient is able to understand and knowingly and intelligently act upon information required to be given regarding the giving of antipsychotic medication. (Riese, supra, 209 Cal.App.3d at p. 1322.)
Subsequently, “Riese’s recognition of the right to refuse medication if competent has been codified in the LPS Act, Article 7, in sections 5325.2 and 5332. Section 5325.2 provides that those ‘subject to detention pursuant to Section 5150, 5250, 5260, or 5270.15 shall have the right to refuse treatment with antipsychotic medication subject to provisions set forth in this chapter.’ Section 5332, subdivision (b) provides that if a person exercises the right to refuse antipsychotic medication, that refusal can only be overridden ‘upon a determination of that person’s incapacity to refuse the treatment, in a hearing held for that purpose.’” (Qawi, supra, 32 Cal.4th at p. 18.) Section 5008 of the LPS Act defines “antipsychotic medication” as “any medication customarily prescribed for the treatment of symptoms of psychoses and other severe mental and emotional disorders.” (§ 5008, subd. (l).)
But, while a hearing to determine capacity to refuse medication is required for those subject to detention pursuant to section 5150, 5250, 5260, or 5270.15, David was subject to detention pursuant to section 5300. And in Qawi, a case only mentioned in passing by both parties, our Supreme Court determined that, while the LPS Act provides competent patients the right to refuse antipsychotic medication in nonemergencies, it does not give this same right to patients committed under section 5300. (Qawi, supra, 32 Cal.4th at p. 19.) The court in Qawi determined that, although the reason for not permitting section 5300 patients the right to refuse medication was not made plain in the statutes or the legislative history, such an inference was unavoidable because: (1) a section 5300 patient poses a “‘demonstrated danger of inflicting harm upon others’” (Qawi, at p. 19) and the LPS Act acknowledges a limit on the right to refuse medication derived from the need for institutional security by permitting involuntary medication in emergency situations (§ 5332, subd. (e)), and (2) a section 5300 patient has neither the right to a capacity hearing possessed by LPS short-term patients (§§ 5325.2, 5332, subd. (b)) nor the right to a court determination of competency to refuse medication treatment possessed by long-term LPS conservatees (§ 5358). (Qawi, supra, at p. 19.)
These sections apply to committees held for 72 hours (§ 5150), 14 days (§ 5250), an additional 14 days (§ 5260), and 30 days (§ 5270.15).
Thus, contrary to David’s assertion, a person committed under section 5300 has neither the right to a capacity hearing nor the right to refuse medication. And, as noted by our Supreme Court in Qawi, 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,” as David was here. (Qawi, supra, 32 Cal.4th at p. 20; see Sell v. United States (2003) 539 U.S. 166, 183-185.) Following Qawi, under the record of this case, we decline to imply a need for additional findings to satisfy constitutional due process.
DISPOSITION
The judgment is affirmed.
WE CONCUR: GOMES, Acting P.J., KANE, J.