Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1080328.
Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant George Gonzales challenges an order authorizing involuntary administration of antipsychotic medication to him. We conclude that the state proved in a legally adequate manner that defendant is a danger to himself and others and that the trial court made no errors in deciding that he should be involuntarily medicated and how this should be done. We will affirm the order.
PROCEDURAL BACKGROUND
Defendant was admitted to the Atascadero State Hospital on September 23, 2010.
Defendant went there because he was charged with failing to register in May of 2010 as a transient who is a convicted sex offender, thereby violating Penal Code section 290.011, subdivision (a), a felony offense. Appointed counsel expressed a doubt about his competency to stand trial and criminal proceedings were suspended in July of 2010. In August of 2010, the trial court found defendant not competent to stand trial and ordered him committed to the State Department of Mental Health for a maximum term of three years, and the agency sent him to the Atascadero facility.
In March of 2011, the People filed a petition for involuntary administration of antipsychotic medication to render defendant safe to others. They acted under the authority of Penal Code section 1370, subdivision (a)(2)(B)(ii)(II). Their petition asserted that defendant had been diagnosed with schizophrenia, had refused treatment, and was dangerously aggressive toward staff.
Defendant opposed the petition, arguing that there was insufficient evidence to support an order for involuntary medication. He asserted that his conduct did not rise to the required level of “demonstrated danger, ” that there were less intrusive alternatives, that the request lacked specificity regarding medications, dosages, and expected side effects, that there was insufficient information regarding whether the medication was in his best medical interests, and that the applicable standard of proof is proof beyond a reasonable doubt.
On May 31, 2011, after a contested evidentiary hearing, the trial court granted the petition. Defendant filed a petition for stay and writ of supersedeas. This court granted the stay on August 30, 2011 and, on November 3, 2011, we issued the writ, staying the order until final determination of this appeal.
FACTS
At the evidentiary hearing, Victor Javier Perez Preciado, M.D., defendant’s treating psychiatrist but not a witness to two reported incidents that contributed to the filing of the petition, testified regarding those incidents and defendant’s mental infirmities generally.
Dr. Perez agreed that defendant is “extremely psychotic.” He suffers from undifferentiated schizophrenia. He “has been in the hospital now for about seven—close to eight months and he has made no progress towards demonstrating competency. We’ve been providing groups for him, structured environment, safe environment, medical care of his physical problems and he hasn’t made any progress.” “He is not in contact with reality or he is behaving... as if processes that aren’t real are actually occurring.”
Dr. Perez agreed with the prosecutor that defendant posed a continuing risk of engaging in violent acts. Defendant “continues to be profane with staff at times, continues to not make overt threats but insinuate hostility or act hostilely towards them.” “His conduct has generally been fairly consistent.... [U]sually staff is able to use language or other techniques to help appease or placate Mr. Gonzales, and he will on occasion take as-needed medication. To some extent I believe Mr. Gonzales realizes when his behavior is becoming uncontrollable. I believe he’s taken a total of about 18 doses of medication since he came to the hospital.... [S]taff has now formed a relationship with Mr. Gonzales. So when he starts to become agitated, angry, staff is able to give him some space or redirect him....” “[B]ut staff take vacations. People who aren’t familiar with him rotate through the unit. It’s always possible that Mr. Gonzales will have to be transferred to a different unit, and were that to occur, it’s very possible that Mr. Gonzales would become hostile or violent with a new set of people.”
The Atascadero State Hospital has physical restraints available to it, but using them is less desirable than using antipsychotic medications. “Physical problems include the creation of sores, and if somebody’s restrained they could develop thromboses from immobility which can cause strokes. It’s also inhumane to a good degree to have somebody tied up in order to keep them from hurting somebody else.”
Emblematic of defendant’s dangerous propensities were the two episodes alluded to above. They occurred in the autumn of 2010. According to information Dr. Perez’s colleagues gave him, defendant threatened staff in October and November of that year. In both incidents, defendant yelled profanities, was agitated, and was verbally aggressive. The November incident was more serious. Defendant appeared to be on the verge of attacking a staff psychiatrist. One report stated, as relevant here: “When the unit psychiatrist asked him to take medication to help him calm down, he refused, stating, ‘Get back, step back, I’ll kick your ass.’ Mr. Gonzales then raised his hands in a threatening manner as he advanced toward the psychiatrist.... Mr. Gonzales had to be physically restrained in wrist restraints and [a] belt in order to prevent him from harming others.”
Several written mental health reports generated since defendant’s arrest found him to be uncooperative, irritable, beset by hallucinations, self-isolating, and as a general matter, in the words of a licensed clinical psychologist’s evaluation in 2010, “confused and apparently psychotic” with “[r]easoning processes [that] are grossly abnormal.” One report found that defendant presented a low level of danger to himself at Atascadero State Hospital and that he posed a “moderate” danger to others there. The risk to others was based on defendant’s “untreated psychotic illness[, ] which includes paranoia towards others.” It is unclear from the record whether Dr. Perez read and relied on all of the reports before testifying, or whether he was relying only on personal observations and matters described in the one report he wrote personally. However, before Atascadero State Hospital seeks an involuntary medication order, Dr. Perez explained, “the director of forensic services reviews my request for an order for forced medication and reviews the records and then agrees to it, as does the medical director.”
Defendant would benefit from the antipsychotic medication risperidone (known by its trade name Risperdal) “because I believe he has a mental illness that is not controlled, and I think he would be more comfortable, be less distressed if he took the medications.... [A]t times he also becomes so aggressive or disruptive that he needs to be urged to take something to help him calm down in order to ensure that his behavior doesn’t escalate to the point of physical violation [sic].” Dr. Perez recommended that risperidone be administered as follows:
“Q. [By the prosecutor:] [W]ould that extreme psychotic state in your opinion be alleviated by administering a standing antipsychotic medication?
“A. Yes.
“Q. Antipsychotics on a regular bas[is] administered daily?
“A. Yes.
“Q. You are recommending Risperdal; is that correct?
“A. Yes.
“Q. Starting with two milligrams twice a day?
“A. Yes.
“Q. And then escalating to up to ten milligrams total per day depending on the symptoms?
“A. Correct.”
Defense counsel repeatedly objected to Dr. Perez’s testimony as containing hearsay, but the trial court overruled the objection each time on the ground that it was not considering for their truth facts reported to but not observed by Dr. Perez. Rather, it was considering such evidence only to evaluate “this witness’s expertise in forming his opinion.”
At the conclusion of the hearing, the trial court stated that it was granting the petition and that it was “satisfied that the criteria as enumerated in [Penal Code section 1370, subdivision (a)(2)(B)(ii)(II)] have been met by... clear and convincing evidence.”
In the written order, the trial court found the allegations of the petition true and that defendant was a danger to others “in that he has made a serious threat of inflicting substantial physical harm on another; he presents, as a result of his mental disorder, a demonstrated danger of inflicting substantial physical harm on others.” The court authorized the Department of Mental Health to “administer antipsychotic medication involuntarily to [defendant] when, and as prescribed by his treating psychiatrist, for the purpose of rendering [others] safe.”
DISCUSSION
I. Sufficiency of the Evidence for the Involuntary Medication Order
Defendant claims that there was insufficient evidence before the trial court to permit the state to involuntarily medicate him, and thus the trial court’s order, if implemented, would, in essence, interfere with his liberty interests under the due process guaranty found in the Fifth and Fourteenth Amendments to the United States Constitution and his right to privacy under article I, section 1 of the California Constitution, and would fail to comply with the requirements of Penal Code section 1370.
We review the trial court’s determination for substantial evidence in support of it. (See People v. Christiana (2010) 190 Cal.App.4th 1040, 1050 (Christiana) [standard of review of involuntary medication order to try to restore defendant to competence to stand trial]; People v. Fisher (2009) 172 Cal.App.4th 1006, 1016 [standard of review of involuntary medication order for person confined as mentally disordered offender].)
In institutional contexts similar to that of this case, e.g., convicted prisoners with serious mental problems or people charged with crimes whom the state hopes to restore to competence and bring to trial, the United States Supreme Court has recognized that a confinee “has a constitutionally protected liberty ‘interest in avoiding involuntary administration of antipsychotic drugs’—an interest that only an ‘essential’ or ‘overriding’ state interest might overcome.” (Sell v. United States (2003) 539 U.S. 166, 178-179; see Riggins v. Nevada (1992) 504 U.S. 127, 134-135 (Riggins); Washington v. Harper (1990) 494 U.S. 210, 221-222, 227 (Harper).) Such an essential interest exists, however, when a confinee poses a danger to him- or herself or to other individuals. “[G]iven the requirements of the prison environment, the Due Process Clause permits the State to treat a prison 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 inmate’s medical interest.” (Harper, supra, at p. 227.) The state “certainly would have satisfied due process if the prosecution had demonstrated, and the District Court had found, that treatment with antipsychotic medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of [the confinee’s] own safety or the safety of others.” (Riggins, supra, at p. 135.)
These due process-founded guaranties, considerations, and limitations apply equally to individuals like defendant—people who, though not convicted of a crime, are confined in a secure institution containing seriously mentally disordered residents and whose administration must provide for the safety of confinees, staff, and the public. This conclusion stems from the general principle that “[t]he extent of a prisoner’s right under the [due process] Clause to avoid the unwanted administration of antipsychotic drugs must be defined in the context of the inmate’s confinement.” (Harper, supra, 494 U.S. at p. 222.)
In addition, California’s constitutional right to privacy guaranty “extends to the right to refuse antipsychotic drugs.” (In re Qawi (2004) 32 Cal.4th 1, 14.) That right, however, is balanced against any “countervailing state interest... in institutional security.” (Id. at p. 16.) “[E]ven a competent prison inmate, for example, may be forcibly medicated, consistent with the federal due process clause, if it is determined that he is a danger to himself or others[] and that the treatment is in his medical interest, as determined by an independent medical board.” (Ibid.)
Defendant does not challenge the constitutional validity of Penal Code section 1370, under which the trial court ordered him to be medicated against his will. Rather, he maintains that the court’s order is not supported by substantial evidence.
To understand the foundation of defendant’s claim, it is necessary to explain the basis for the trial court’s order. Penal Code section 1370 provides in pertinent part:
“(a)(1)(A)....
“(B) If the defendant is found mentally incompetent, the trial or judgment shall be suspended until the person becomes mentally competent.
“(i) In the meantime, the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, or to any other available public or private treatment facility approved by the community program director that will promote the defendant’s speedy restoration to mental competence, or placed on outpatient status....
“[¶]... [¶]
“(B) The court shall hear and determine whether the defendant, with advice of his or her counsel, consents to the administration of antipsychotic medication, and shall proceed as follows:
“[¶]... [¶]
“(ii) If the defendant does not consent to the administration of medication, the court shall hear and determine whether any of the following is true:
“[¶]... [¶]
“(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.
“[¶]... [¶]
“(C) If the defendant consented to antipsychotic medication as described in clause (i) of subparagraph (B), but subsequently withdraws his or her consent, or, if involuntary antipsychotic medication was not ordered pursuant to clause (ii) of subparagraph (B), and the treating psychiatrist determines that antipsychotic medication has become medically necessary and appropriate, the treating psychiatrist shall make efforts to obtain informed consent from the defendant for antipsychotic medication. If informed consent is not obtained from the defendant, and the treating psychiatrist is of the opinion that the defendant lacks capacity to make decisions regarding antipsychotic medication as specified in subclause (I) of clause (ii) of subparagraph (B), or that the defendant is a danger to others as specified in subclause (II) of clause (ii) of subparagraph (B), the committing court shall be notified of this, including an assessment of the current mental status of the defendant and the opinion of the treating psychiatrist that involuntary antipsychotic medication has become medically necessary and appropriate. The court shall provide notice to the prosecuting attorney and to the attorney representing the defendant and shall set a hearing to determine whether involuntary antipsychotic medication should be ordered in the manner described in subparagraph (B).
“[¶]... [¶]
“(c)(1) At the end of three years from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information, indictment, or misdemeanor complaint, whichever is shorter, a defendant who has not recovered mental competence shall be returned to the committing court. The court shall notify the community program director or a designee of the return and of any resulting court orders.
“(2) Whenever any defendant is returned to the court pursuant to paragraph (1) or (2) of subdivision (b) or paragraph (1) of this subdivision and it appears to the court that the defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall order the conservatorship investigator of the county of commitment of the defendant to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code....
“[¶]... [¶]
“(d) The criminal action remains subject to dismissal pursuant to [Penal Code] Section 1385. If the criminal action is dismissed, the court shall transmit a copy of the order of dismissal to the community program director or a designee.
“(e) If the criminal charge against the defendant is dismissed, the defendant shall be released from any commitment ordered under this section, but without prejudice to the initiation of any proceedings that may be appropriate under the Lanterman-Petris-Short Act, Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code.”
In the different context of medicating a confinee involuntarily to try to restore the confinee’s competence to stand trial, Penal Code section 1370 is designed to comply with the United States Supreme Court’s constitutional standards for administering antipsychotic medications to a confinee in a public institution. (Christiana, supra, 190 Cal.App.4th at p. 1049.)
Christiana, supra, 190 Cal.App.4th 1040, summarized these requirements as follows: “The United States Supreme Court has held that an individual has a significant constitutionally protected liberty interest in avoiding the unwanted administration of antipsychotic drugs. [Citation.] [Citation.] To override that interest for the purpose of restoring a criminal defendant to competency to stand trial, due process requires the trial court to determine four factors: First, a court must find that important governmental interests are at stake. [Citation.] Second, the court must conclude that involuntary medication will significantly further those concomitant state interests. It must find that administration of the drugs is substantially likely to render the defendant competent to stand trial. At the same time, it must find that administration of the drugs is substantially unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting a trial defense, ... [Citation.] [Citation.] Third, the court must conclude that involuntary medication is necessary to further those interests. The court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results.... [Citation.] Fourth, ... the court must conclude that administration of the drugs is medically appropriate, i.e., in the patient’s best medical interest in light of his medical condition.” (Id. at p. 1049, internal quotation marks, italics and fn. omitted.)
As noted, this high level of procedural and substantive protection exists in the case of a confinee whom the government is trying to make competent for trial. (Christiana, supra, 190 Cal.App.4th at p. 1049.) As far as the United States Constitution is concerned, the foregoing “factors control only when the sole purpose of the involuntary medication is to render the defendant competent to stand trial; they do not control if involuntary medication is justified on other bases, such as when the defendant is dangerous to himself or others or when the refusal to take medication puts the defendant’s own health at grave risk.” (Id. at p. 1049, fn. 4.) As the United States Supreme Court explained, “We emphasize that the court applying these standards”—the standards summarized in Christiana—“is seeking to determine whether involuntary administration of drugs is necessary significantly to further a particular governmental interest, namely, the interest in rendering the defendant competent to stand trial. A court need not consider whether to allow forced medication for that kind of purpose, if forced medication is warranted for a different purpose, such as... the individual’s dangerousness, or... where refusal to take drugs puts his health gravely at risk. [Citation.] There are often strong reasons for a court to determine whether forced administration of drugs can be justified on these alternative grounds before turning to the trial competence question.” (Sell v. United States, supra, 539 U.S. at pp. 181-182, italics omitted.)
As stated, defendant does not contend that Penal Code section 1370 fails to ensure procedural and substantive protections along the lines required by the federal Constitution and our state Constitution’s separate privacy guaranty, but that the evidence is lacking to enforce the trial court’s order. We will therefore review the record to see if substantial evidence exists that the trial court complied with all of the statutory requirements. If so, then our inquiry is at an end, although we are cognizant of the significant liberty interest defendant enjoys to avoid being involuntarily treated with antipsychotic drugs even for the limited purpose of ensuring his and others’ safety.
We find that substantial evidence supports the trial court’s determination. Defendant might not disagree were it not for his position that the trial court rested its decision in material part on inadmissible hearsay evidence (see Evid. Code, § 1200 et seq.) about the two incidents in the autumn of 2010.
California’s rules of evidence provide:
“(a) ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.
“(b) Except as provided by law, hearsay evidence is inadmissible.
“(c) This section shall be known and may be cited as the hearsay rule.” (Evid. Code, § 1200.)
Defendant argues that, despite the trial court’s rulings that there was no hearsay problem because it would consider evidence of the two incidents of aggression in the autumn of 2010 only to evaluate “this witness’s expertise in forming his opinion, ” it is inescapable that Dr. Perez testified to matters not within his personal knowledge and based on the words of others for the truth of their content.
Defendant’s multiple hearsay objections preserved this issue for review. Accordingly, we need not consider his claim that if we had found that they did not, counsel’s failure to keep objecting throughout the hearing would have constituted ineffective assistance of counsel.
That, however, is inaccurate. Dr. Perez was testifying as a qualified psychiatric expert, and his testimony was authorized by Evidence Code section 801, which provides: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” (Italics added.)
The opinion of just one mental health professional may comprise substantial evidence that requires a reviewing court to affirm a judgment that involves a finding of psychiatric disability. (In re Carol K. (2010) 188 Cal.App.4th 123, 134 [so stating in the context of proceedings to determine grave disability because of a mental disorder under the Lanterman-Petris-Short Act].) In People v. Chavez (2008) 160 Cal.App.4th 882, “Dr. Ploktin opined that defendant was insane, [and] Dr. Knapke opined that defendant was sane.” (Id. at p. 891.) “The jury’s determination that defendant was sane... is amply supported by the testimony of Dr. Knapke. Inasmuch as the substantial evidence test applies to appellate review of a sanity determination [citation] and defendant has failed to demonstrate that Dr. Plotkin’s opinion was of such weight that the jury could not reasonably reject it [citation], there is no basis on which we may disturb the jury’s sanity finding.” (Ibid.)
Dr. Perez relied in part on various reports, one written by him and the others by other mental health professionals, to reach his opinions about defendant’s mental state and need for involuntary psychotropic treatment. This the law allowed him to do. “[A] qualified mental health professional may render an opinion on... force or violence... and may rely on the probation report from the underlying case in formulating that opinion. [Citations.] Although a probation report is itself hearsay and is not independently admissible, an expert witness may rely on reliable hearsay materials in formulating an opinion. [Citations.] A probation report is a reliable document ‘of a type that reasonably may be relied upon by an expert...’ in assessing a prisoner’s [mentally disordered offender] status. [Citations.] The doctors in this case properly relied on the probation report as the basis for their opinions....” (People v. Martin (2005) 127 Cal.App.4th 970, 976-977.)
As for defendant’s objection that the trial court inevitably considered Dr. Perez’s description of the reports for the truth of their contents, his contention is fully answered by, and must be rejected in light of, the discussion of a like claim in People v. Martin, supra, 127 Cal.App.4th at page 977: “Appellant acknowledges that the experts were allowed to base their opinions on hearsay matter such as the probation report, but he argues that they should not have been allowed to testify to the details of the report. He cites People v. Coleman (1985) 38 Cal.3d 69, in which the court found it was prejudicial error to admit several letters written by the dead victim. Although defense experts in Coleman had relied upon those letters to formulate an opinion about the defendant’s mental state and his relationship with the victim, this did not warrant a recitation of the details of those letters during cross-examination. The court explained, ‘[W]hile an expert may give reasons on direct examination for his opinions, including the matters he considered in forming them, he may not under the guise of reasons bring before the jury incompetent hearsay evidence. [Citation.] Ordinarily, the use of a limiting instruction that matters on which an expert based his opinion are admitted only to show the basis for the opinion and not for the truth of the matter cures any hearsay problem involved, but in aggravated situations, where hearsay evidence is recited in detail, a limiting instruction may not remedy the problem.’ [Citation.] [¶] The court in Coleman was attempting to balance the desirability of allowing an expert to explain the basis for an opinion and the need to prevent the jury from considering inadmissible matter for an improper purpose. In this case, however, appellant was tried before the court. A judge is presumed to know and follow the law. [Citation.] We must assume that the court in this case considered the testimony about the probation report’s contents solely for the proper purpose of assessing the experts’ credibility, and not as independent proof of the facts contained therein.”
That is all the more true here, because the trial court explicitly stated that it was considering the reports only for the similar basis of assessing Dr. Perez’s expertise in understanding defendant’s mental state.
In addition, the autumn 2010 incidents were, as we characterized them in our recitation of the record, emblematic of the basis for the Atascadero staff’s worries, but they were not the sole basis for them. Dr. Perez testified that defendant is “extremely psychotic, ” “continues to be profane with staff at times, continues to not make overt threats but insinuate hostility or act hostilely towards them.” “His conduct has generally been fairly consistent, ” Dr. Perez explained—testimony that would suggest a continuing course of menacing behavior and not two isolated outbursts. One of the reports in the record of this case found that defendant presented a “moderate” danger to other inmates and staff because of his “untreated psychotic illness[, ] which includes paranoia towards others.”
For the foregoing reasons, we conclude that substantial evidence supports the trial court’s determination that defendant may be treated with drugs he wishes to avoid.
II. Finding of Medical Propriety for Involuntary Medication of Defendant
Defendant argues that the trial court failed to find sufficient medical justification for its order that he be medicated against his will.
Due process principles require a showing “that treatment with antipsychotic medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of [the confinee’s] own safety or the safety of others.” (Riggins, supra, 504 U.S. at p. 135.) In addition, and contrary to the People’s view, due process principles appear to require a showing that “the treatment is in the inmate’s medical interest.” (Harper, supra, 494 U.S. at p. 227.)
Even if the trial court did not recite by rote during the hearing or in its order that the evidence fully satisfied each criterion, the record shows that it did so implicitly. Dr. Perez testified that defendant was a danger to others, necessarily meaning that he was a danger to himself should they retaliate or defend themselves. He testified that putting defendant in physical restraints would be cruel. And he testified that risperidone, at the right dosage and properly monitored, would make defendant safe to others (meaning safer to him as well) and its relatively benign side effects should be manageable to the extent that any occurred.
At one point the prosecutor asked directly questions to which the court needed answers:
“Q. Do you think administering Risperdal is medically appropriate in this case?
“A. Yes.
“ Q. Do you think it’s in Mr. Gonzales’s best interest in light of his current medical condition?
“A. Yes.”
Regarding the adequacy of monitoring, the trial court itself questioned Dr. Perez:
“THE COURT: I have a question. How often... is there a review of the effects of the medication that’s been ordered involuntarily given?
“THE WITNESS: The review would occur more frequently right after the medication has been started or after changes in dosing, and then once somebody is on a stable dose the review would occur once a month at a minimum.
“THE COURT: And I assume that that one month would be assuming that there isn’t something untoward that happens, in which case there would be an immediate review?
“THE WITNESS: Exactly.”
The trial court fulfilled its duties. We reject defendant’s claims.
III. Burden of Proof Standard
Defendant claims that the trial court made its determination under the erroneous assumption that it should apply a clear and convincing evidence standard. In defendant’s view, the proper standard, given that a serious liberty interest is at stake, is proof beyond a reasonable doubt of the need for involuntary medication.
The ordinary burden of proof is by a preponderance of the evidence. (Evid. Code, § 115.) Clear and convincing evidence is a high standard—it requires evidence “so clear as to leave no substantial doubt [and] sufficiently strong to command the unhesitating assent of every reasonable mind.” (Conservatorship of Waltz (1986) 180 Cal.App.3d 722, 733, fn. 14.) It is applied in cases in which an individual’s undoubted rights to an autonomous and free-willed existence are at stake. (See Lillian F. v. Superior Court (1984) 160 Cal.App.3d 314, 322.) In the case of conservatees, the clear and convincing evidence standard “recognizes the balance between the state’s ‘ “profound interest in insuring appropriate treatment for the conservatee as well as access to such treatment even for those who by virtue of their illness are incapable of understanding the benefit of the treatment and giving consent to it, [and the] equal interest in insuring that such a serious and intrusive procedure is not forced on a conservatee who does not want it and who is simply in disagreement with his [or her] conservator and his [or her] physicians.” ’ ” (In re Conservatorship of Pamela J. (2005) 133 Cal.App.4th 807, 822.)
Extremely important rights have been cabined according to decisions made under the clear and convincing evidence standard. Some are listed in Conservatorship of Wendland (2001) 26 Cal.4th 519, 546-547: Courts have “applied the clear and convincing evidence standard, for example, in [citation] to ensure that a conservator’s decision to authorize sterilization of a developmentally disabled conservatee was truly in the latter’s best interests. [They] have also applied the clear and convincing evidence standard to findings necessary to terminate parental rights [citation].... [They] have required clear and convincing evidence of a person’s inability to provide for his or her personal needs as a prerequisite to the appointment of a conservator [citation], and of a conservatee’s incompetence to accept or reject treatment as a prerequisite to permitting involuntary electroconvulsive therapy [citations]. Similarly, the United States Supreme Court has applied the clear and convincing evidence standard in cases implicating fundamental liberty interests protected by the Fourteenth Amendment, such as proceedings to terminate parental rights [citation], to commit to a mental hospital [citation], and to deport.”
Consider the latter example—deportation—which may be determined by clear and convincing evidence. It would be hard to say that the stakes for potential deportees are less than those for defendant, although they are of a different kind. Deportation “may result... in loss of both property and life, or of all that makes life worth living.” (Ng Fung Ho v. White (1922) 259 U.S. 276, 284.) Our own Supreme Court’s mention of the clear and convincing evidence standard for involuntary electroconvulsive treatment (Conservatorship of Wendland, supra, 26 Cal.4th at p. 546) counsels us that the trial court was correct to apply a clear and convincing evidence standard here. Our own research has found no authority requiring the application of the beyond-a-reasonable-doubt standard in Penal Code section 1370 proceedings. Moreover, the Legislature is capable of specifying such a standard in liberty-depriving mental health contexts when it desires to do so, and it has not done so here.
For the foregoing reasons, we reject defendant’s claim.
IV. Dosage and Duration of Administration Specifications
Defendant complains that the trial court’s order was too broad in that it failed to specify the dosage of antipsychotic medication to be given to defendant and the time for which it may be administered. He proposes that we “require that the superior court’s order be amended to specify the administration of Risperdal for up to 10 milligrams per day for up to six months.” He finds support for the dosage specification in the due process-based United States Supreme Court precedent we have described above and the temporal limitation in the same due process principles and because constitutional guaranties to the equal protection of the laws (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7) require it, given that under the Lanterman-Petris-Short Act authorization for involuntary treatment of dangerous mentally disordered individuals lasts no more than 180 days following an initial two-week treatment regimen (Welf. & Inst. Code, § 5300) and involuntary medication of a state prisoner may last only 180 days unless continued by the granting of a successive petition (Department of Corrections v. Office of Administrative Hearings (1998) 66 Cal.App.4th 1100, 1104, 1106, 1108).
Defendant counsel had this exchange with Dr. Perez on cross-examination:
“Q. What’s the maximum dosage for Risperdal?
“A. Ten milligrams a day.
“Q. And you would start the dosage at what amount?
“A. Two milligrams twice a day. Four milligrams a day.”
We will assume, but without deciding the issue, that the trial court was required to specify the dosage range of antipsychotic medication to be given to defendant. Even if that is the case, combining the foregoing testimony, which confirmed Dr. Perez’s testimony regarding dosage on direct examination, with the trial court’s question to Dr. Perez about monitoring defendant for side effects, we understand the trial court to be confirming that defendant receive no more than ten milligrams of risperidone per day, and that amount only if necessary. As for the lack of specification of a limiting time period, defendant has not shown that he is sufficiently similarly situated to other categories of confinees receiving medication against their will to be entitled to relief under equal protection principles. For example, a state prisoner confined for life could be subjected to forcibly induced medication all along were it not for the 180-day limitation term set forth in an injunction discussed in Department of Corrections v. Office of Administrative Hearings, supra, 66 Cal.App.4th 1100, but defendant’s status must end in 2013 under both the court’s order and subdivision (c)(1) of Penal Code section 1370. We see no constitutional or prudential reason to direct the court to modify its order.
DISPOSITION
The trial court’s order of May 31, 2011, providing that “the court authorizes the Treatment Facility of the Department of Mental Health to administer antipsychotic medication involuntarily to GEORGE GONZALES when, and as prescribed by his treating psychiatrist, for the purpose of rendering OTHERS safe, ” is affirmed. The stay issued by this court on November, 3, 2011, in response to defendant’s petition for writ of supersedeas, will be dissolved without further notice, order, or other proceedings when this opinion becomes final.
WE CONCUR: Bamattre-Manoukian, Acting P. J., Mihara, J.