Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC133554A; SC144364A
SEPULVEDA, J.
In case No. SC144364A, Andre Walton appeals from a judgment imposed upon his guilty plea to automobile theft (Veh. Code, § 10851, subd. (a)), receiving stolen property (Pen. Code, § 496, subd. (a)); and driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). Defendant also admitted that he suffered four prior felony convictions within the meaning of Penal Code section 1203, subdivision (e)(4). In case No. SC 133554A, defendant admitted the allegations of a probation revocation petition that he drove a car with a suspended driver’s license and that he was in possession of a stolen car.
In this case, defendant was previously placed on probation on May 7, 2004, following his guilty plea to assault by means likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)).
On April 21, 2006, the court sentenced defendant in both cases, finding that the cases were unusual and that it was in the interests of justice to grant probation. In case No. SC144364A, the court suspended imposition of sentence and placed defendant on probation for a term of five years. In case No. SC133554A, the court reinstated defendant on probation. The conditions of probation included that defendant enter a residential treatment program and that he take medication as directed. Defendant contends that the court’s probation condition that he take medication violates due process because there is no medical evidence in the record to support it. We agree that no medical evidence in the record supports this condition.
I. PROCEDURAL BACKGROUND
Prior to the sentencing hearing, defendant underwent a psychological evaluation at the request of his attorney. The evaluator opined that defendant presented with dual disorders of addiction and mental illness. Apart from, but “affiliated with” his chemical dependency, defendant also exhibited symptoms of depression, anxiety, and psychosis. His history suggested “concomitant mental disorder(s) as an underlying force of [his] illegal offenses.” The evaluator recommended a residential treatment program for at least six months, psychiatric and pharmacological evaluations and treatment, and individual psychotherapy. She later clarified that she was not a medical doctor and was not recommending medication, and that while the etiology of defendant’s mental disorders appeared “partially endogenous [in] nature (physiological/neurological),” further assessment was necessary in order to determine if medication was necessary in his treatment.
The evaluation was conducted by Teena Scovis-Weston, Ph.D., a licensed marriage and family therapist.
The court granted defendant probation in case No. 144364A for five years and reinstated defendant on probation in case No. SC133554A. The court ordered that defendant complete a residential treatment program, and over defendant’s objection, ordered that he take medication as directed by a mental health professional. The court reasoned that defendant asked the court to consider the issue of his mental difficulties, and that the medication condition was an attempt to address those issues and insure his compliance with probation.
Defendant thereafter moved for reconsideration of the probation condition directing him to take medication. The court denied the motion.
II. DISCUSSION
Defendant contends that the trial court abused its discretion in requiring that he take medication as directed as a condition of probation. He argues that the condition must be stricken because there is no medical evidence in the record to support it. We agree that the record in the present case, as it stands, is inadequate to support this condition.
It is well settled that a trial court has broad discretion in determining the conditions of probation. (People v. Lent (1975) 15 Cal.3d 481, 486.) “ ‘The court may impose and require . . . such reasonable conditions[] as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.’ (Pen. Code, § 1203.1, subd. (j).) The trial court’s discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, we have interpreted Penal Code section 1203.1 to require that probation conditions which regulate conduct ‘not itself criminal’ be ‘reasonably related to the crime of which the defendant was convicted or to future criminality.’ ” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
The United States Supreme Court has recognized a constitutionally protected liberty interest under the due process clause of the Fourteenth Amendment to the federal Constitution to refuse administration of antipsychotic medication. (Riggins v. Nevada (1992) 504 U.S. 127, 137; Washington v. Harper (1990) 494 U.S. 210, 221-222.) The liberty interest is grounded in two considerations: (1) the drugs tinker with the mental processes affecting cognition, concentration, behavior, and demeanor; and (2) the drugs can have serious, even fatal, side effects. (United States v. Williams (9th Cir. 2004) 356 F.3d 1045, 1053-1055.) While the therapeutic benefits of the drugs are well documented, the resulting personality and behavioral changes may interfere with a person’s self-autonomy, and “can impair his or her ability to function in particular contexts.” (Id. at p. 1054.)
Here, the court’s order simply directs defendant “to take medication as directed by his mental health professional.” While defendant underwent a psychological evaluation which indicated that he suffered from a mental illness or disorder, the evaluator, who was not a medical doctor, but simply a licensed marriage and family therapist, opined that defendant would benefit from psychiatric and pharmacological evaluations and treatment. She did not recommend medication and acknowledged that further assessment was necessary to determine whether medication was indicated. Although the court noted at the hearing that the medication condition was not intended to require that defendant take medication that causes unpleasant side effects, the probation condition is not so limited. In effect, it requires defendant to take any medication that may be prescribed in his treatment program.
In United States v. Williams, supra, 356 F.3d at pp. 1053-1057, the Ninth Circuit held that a probation condition requiring that a defendant take psychotropic and other medication as prescribed by physicians treating his mental illness was improper because the record lacked any medical evidence supporting the condition. “[T]he unique nature of involuntary antipsychotic medication and the attendant liberty interest require that imposition of such a condition occur only on a medically-informed record.” (Id. at p. 1056.) While we are not bound by Williams, federal court decisions are persuasive authority and entitled to great weight. (People v. Bradley (1969) 1 Cal.3d 80, 86.)
Additionally, the condition infringes upon defendant’s right to privacy secured under the California Constitution. “It is settled in California that every person has a right to give or withhold informed consent to a proposed medical treatment under both the state constitutional guarantee of privacy [citation] and the common law [citations].” (Keyhea v. Rushen (1986) 178 Cal.App.3d 526, 540.) Because of its constitutional implications, the medication condition must be essential to the goals of rehabilitation and safety (People v. Pointer (1984) 151 Cal.App.3d 1128, 1139), and it must be the “less restrictive alternative.”
We fully support the discretion of the trial court to draft conditions of probation that address the needs of individual defendants and protect public safety. We further recognize that the trial court here considered defendant’s mental condition at his request, and that the sentence in this case, allowing defendant to remain on probation rather than being committed to state prison, was quite generous given both the facts of the current offense and defendant’s criminal history. We understand that the trial court attempted to draft conditions of probation that would permit defendant an opportunity to receive proper treatment for his dual diagnosis, and yet still protect the community. Missing from the record, however, and necessary to the trial court’s order that defendant take prescribed medication, was medical evidence supporting the necessity of medication for defendant. Indeed, the only mental health professional that examined defendant did not recommend medication, but rather indicated that defendant should undergo a pharmacological evaluation to determine whether medication was indicated. While defendant was described by Scovis-Weston as exhibiting symptoms of depression, anxiety, and psychosis, those symptoms were also described as being affiliated with his chemical dependency. There was no evidence before the court that defendant’s psychiatric or mental condition called for medication. The court therefore had no evidence before it to evaluate the appropriateness of its probation condition. (See People v. O’Dell (2005) 126 Cal.App.4th 562, 572 [order authorizing involuntary administration of antipsychotic medication to defendant confined in state hospital invalid where no medical evidence to support it].)
While defendant was committed pursuant to Welfare & Institutions Code section 5150 just a few days prior to the current incident, his symptoms of “paranoia, delusions, visual hallucinations, and internal preoccupation” were described as “clinically categorized under the umbrella of drug-induced symptomatology.”
III. DISPOSTION
The probation condition requiring that defendant take medication prescribed by a mental health professional is not supported by adequate evidence of medical necessity in the record. That condition is stricken, and the matter is remanded for further action consistent with this opinion. In all other respects, the judgment is affirmed.
The trial court, of course, may take further evidence on this issue on remand, and if medical evidence supports the probation condition regarding medication, it may be ordered. By the time this case is heard on remand, defendant may well have been evaluated by a physician and it may have been determined whether or not medication is appropriate for him. If the probation condition requiring that defendant take any prescribed medication is accordingly reinstated by the trial court and defendant objects to the side effects of ordered medication, the burden will be on him to work through these issues with his physician, or to return to court seeking a modification of the probation condition. Absent such modification, however, failure to take prescribed medication would then be a potential basis for revocation of his probation.
We concur: RUVOLO, P.J. RIVERA, J.