Opinion
B194539
12-6-2006
MARTA DENIS KOBER, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Michael P. Judge, Public Defender, Terry Shenkman and John Hamilton Scott, Deputy Public Defenders, for Petitioner. No appearance for Respondent. Steve Cooley, District Attorney, Lael Rubin, Head Deputy District Attorney, Patrick D. Moran and Shirley S. N. Sun, Deputy District Attorneys, for Real Party in Interest.
We hold that respondent court did not comply with the statutes that apply either where a defendant consents to the administration of antipsychotic medication or does not have the capacity to consent to the administration of such medications. Accordingly, we order respondent court to conduct a new hearing in compliance with the applicable statutes.
FACTS
Marta Denise Kober was charged with felony vandalism. (Pen. Code, § 594, subd. (a).)
Kober was ordered to be examined by Jack Rothberg, M.D., Ph.D. (Dr. Rothberg). His five-page report concludes: "It is my opinion that Ms. Kober is not competent to stand trial due to her inability to cooperate with counsel in a rational manner. Her psychosis is so overwhelming that she would be unable to assist counsel, she would not be able to participate in the proceedings, would probably be disruptive and not able to provide much useful information that could help in cross-examining witnesses. She is unable to consider other options, etc. She requires aggressive treatment which would best be accomplished at the State Hospital level. Undoubtedly this would be necessary on an involuntary basis. [¶] It is medically appropriate that Ms. Kobers psychotic condition be treated with medication. This anti-psychotic medication is likely to be effective. She lacks the capacity to make decisions about such medication, and she will have to be medicated involuntarily in all likelihood. If untreated with medication, she will suffer serious harm to her physical and mental health. She is suffering from schizophrenia and experiences numerous delusional ideas which impair her thinking, her ability to interact with others and to function in an effective manner. She is highly paranoid and is very likely to deteriorate further in the absence of appropriate aggressive treatment with such medication. [¶] In her current psychotic state, Ms. Kober is likely to present some risk of dangerousness. This would greatly diminish once her psychosis is treated. Her behavior is unpredictable. She is likely to misinterpret the motives and actions of others which may result in serious harm to others or to herself. She is a danger to herself only inasmuch as her behavior is likely to be misinterpreted by others who in turn would react against her. [¶] Treatment with antipsychotic medication is very likely to render Ms. Kober competent to stand trial. However, there are potential side effects. Such medications are listed in the NIMH publication `Medications and in the current edition of the Physicians Desk Reference. Such medication is not likely to have side effects that would interfere with her ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner. There are a variety of antipsychotic medications available today, and it is quite feasible that one could be found which would have relatively minimal side effects and certainly not side effects that would interfere with her competence. Less intrusive treatments are unlikely to have substantially the same results as medication."
Relying on Dr. Rothbergs report, respondent court found that Kober did not have the capacity to give her consent. Kobers counsel disagreed, asserting that Kober had consented to the medication. Kobers counsel requested that respondent court state in the order that Kober consented to the medication and should Kober withdraw her consent, she must be returned to court for further proceedings. Respondent court refused, explaining that it had determined that Kober does not have the capacity to give her consent.
The minute order states: "Court orders involuntary antipsychotic medication is necessary as a part of treatment to assist the individual in regaining competency and provide authority of the state hospital to administer medications deemed appropriate.
[¶] The Court orders Sheriff to redeliver the defendant to the Court without further order from the Court once they [sic] receive notice from the state hospital that the patient has been restored to competency." The minute order continues: "The Court finds that the defendant is not presently mentally competent to stand trial within the meaning of Penal Code section 1368 and that he/she is not able to understand the nature of the proceedings taken against him/her and is not able to assist counsel in the conduct of a defense in a rational manner. Criminal proceedings remain adjourned. [¶] The Court recommends placement in Patton State Hospital. [¶] The defendant is remanded to the custody of the Sheriff. The Sheriff is ordered to deliver the defendant to the care and custody of the State Department of Mental Health for placement in Patton State Hospital."
DISCUSSION
The standard for review of an order authorizing the administration of antipsychotic medication is whether substantial evidence supports the order. (Carter v. Superior Court (2006) 141 Cal.App.4th 992, 1001.)
In Sell v. United States (2003) 539 U.S. 166, the Supreme Court held that, where a mentally ill defendant refuses medication, a governmental entity may medicate that defendant to render the defendant competent for trial. "Although constitutionally permitted, orders for involuntary medication of antipsychotic drugs are disfavored and should be issued only on a compelling showing. [Citation.] `[A] court that is asked to approve involuntary medication must be provided with a complete and reliable medically-informed record, based in part on independent medical evaluations, before it can reach a constitutionally balanced Sell determination. [Citation.] This includes `"an independent and timely evaluation of the [defendant] by a medical professional, including attention to the type of drugs proposed, their dosage, and the expected duration of a persons exposure, as well as an opportunity for the [defendant] to challenge the evaluation and offer his or her own medical evidence in response." [Citation.]" (Carter v. Superior Court, supra, 141 Cal.App.4th at p. 1000.)
I
Through defense counsel, Kober contends that she consented to take the medication.
Penal Code section 1370, subdivision (a)(2)(B)(i), which provides the process necessary when a defendant consents to taking the antipsychotic medication:
Unless otherwise noted, all statutory references are to the Penal Code.
"(2) Prior to making the order directing that the defendant be confined in a state hospital or other treatment facility or placed on outpatient status, the court shall proceed as follows: [¶] . . . [¶]
"(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:
"(i) If the defendant, with advice of his or her counsel, consents, the court order of commitment shall include confirmation that antipsychotic medication may be given to the defendant as prescribed by a treating psychiatrist pursuant to the defendants consent. The commitment order shall also indicate that, if the defendant withdraws consent for antipsychotic medication , after the treating psychiatrist complies with the provisions of subparagraph (C), the defendant shall be returned to court for a hearing in accordance with this subdivision regarding whether antipsychotic medication shall be administered involuntarily ." (Emphasis added.)
Through her counsel, Kober insists that she consented to take the medication. If respondent court could rely on that representation, then respondent court could have found that Kober consented and should have modified its order to include the language that "if the defendant withdraws consent for antipsychotic medication, after the treating psychiatrist complies with the provisions of subparagraph (C), the defendant shall be returned to court for a hearing in accordance with this subdivision regarding whether antipsychotic medication shall be administered involuntarily."
II
If Kober did not have the capacity to give her consent, then respondent court should have followed the procedures set out in section 1370, subdivision (a)(1)(F)(2)(B)(ii):
"(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:
"[¶] . . . [¶]
"(III) The people have charged the defendant with a serious crime against . . . 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 defendants 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 patients best medical interest in light of his or her medical condition."
In People v. ODell (2005) 126 Cal.App.4th 562, 569-570, the Third District summarized the applicable subsection: "[T]he court can issue an order authorizing the hospital to involuntarily administer antipsychotic medication to defendant if the following five factors are present: (1) the People have charged defendant with a serious crime against the person or property; (2) involuntary administration of antipsychotic medication is substantially likely to render defendant competent to stand trial; (3) the medication is unlikely to have side effects that interfere with defendants ability to understand the nature of the criminal proceedings or assist counsel in conducting his defense in a reasonable manner; (4) less intrusive treatments are unlikely to have substantially the same results; and (5) antipsychotic medication is in defendants best medical interest in light of his medical condition. [Citation.]" (Fn. omitted.)
In Carter v. Superior Court, supra, 141 Cal.App.4th 992, our colleagues in Division Eight of our District examined a case in which the same psychiatrist examined the criminal defendant who was charged with rape and other violent offenses. Dr. Rothbergs report concluded: "`It is medically appropriate that [petitioners] psychiatric condition be treated with medication. This anti-psychotic medication is likely to be effective. [Petitioner] lacks the capacity to make decisions about such medication, and he will have to be medicated involuntarily in all likelihood. If untreated with medication, he will suffer serious harm to his physical and mental health. [Petitioner] is suffering from schizophrenia and experiences numerous delusional ideas which impairs his thinking, his ability to interact with others and to function in an effective manner. He is highly paranoid and is very likely to deteriorate further in the absence of appropriate aggressive treatment with such medication. Dr. Rothberg further concluded, `Treatment with antipsychotic medication is very likely to render [petitioner] competent to stand trial. However, there are potential side effects. Such medications are listed in the NIMH publication "Medications" and in the current edition of the Physician[s] Desk Reference. Such medication is not likely to have side effects that would interfere with his 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 as medication." (Carter v. Superior Court, supra, 141 Cal.App.4th at p. 997.) The trial court ordered Dr. Rothberg and the other appointed doctor to file supplemental reports. They did. Carters attorney objected on the basis that the reports still did not comply with Sell; the trial court disagreed.
Division Eight found the reports, which were in conflict, lacking: "The evidence regarding the actual medication petitioner should be given was nonexistent. Dr. Rothberg concluded petitioner should be treated with `antipsychotic medication and that the medication would likely render him competent to stand trial. Dr. [Samuel L.] Miles conditioned the effectiveness of antipsychotic medication on petitioner suffering from bipolar or schizoaffective disorder; medication would not be effective if petitioner had a delusional disorder. In Dr. Miless view, further evaluation and testing would be necessary to determine if involuntarily medicating petitioner would be appropriate and effective. Other than generally referring to `medication, neither psychiatrist specified which antipsychotic drugs petitioner should be prescribed. This deficiency underscores the constitutional failure. At a Sell hearing, `the [trial] court is required to consider specific drugs, their unique side effects, and their medical appropriateness. Specificity as to the medications to be administered is critical. [Citation.]
"Evidence regarding the potential side effects of particular antipsychotic drugs is similarly absent. Neither Dr. Rothberg nor Dr. Miles articulated any side effects petitioner might reasonably experience if he was forcibly medicated. Their reports simply referred the court to certain general medical publications on the potential side effects of antipsychotic medications generally. These statements were not only unhelpful to the court, but they were wanting under Sell. Without specific information regarding the drugs to be given and possible side effects, there was no evidence to support the psychiatrists opinions, or the courts conclusions, that involuntarily administering such medication was substantially likely to render petitioner competent to stand trial and would not interfere with his `ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner. [Citation.]
"[¶] . . . [¶]
"The only information provided by Dr. Rothberg concerning alternatives or less intrusive methods was his conclusory statement that `[l]ess intrusive treatments are unlikely to have substantially the same results as medication. Alternative treatments were not described, nor was there any explanation of what results might be expected from such treatments or why those results, while perhaps not the `same, would not be sufficient to satisfy the governments interests. Dr. Miles did not give an opinion on this subject, placing a question mark where the form inquired about less intrusive treatments. In short, the evidence was insufficient to support the trial courts finding that involuntary medication was necessary to further governmental interests." (Carter v. Superior Court, supra, 141 Cal.App.4th at pp. 1003-1005, fn. omitted.)
Respondent court did not determine whether felony vandalism is a "serious crime" under section 1370, subdivision (a)(1)(F)(2)(B)(ii)(III). Even if respondent court had determined that felony vandalism is a "serious crime," it was then obligated under the statute to find whether the administration of the medication would be "substantially likely to render the defendant competent to stand trial; the medication is unlikely to have side effects that interfere with the defendants 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 patients best medical interest in light of his or her medical condition." Respondent court had no basis upon which to make such determinations, as Dr. Rothbergs report did not set forth evidence to support his conclusions.
As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate "in the first instance." (Code Civ. Proc., § l088; Alexander v. Superior Court (l993) 5 Cal.4th 1218, 1222-1223; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Opposition was requested and the parties were notified of the courts intention to issue a peremptory writ. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)
DISPOSITION
THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its order of September 19, 2006, in Los Angeles Superior Court case No. BA301848, entitled People v. Marta Denise Kober, ordering that petitioner Marta Denise Kober be administered anti-psychotic medication, and, as soon as practicable, proceed with one of the two following alternatives: (1) Issue a new order that complies with Penal Code section 1370, subdivision(a)(2)(B)(i); or (2) Set and conduct a full evidentiary hearing pursuant to Penal Code section 1370, subdivision (a)(1)(F)(2)(B)(ii).
THE COURT:
ROTHSCHILD, J.
JACKSON, J.