Filed 3/21/13 P. v. Blackburn CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038181
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. BB304666)

              v.

BRUCE LEE BLACKBURN,

         Defendant and Appellant.



         Bruce Lee Blackburn is an inmate and patient at Coalinga State Hospital, and
asserts on appeal that the court erred in ordering that he be involuntarily medicated with
antipsychotic drugs, because the order is vague and overbroad.
                                  STATEMENT OF THE FACTS AND CASE
         In December 2003, appellant was convicted of burglary (Pen. Code, § 459),1 and
false imprisonment (§ 236). As a condition of his parole in 2006, appellant was admitted
as a mentally disordered offender (MDO) to Atascadero State Hospital pursuant to
section 2962. Appellant was later transferred to Coalinga State Hospital, where he
remains.
         In December 2011, the district attorney filed a petition pursuant to section 2972
and In re Qawi (2004) 32 Cal.4th 1 (Qawi), requesting an order to involuntarily medicate


         1
             All further unspecified statutory references are to the Penal Code.
appellant. The petition was accompanied by a report from appellant’s treating physician,
Dr. Joseph Cook, who represented that appellant had a long history of psychiatric illness
dating back to 1977, that he has had approximately 15 psychiatric hospitalizations and
has been on a Qawi order for involuntary administration of medications since 2007.
Dr. Cook concluded: “[Appellant] requires a Qawi order due to the fact that he
demonstrates symptoms consistent with a severe mental illness, lacks insight into his
psychiatric condition, and has been noncompliant with psychiatric medications. In
addition, when he is not taking psychiatric medications, he becomes more paranoid and
uncooperative with his medical care which results in him becoming a substantial danger
to self and/or others.”
       Dr. Cook testified at the section 2972 hearing that appellant was taking Risperdal
for schizophrenia, but that he complained of two side effects: trembling at night and foot
tapping. Dr. Cook prescribed the additional medications of Cogentin, for the trembling,
and Klonopin for the foot tapping. In addition, Dr. Cook stated that appellant did not
think his medications helped him in any way, believing that their only effect was to cause
to foot tapping and night trembling. Appellant told Dr. Cook he would not take the
medications voluntarily.
       At the conclusion of the hearing, the court found that appellant was not competent
to make medical decisions for himself, and made the following involuntary medication
order, in relevant part: “[T]he court orders the Department of Mental Health
[(Department)] to administer medication involuntarily to [appellant] for the purpose of
rendering [him] safe.”
                                       DISCUSSION
       Appellant asserts that the court’s order that he be involuntarily medicated is vague
and overbroad, because it does not specify the medications to be given, and does not state
that the medications are necessary and appropriate for appellant’s treatment.

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       Individuals in custody may refuse to take antipsychotic drugs. This is inherent in
the right to privacy, and is guaranteed by article I, section 1, of the California
Constitution. (See Qawi, supra, 32 Cal.4th 1, 14.) However, the right of a person
committed as an MDO “to refuse antipsychotic drugs is qualified.” (People v. Fisher
(2009) 172 Cal.App.4th 1006, 1013.) The right to refuse antipsychotic drugs “may be
overcome in nonemergency situations by a judicial determination either that the person is
incompetent or that he or she is dangerous within the meaning of [Welfare and
Institutions Code] section 5300: ‘[A]n MDO can be compelled to be treated with
antipsychotic medication under the following nonemergency circumstances: (1) he is
determined by a court to be incompetent to refuse medical treatment; (2) the MDO is
determined by a court to be a danger to others within the meaning of Welfare and
Institutions Code section 5300.’ ” (Ibid., quoting Qawi, supra, 32 Cal.4th at p. 27.)
       In this case, the basis of the involuntary order was a finding that appellant, as an
MDO was not competent to make medical decisions. “We review an order authorizing
involuntary administration of antipsychotic medication for substantial evidence.
[Citation.]” (People v. Fisher, supra, 172 Cal.App.4th at p. 1016.) In deciding the
sufficiency of the evidence, we draw all reasonable inferences from the record to support
the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We do not weigh the
evidence or decide the credibility of the witnesses. (Ibid.)
       Here, appellant concedes that the trial court’s finding that he was incompetent to
refuse medical treatment was supported by substantial evidence. Appellant asserts that
while the order was proper, it was vague and overbroad, and gives the Department a
“blank check to medicate appellant in any way they want without any prior determination
by a court that the medication is necessary or appropriate.” Of particular concern to
appellant is the administration of the drugs Klonopin and Cogentin to treat the side
effects of Risperdal, because while Risperdal is necessary for the treatment of his

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schizophrenia, there was no court finding that the additional drugs were medically
necessary.
       In arguing that the trial court was required to find the drugs prescribed to treat him
were medically necessary and/or appropriate, appellant is seeking to expand the law
regarding involuntary medication of MDO’s to mimic that of mentally ill criminal
defendants who have been deemed incompetent to stand trial. (See Sell v. United States
(2003) 539 U.S. 166, 180-181 (Sell).) Specifically, to order involuntary medication for
the purpose of rendering a criminal defendant competent to stand trial, the court must
find the following four factors present: (1) “important governmental interests are at
stake”; (2) taking account of less intrusive alternatives, 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.” (Id. at pp. 180-181.)
       The case of People v. Christina (2010) 190 Cal.App.4th 1040, upon which
appellant relies for his position that a finding of medical necessity or appropriateness is
required for an involuntary medication order for an MDO, does not support his argument.
While the Christina court reversed an order for involuntary medication because it did not
specify the drugs and their medical appropriateness, the court recognized and explicitly
mentioned that the “Sell 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.” (Christiana, supra, 190 Cal.App.4th at p.1049,
fn. 4, italics added.)
       Where, as here, an application for involuntary medication is based on the need to
treat an MDO who is not competent to make medical decisions on his own behalf, the

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state need only meet the test articulated in Qawi. (People v. Fisher, supra, 172
Cal.App.4th 1006, 1015.) There is no additional requirement that the court determine the
medication to be medically necessary or appropriate under Qawi.
       As appellant concedes, there was substantial evidence to support the involuntary
medication order in this case, because Dr. Cook stated that appellant suffered from
schizophrenia and was a danger to others when not medicated, and was less delusional
and more complaint with medical staff when he was on medication. This evidence was
sufficient to support the court’s order for involuntary medication; the court did not need
to specify the drugs to be given, nor was it required to find those drugs medically
necessary or appropriate under Qawi.
                                       DISPOSITION
       The order is affirmed.


                                          ______________________________________
                                                     RUSHING, P.J.



WE CONCUR:



____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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