Filed 6/10/15 P. v. Velasco CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066582

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. Nos. MH110465,
                                                                    SCD253731, SCS272961)
GEORGE VELASCO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Joseph P.

Brannigan, Judge. Affirmed in part, reversed in part, and remanded.



         Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Anthony DaSilva

and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
                                    INTRODUCTION

       George Velasco appeals from a judgment finding him mentally incompetent,

ordering him committed to Patton State Hospital, and authorizing the involuntary

administration of medication. He contends there is insufficient evidence to support the

involuntary medication authorization. We agree and reverse the judgment as to the

authorization.

                                     BACKGROUND

       The San Diego County District Attorney charged Velasco with vandalism over

$400 (Pen. Code, § 594, subds. (a), (b)(1)),1 receiving stolen property (§ 496, subd. (a)),

and petty theft (§ 484). The following week, the trial court suspended criminal

proceedings pending a determination of Velasco's mental competency.

       A court-appointed forensic psychologist evaluated Velasco and submitted two

reports: the first opined Velasco was incompetent to stand trial, and the second opined

the most appropriate, least restrictive placement for him was a state hospital commitment.

In the first, more comprehensive report, the psychologist found Velasco's mental status

examination "notable for abstract thought process and paranoid and delusional thought

content" and she provided several supporting examples. The psychologist believed

Velasco suffered from an unspecified schizophrenia spectrum or other psychotic disorder.

He had prior similar diagnoses and had recently been prescribed an antipsychotic

medication, which he stated he had been refusing to take. Although he had a history of



1      Further statutory references are also to the Penal Code unless otherwise stated.
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six prior psychiatric hospitalizations, he denied them. He also denied having any

psychological problems. The psychologist described Velasco's insight and judgment as

poor.

        At a hearing to determine Velasco's mental competency, Velasco stipulated to

admission of the psychologist's reports into evidence. After receiving the reports into

evidence, the trial court stated, "Based upon the input from the doctor, I'll make a finding

that [Velasco] is not currently mentally competent to stand trial and assist his attorney.

[¶] Therefore, he'll be committed to Patton State Hospital for the term of three years or

until restored to competency. He'll get credit for 53 days, and we'll order that he take his

medication, voluntary or involuntary, if necessary."

        In the judgment of mental incompetency, the court more specifically found as the

basis for authorizing the involuntary administration of medication that "[Velasco] lacks

capacity to make a decision regarding antipsychotic medication. [Velasco's] mental

disorder requires medical treatment with antipsychotic medication, and if [Velasco's]

mental disorder is not treated with antipsychotic medication, it is possible that serious

harm to the physical or mental health of [Velasco] will result."

                                       DISCUSSION

        "An individual has a constitutionally protected liberty interest in avoiding the

unwanted administration of antipsychotic medication under the due process clause of the

Fourteenth Amendment. [Citations.] [¶] 'The significant due process liberty interest in

avoiding mandatory administration of antipsychotic medication is grounded in two

considerations.' [Citation.] 'First, the drugs "tinker[] with the mental processes,"

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[citation]' and while they can eliminate undesirable behaviors, they also interfere with a

person's autonomy and can impair his ability to function in certain contexts. [Citation.]

Second, while antipsychotic medication has well-documented therapeutic benefits, the

medication has serious, even fatal, side effects." (People v. O'Dell (2005) 126

Cal.App.4th 562, 568-569.)

       Nonetheless, a court may authorize the involuntary administration of antipsychotic

medication to restore a defendant's trial competence if "the Government, in light of the

efficacy, the side effects, the possible alternatives, and the medical appropriateness of a

particular course of antipsychotic drug treatment, [has] shown a need for that treatment

sufficiently important to overcome the individual's protected interest in refusing it." (Sell

v. United States (2003) 539 U.S. 166, 183.)

       In California, section 1370 governs the involuntary administration of antipsychotic

medication to criminal defendants found mentally incompetent.2 Section 1370

authorizes the involuntary administration of antipsychotic medication in three

circumstances. (§ 1370, subd. (a)(2)(B)(ii).) The first circumstance is when "[t]he

defendant lacks capacity to make decisions regarding antipsychotic medication, the

defendant's mental disorder requires medical treatment with antipsychotic medication,

and, if the defendant's mental disorder is not treated with antipsychotic medication, it is

probable that serious harm to the physical or mental health of the patient will result."



2       Section 1370 was amended effective January 1, 2015. (Stats. 2014, ch. 733, § 1;
Stats. 2014, ch. 742, § 1; Stats. 2014, ch. 759, § 7.3.) We refer to the current version of
the statute as the amendments did not affect the provisions at issue in this appeal.
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(§ 1370, subd. (a)(2)(B)(i)(I).) The second circumstance is when "[t]he 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." (§ 1370, subd.

(a)(2)(B)(i)(II).) The third circumstance is when "[t]he people have charged the

defendant with a serious crime against the person or 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

defendant's 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

patient's best medical interest in light of his or her medical condition." (§ 1370, subd.

(a)(2)(B)(i)(III).) A court many not order the involuntary administration of antipsychotic

medication in the third circumstance, unless it has found neither the first nor the second

circumstance apply. (§ 1370, subd. (a)(2)(B)(ii).)

       In this case, the trial court's involuntary medication authorization reflects an

implicit finding the first circumstance applied. We review the authorization for

substantial evidence. (People v. McDuffie (2006) 144 Cal.App.4th 880, 887.) Thus, for

the authorization to be valid there must be substantial evidence: (1) Velasco lacked

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capacity to make decisions regarding antipsychotic medication, (2) his mental disorder

required treatment with antipsychotic medication, and (3) without such treatment,

Velasco's mental or physical health probably would be seriously harmed. (§ 1370, subd.

(a)(2)(B)(i)(I).)

       As Velasco points out, however, the psychologist who evaluated him did not offer

an opinion on any of these points. Although the psychologist's report states Velasco had

symptoms of a severe mental disorder, had recently been prescribed medication, was

refusing to take the medication, and had poor insight and judgment, the report did not

state he lacked the capacity to make medication decisions, he required medication to treat

his mental disorder or that his mental or physical health would be harmed without

medication.

       Indeed, as to the appropriateness of treatment with antipsychotic medication, the

court could not have accepted an opinion from the psychologist even if the psychologist

had offered it. A psychologist is prohibited from prescribing medication. (Bus. & Prof.

Code, § 2904.) Consistent with this prohibition, section 1369, subdivision (a), governing

reports prepared for a criminal defendant's competency hearing, provides: "If an

examining psychologist is of the opinion that antipsychotic medication may be medically

appropriate for the defendant and that the defendant should be evaluated by a psychiatrist

to determine if antipsychotic medication is medically appropriate, the psychologist shall

inform the court of this opinion and his or her recommendation as to whether a

psychiatrist should examine the defendant. . . . If the defendant is examined by a

psychiatrist and the psychiatrist forms an opinion as to whether or not treatment with

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antipsychotic medication is medically appropriate, the psychiatrist shall inform the court

of his or her opinions as to the likely or potential side effects of the medication, the

expected efficacy of the medication, possible alternative treatments, and whether it is

medically appropriate to administer antipsychotic medication in the county jail."3 As no

such evidence was sought by or provided to the trial court in this case, the record

necessarily lacks sufficient evidence to support the trial court's involuntary medication

authorization.

                                       DISPOSITION

       The judgment is reversed as to the involuntary medication authorization and the

matter is remanded for further proceedings consistent with this opinion. The judgment is

affirmed in all other respects.


                                                                         MCCONNELL, P. J.

WE CONCUR:


McINTYRE, J.


IRION, J.




3      Section 1369 was also amended effective January 1, 2015. (Stats. 2014, ch. 759,
§ 5.) We also refer to the current version of this statute, as the amendments did not affect
the provisions at issue in this appeal.
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