Filed 12/20/13 P. v. Jones CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A138892
v.
ANTHONY CLAYTON JONES,                                               (San Francisco County
                                                                     Super. Ct. No. 219684)
         Defendant and Appellant.


                                              I. INTRODUCTION
         This is an appeal from a trial court order authorizing the involuntary treatment of
appellant with antipsychotic medications pursuant to Penal Code section 1370,
subdivision (a)(2)(B)(ii)(I).1 Appellant contends that the trial court erred in authorizing
such medication, because its use was not supported by substantial evidence and,
therefore, in violation of his constitutional rights. We disagree and affirm the trial court’s
order.
                     II. FACTUAL AND PROCEDURAL BACKGROUND
         On August 19, 2010, appellant went into a Walgreens store in San Francisco. The
manager recognized appellant from prior encounters, and told him he should not be in the
store. Appellant pulled out a knife and lunged at the manager, slicing his arm with the
knife. Appellant then filled a backpack with store merchandise and left. He was arrested
outside the store.


         1
             All further statutory references are to the Penal Code.


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       On August 23, 2010, the district attorney filed a complaint charging appellant with
one felony count of second degree robbery under section 211 and one count of assault
with a deadly weapon under section 245, subdivision (a)(1).
       At a court hearing on September 3, 2010, defense counsel “expressed doubt as to
defendant’s competency” and, as a result, “[c]riminal proceedings were ordered
suspended and shall remain suspended.” Pursuant to section 1369, the court appointed
Dr. Mary Ann Kim to evaluate appellant. She did so and concluded, based on her
meeting with him and a review of his medical records, that he was not competent to stand
trial. Specifically, she diagnosed appellant as suffering from a “schizoaffective disorder”
with “mild paranoid ideation.” In a September 24, 2010, letter to the court, she opined
that appellant’s mental condition rendered him “unable to understand the nature of the
criminal proceedings” pending against him, and also unable to “make a decision about
what is medically appropriate for himself.” Dr. Kim also noted that appellant had a long
history of mental health problems, and had not been taking the medications necessary to
address those problems.
       Based on Dr. Kim’s report, on October 4, 2010, the court found appellant not
competent to stand trial on the charges against him, and ordered him committed to Napa
State Hospital.
       After approximately 16 months of treatment at Napa State Hospital—which
included administration of antipsychotic medication—the court found, in an order dated
March 5, 2012, that appellant’s mental competency had been restored, and it reinstated
the criminal proceedings against him.
       On March 1, 2013,2 at the conclusion of the preliminary hearing, the court ordered
appellant held to respond to both charges in the complaint.
       However, on March 6, the trial court again declared doubt about appellant’s
competency and appointed two other experts to evaluate him pursuant to sections



       2
           All further dates noted are in 2013.


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1368/1369. Those two experts were Dr. Paul Good, a clinical psychologist, and Dr. Anna
Glezer, a psychiatrist.
       On March 12, the district attorney filed a two-count information charging
appellant with the same two charges that were in the complaint. However, the
information also alleged the use of a deadly weapon in the commission of the robbery.
(§ 12022, subd. (b)(1).)
       The following month, Dr. Good filed his report with the court. He noted that he
was only able to meet with appellant for 10 minutes before appellant terminated their
meeting. Based on his review of appellant’s medical records, Dr. Good observed that
appellant had an extremely long and difficult psychiatric history, including 13 separate
hospitalizations between August 2004 and June 2010, plus several other commitments
since that time. With regard to those commitments, Dr. Good noted that appellant often
refuses to take medications and had been taken to San Francisco General Hospital on
February 19, after he had been found cutting his legs with a razor blade, “yelling
uncontrollably, angry, and delusional.”
       On April 3, the trial court ordered (1) appellant to “cooperate with the doctors”
and (2) Dr. Good to prepare a supplemental report. Dr. Good’s subsequent report noted
that he was unable to provide much additional substantive response because appellant
refused to meet with him, instead lying on the floor with a “blanket over his head.”
Based on his interactions with appellant and his review of appellant’s psychiatric history,
Dr. Good concluded that appellant “is probably not competent at the present time” but
was “likely to benefit from anti-psychotic medications.”
       On April 16, Dr. Glezer filed a report with the court. Like Dr. Good she
concluded that appellant was not competent to stand trial. She did so based on an
interview with him, a review of his psychiatric files and relevant police reports, the
complaint, and Dr. Kim’s September 2010 report to the court. Dr. Glezer’s report
addressed nine separate issues. Among other things, she opined that (1) appellant met the
criteria for both “Schizoaffective Disorder” and “Cognitive Disorder Not Otherwise
Specified,” and (2) appellant would not be able to understand the nature of the criminal


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proceedings or rationally assist counsel in his defense. She concluded that he was
“currently not competent to stand trial,” but that anti-psychotic medications were both an
“appropriate treatment” for him and likely to restore him to “mental competence” as well
as “effective for treating the symptoms that are currently experienced by [appellant].”
Dr. Glezer also opined that appellant did not have “the capacity to make decisions
regarding antipsychotic medication,” and was currently a “danger to himself or others.”
       With regard to appellant being a danger to himself or others, Dr. Glezer stated
“[a]t the time of this assessment, it is my opinion that [appellant] is at risk of harming
himself or others. His risk factors include active mental illness, a history of impulsive
behavior, and a history of substance use. The records available note multiple prior
instances of violence, which puts him at risk of harming others, and that he has a history
of self-injurious behaviors, which places him at higher risk of harming himself.”
       On April 22, the trial court found appellant not competent to stand trial and
lacking in the capacity to make decisions regarding the administration of medication. It
then appointed the Golden Gate Conditional Release Program (CONREP) to recommend
a referral. On May 17, CONREP recommended that appellant be committed to Napa
State Hospital under section 1370. On May 20, the court committed appellant to Napa
State Hospital. It also ordered, pursuant to section 1370, subdivision (a)(2)(B)(ii)(I),3 that
the “treatment facility may involuntarily administer antipsychotic medication to the
defendant when and as prescribed by the defendant’s treating psychiatrist.”
       On June 4, appellant filed a timely notice of appeal from the commitment and
involuntary medication order.
                                     III. DISCUSSION
       The parties agree that our standard of review in this matter is whether substantial
evidence supports the trial court’s order authorizing his involuntary medication. And,
indeed, this court has so held (see People v. McDuffie (2006) 144 Cal.App.4th 880, 887),


       3
          The Attorney General initially miscites this section as “Section 1370, subdivision
(a)(2)(ii)(I) in her brief to us, but later correctly cites it.


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as have several of our sister courts. (See People v. O’Dell (2005) 126 Cal.App.4th 562,
570 (O’Dell); People v. Christiana (2010) 190 Cal.App.4th 1040, 1049-1050
(Christiana); People v. Coleman (2012) 208 Cal.App.4th 627, 633 (Coleman)4).
Accordingly we look for, as our Supreme Court has held, “ ‘ “evidence which is
reasonable, credible, and of solid value . . . .” ’ ” (People v. Prince (2007) 40 Cal.4th
1179, 1251, quoting from People v. Hillhouse (2002) 27 Cal.4th 469, 496.)
       Justice Pollak, writing for a unanimous court in Coleman, summarized the legal
principles underlying involuntary medical treatment authorized—albeit under limited
circumstances—by section 1370. He stated: “ ‘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.” ’ ” (Coleman, supra, 208 Cal.App.4th at p. 632, citing Christiana,




       4
        Surprisingly, neither of the parties to this appeal have cited Coleman, the most
recent appellate decision on this issue, and one by another Division of this court.


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supra, 190 Cal.App.4th at p. 1049, and Sell v. United States (2003) 539 U.S. 166, 178,
180–181 (Sell).)
       The Coleman court further explained that “[s]ection 1370, which authorizes
involuntary treatment in California, ‘essentially tracks the Sell factors. (§ 1370, subd.
(a)(2)(B)(i)(III); [citation].) Under section 1370, . . . the trial court may authorize “the
treatment facility to involuntarily administer antipsychotic medication to the defendant
when and as prescribed by the defendant’s treating psychiatrist,” if the court determines
that “[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)(ii), (a)(2)(B)(i)(III).)’ ” (Coleman, supra, 208
Cal.App.4th at p. 633, citing Christiana, supra, 190 Cal.App.4th at pp. 1049-1050).)
       The O’Dell and Christiana courts also agreed that there are four “Sell factors”
which must be met to validate an involuntary administration of antipsychotic drugs. (See
O’Dell, supra, 126 Cal.App.4th at pp. 570-572 and Christiana, supra, 190 Cal.App.4th at
pp. 1050-1052.) Although only one of them is at issue here, we will summarize all four
as described by the Christiana court. It stated that (1) the “first Sell factor involves an
inquiry into whether the charged offense is a serious crime against person or property in
light of the individual case” (Christiana, supra, 190 Cal.App.4th at p. 1050); (2) the
“second Sell factor requires the prosecution to produce substantial evidence that
involuntarily medicating the defendant would significantly further the state interests of
timely prosecution and a fair trial, which in turn requires showings that such medication
is both substantially likely to render the defendant competent to stand trial and
substantially unlikely to have side effects that would interfere significantly with the
defendants ability to assist counsel in conducting the defense” (ibid.); (3) the “third Sell


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factor requires a showing that involuntary medication is necessary to further the state’s
interests in timely prosecution and a fair trial” (id. at p. 1051); (4) and that the “fourth
Sell factor requires a showing of medical appropriateness.” (Id. at p. 1052.)
       Citing section 1370, subdivision (a)(2)(B)(ii)(I), appellant’s argument is based on
the fourth factor articulated in Sell and reiterated in Christiana. He argues that the trial
court’s order is “not supported by substantial evidence that, ‘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.’ ”
       The subsection of section 1370, subdivision (a)(2) relied on by appellant
provides: “(B) The court shall hear and determine whether the defendant, with the 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: [¶] (I) The 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. Probability of serious harm to the physical or mental
health of the defendant requires evidence that the defendant is presently suffering adverse
effects to his or her physical or mental health, or the defendant has previously suffered
these effects as a result of a mental disorder and his or her condition is substantially
deteriorating. The fact that a defendant has a diagnosis of a mental disorder does not
alone establish probability of serious harm to the physical or mental health of the
defendant.” (Italics added.)
       As noted, appellant’s sole contention on appeal is that Dr. Glezer’s report does not
provide “substantial evidence of probable serious harm to appellant’s physical or mental
health without antipsychotic medication.” We disagree. Dr. Glezer’s thorough report
and recommendations were based on her interview of appellant as well as her review of
extensive records concerning his conduct and behavior. Ten such records were reviewed


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by Dr. Glezer, including several months of “San Francisco Jail Psychiatric Services
Notes,” eight “San Francisco Police Department Incident Report[s],” a “[c]hronological
report of investigation,” three court reports submitted by the Napa State Hospital, and Dr.
Kim’s 2010 report.
       Based on both her interview with appellant and her review of these documents, Dr.
Glezer made several specific findings which, we conclude, constitute substantial evidence
that, without medication, appellant and/or others could well suffer additional physical and
mental harm. Thus, she first noted that the records she examined showed that appellant
“has previously been treated with antipsychotic medication and that this helped to
improve his mental state.” In the next paragraph of her letter to the court, Dr. Glezer
responded to the question of whether “antipsychotic medication [is] likely to restore this
defendant to mental competence?” by stating: “It is my opinion that it is likely that with
medication, Mr. Jones’ symptoms will improve, leading to improvements in his thought
process and behavior, and therefore, mental competence.” On the next page of her letter
to the court, Dr. Glezer responded to this specific question: “What are the likely effects of
the medication, expected efficacy of the medication, and possible alternative treatments?”
The relevant—for present purposes—portion of her response was: “By adjusting the dose
and type of medication utilized, most individuals with psychosis and mania experience
significant improvement of their symptoms. [¶] With respect to side effects, available
antipsychotic medications vary significantly. However, all of the medications share a
low risk of muscle stiffness, restlessness, fever, delirium, or (with long term use)
irreversible abnormal involuntary movements. Other possible side effects include weight
gain and elevated risks of diabetes, high cholesterol, and high triglycerides. It is
impossible to predict the exact effects of a medication in advance, but the prescribing
physician would be able to work with Mr. Jones to optimize the medication and dose in
order to minimize side effects and maximize benefits.”
       In addition, in explaining her affirmative answer to the court’s question of whether
appellant was “a danger to himself or others,” Dr. Glezer responded that “[a]t the time of
this assessment, it is my opinion that Mr. Jones is at risk of harming himself or others.


                                              8
His risk factors include active mental illness, a history of impulsive behavior, and a
history of substance use. The records available note multiple prior instances of violence,
which puts him at a higher risk of harming others, and that he has a history of self-
injurious behaviors, which places him at a higher risk of harming himself.” (Italics
added.)
       Therefore, we have no difficulty in concluding that the court did not err in
ordering that pursuant to section 1370, the “treatment facility may involuntarily
administer antipsychotic medication to the defendant when and as prescribed by the
defendant’s treating psychiatrist.”
       Appellant, however, argues that the evidence before the court did not constitute
substantial evidence that “it is probable that serious harm to the physical or mental health
of the patient will result.” (§ 1370, subd. (a)(2)(B)(ii)(I).) Stressing the fact that the
reports do not employ the word “probable,” appellant argues that they merely suggest that
serious harm is “possible.” He is incorrect. Although Dr. Glezer did not specifically use
the term “probable” in her opinion letter to the court, she makes essentially this same
point. Her statement that appellant “has a history of self-injurious behaviors, which
places him at a higher risk of harming himself” demonstrates that in her opinion, it was
far more than a possibility—indeed a probability—that appellant was likely to harm
himself or others absent the administration of an antipsychotic drug.
       Moreover, Dr. Glezer’s observations and conclusions rebut appellant’s argument
that “[h]er report failed to address whether and how treatment with antipsychotic
medication would impact appellant’s risk of harm to himself or others.” We believe they
clearly do. Dr. Glezer stated that with the proper medication, “most individuals with
psychosis and mania experience significant improvement of their symptoms.” Given that
appellant’s symptoms include a heightened, and therefore, probable risk of harm to self
and others, the treatment of his symptoms would certainly address this probability.
Further, in his earlier and briefer response, Dr. Good described appellant’s self-harming




                                               9
behavior and his refusal to take medication5, which supplies further evidence of the
efficacy of involuntary treatment. Thus, Dr. Good stated, “Mr. Jones has a long
psychiatric history involving diagnoses of major mental illness, including Schizoaffective
disorder, Bipolar disorder, and Psychosis NOS. He has been hospitalized multiple times
all over the state. He often refuses to take medications. He has spent over a year at Napa
state hospital for competency restoration in late 2010-2012.” Dr. Good also noted that, in
February of 2013, appellant “was found cutting himself on his legs with a razor blade,
and placed in a safety cell, yelling uncontrollably, angry, delusional and was 5150’d to
SF General Hospital.” In sum, the observations and concerns of Drs. Good and Glezer
were directed at the issue posed by section 1370, subdivision (a)(2)(B)(ii)(I)—and the
only issue raised by appellant here—i.e., that “if the defendant’s mental disorder is not
treated with anti-psychotic medication, it is probable that serious harm to the physical or
mental health of the patient will result.” (Ibid.)
       Given that substantial evidence supported its order, we find no error.
                                    IV. DISPOSITION
       The order appealed from is affirmed.




       5
        The record also contained evidence, in the form of Dr. Kim’s 2010 report, that
appellant had a long history of mental health problems, as well as a failure to take the
medications necessary to address those problems.

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                                              _________________________
                                              Haerle, J.


We concur:


_________________________
Kline, P.J.


_________________________
Brick, J.*




      * Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.




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