Filed 7/30/14 P. v. Griffith CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039951
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1242445)

         v.

HOWARD EUGENE GRIFFITH,

         Defendant and Appellant.




                                           I.        INTRODUCTION
         Defendant Howard Eugene Griffith was found incompetent to stand trial,
committed to Napa State Hospital, and ordered to be involuntarily treated with
antipsychotic medication. Defendant appeals from the order authorizing involuntary
antipsychotic medication. He contends the order is not supported by substantial evidence
that without antipsychotic medication, “it is probable that serious harm to the physical or
mental health of [defendant] will result.” (Pen. Code, 1370, subd. (a)(2)(B)(i)(I).)1 We
find substantial evidence supports that finding and we will therefore affirm the order
authorizing involuntary antipsychotic medication.




         1
             All further statutory references are to the Penal Code unless otherwise indicated.
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                                   II.   BACKGROUND
       A.     Criminal Offense2
       On the morning of October 7, 2012, defendant stabbed Nanito Osei with a steak
knife. When police arrived, Osei was lying on the ground, bleeding. Osei pointed to
defendant, who was sitting nearby, and identified defendant as the perpetrator. Police
recovered a knife from a trash can and took defendant into custody.
       Defendant told the police he had met Osei earlier that day. Osei wanted to take a
hat from defendant’s head, and they argued. Osei tried to punch defendant. Defendant
stabbed Osei, then threw the knife in the trash can. Defendant told police he was a
transient who had been homeless for several years. Defendant also said he was an
undercover secret service agent.
       B.     Charges and Competency Proceedings
       By information filed on November 8, 2012, defendant was charged with assault
with a deadly weapon.3 (§ 245, subd. (a)(1).) On January 7, 2013, the trial court
declared a doubt about defendant’s competency and suspended the criminal proceedings.
(See § 1368.) The court appointed two psychologists to evaluate defendant’s
competency: Dr. Roger Karlsson and Dr. Ashley Cohen.
       Dr. Cohen interviewed defendant on January 14, 2013. Defendant had difficulty
focusing his attention on the interview. “[H]e was preoccupied with attempting to
explain the relationship among several ‘secret government spy agencies,’ one or more
with which he is affiliated.” Defendant was unable to restate the purpose of the interview
after Dr. Cohen explained it to him. Defendant was unable to recall his exact age, which


       2
         Our summary of the facts underlying the criminal charge is based on the
transcript of the preliminary hearing.
       3
        On December 28, 2012, the District Attorney moved to amend the information to
add great bodily injury allegations. (§§ 1203, subd. (e)(3), 12022.7, subd. (a).) It is not
clear whether the motion was granted.
                                             2
was 65. When anxious, defendant would pull the back of his shirt over his head, stating
that he needed to protect the back of his neck and head. He was “hyperalert,” and his
“grooming and hygiene were marginal.” He often became distracted by his own thoughts
while speaking. He was “obsessed with at least four topics: he is the employee of one or
more secret spy agencies, he is a world famous boxing promoter, he is cousins with
President Obama’s two daughters, and he is being represented by a famous criminal
defense attorney from Chicago (sent to represent him by the President, because of his
relationship with the daughters).” Regarding the present charges and legal proceedings,
defendant reported stabbing the victim but claimed the victim was one of three men who
had jumped him and that two CIA agents had killed the other two attackers. Defendant
was not worried about the criminal charges because, he believed, the CIA agents and 145
other people would testify on his behalf.
       Dr. Cohen opined that defendant was not competent to stand trial. She described
him as “grossly delusional” and believed that his “cognitive abilities have degraded to the
extent that he is unable to proceed with trial in a rational manner, and is unable to engage
in normal, productive interactions with his attorney.” Dr. Cohen did not know how long
defendant had suffered from the same symptoms and did not know if defendant was on
antipsychotic medication, but she believed it could be “worthwhile” to administer
medication to defendant. Dr. Cohen believed that upon release from custody, defendant
should be evaluated for a possible conservatorship. She explained, “given his present
state, he is highly unlikely to be able to provide even minimally for his basic food,
clothing, shelter, and safety needs.”
       Dr. Karlsson attempted to evaluate defendant on March 6, 2013. He administered
two tests, but during his administration of a third test, defendant refused to continue. Dr.
Karlsson could not assess defendant for trial competency based on the partial evaluation.
       On March 13, 2013, the trial court appointed psychologist Andrea Shelley to
perform another competency evaluation. Dr. Shelley interviewed defendant on March
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18, 2013. She reported that defendant had been “psychiatrically hospitalized for the first
time for three months” when he was 23 years old. He had taken medications but could
not recall which ones. He had worked as a janitor and a roofer until age 36, when he was
diagnosed with schizophrenia and began receiving social security disability income. He
did not remember the last time he had taken antipsychotic medication and had not
received any mental health services for “quite some time.”
       Defendant reported being depressed, having no appetite, and experiencing
insomnia. He denied having any auditory or visual hallucinations, but he “expressed
several delusions[,] specifically that he was an undercover secret service agent.” He
repeated his delusions about being related to President Obama, having Chicago attorneys
to defend him, and having witnesses from the CIA. Defendant had “a fair factual
knowledge of court processes and procedures” but became agitated when discussing
“different pleas.”
       Dr. Shelley believed that because of his focus on the delusions and his agitation,
defendant would not be able to “rationally work with his attorney and assist in his
defense.” Thus, Dr. Shelley opined that defendant was not competent to stand trial. She
also opined that “psychotropic medication could be helpful in restoring him to
competency,” but that “it might be necessary to involuntarily medicate him” in order to
do so. Dr. Shelley did not believe there was anything “to indicate that he is a danger to
himself” but noted that his “impulse control may be impaired due to his psychosis and
paranoia.”
       On April 17, 2013, the trial court found defendant incompetent to stand trial, based
on Dr. Cohen’s and Dr. Shelley’s reports. The court issued an order for an evaluation of
treatment options and appointed psychiatrist Dr. John Greene to evaluate defendant for a
possible order of involuntary antipsychotic medication. On April 26, 2013, the South
Bay Conditional Release Program recommended that defendant be committed to the
Department of State Hospitals for placement.
                                             4
       C.     Involuntary Medication Proceedings
       Dr. Greene evaluated defendant on April 29, 2013. He opined that defendant’s
“mental disorder of Psychotic Disorder Not Otherwise Specified[] requires medical
treatment with antipsychotic medication.” He further opined that without antipsychotic
medication, defendant’s “mental health would be substantially compromised, and that
eventually, serious harm will come to him regarding his mental health.” Dr. Greene
specified that defendant’s delusions and lack of insight into his mental illness would
likely exacerbate and continue to impair his functioning. Defendant was not willing to
take antipsychotic medication voluntarily, and Dr. Greene believed defendant lacked the
capacity to make that decision. Dr. Greene did not believe that any less intrusive
treatments would have substantially the same results. Dr. Greene also did not believe that
defendant was currently a danger to himself or others.
       On July 11, 2013, the court held a hearing on the issue of whether to issue an order
for involuntary antipsychotic medication. Dr. Greene reiterated his opinion that
defendant’s mental disorder required treatment with antipsychotic medication. Dr.
Greene explained his opinion was based on the evaluation, defendant’s denial about his
mental illness, and defendant’s medical records, which suggested defendant had a long
history of psychotic illness.
       Defendant was initially “appropriate” during the evaluation, but he became
“argumentative and potentially aggressive” when the topic of the criminal proceeding
was brought up. Dr. Greene was concerned that defendant would harm or threaten him.
Dr. Greene believed that without antipsychotic medication, defendant would become
“gravely disabled because of his mental illness and he could possibly be harmful to others
if he is provoked.”
       At the end of the hearing, the trial court asked Dr. Greene to explain why he
believed defendant’s “mental health would be substantially compromised and that
eventually serious harm would come to him regarding his mental health if he’s not treated
                                             5
with antipsychotic medication.” Dr. Greene referred to defendant’s “substantial
delusions and substantial impairment in his ability to assess himself.” Dr. Greene noted
that defendant was presently “in a structured environment, being incarcerated, so he’s
given food and clothing and shelter,” but that if he was not, “he would not be able to
interact with others appropriately to provide for food, shelter and clothing for himself.”
       Dr. Greene also believed that defendant was “at a high risk of harming somebody
else,” due to his “inability to regulate [his] emotions.” The trial court noted that Dr.
Greene had expressed the opposite opinion in his written evaluation. Dr. Greene
explained that defendant’s delusions were not related to hurting others, but that “if he
were pushed, then he could become dangerous.”
       When asked about alternative treatments, Dr. Greene stated, “He’s not going to get
better without medication. He’s going to stay exactly like he is, and he will always be a
threat because the alternative treatments are not going to help with delusions and
hallucinations.”
       The trial court found “by clear and convincing evidence that [defendant] does not
have the capacity to consent to medications.” The court found there was “some question”
as to whether defendant would qualify for involuntary medication under section 1370,
subdivision (a)(2)(B)(i)(II), but made a finding under section 1370, subdivision
(a)(B)(i)(I) “that he does lack the capacity.” The court ordered defendant transported to
Napa State Hospital. The court’s written order specifies that the involuntary medication
order is “pursuant to [Penal Code] § 1370(a)(2)(B)(i)(I).”

                                   III.   DISCUSSION
       A.     Relevant Statutory Provisions
       Once a defendant has been found incompetent, “the trial or judgment shall be
suspended until the person becomes mentally competent.” (§ 1370, subd. (a)(1)(B).) The
court generally must “order that the mentally incompetent defendant be delivered by the


                                              6
sheriff to a state hospital . . . or to any other available public or private treatment facility,”
for care and treatment. (Id., subd. (a)(1)(B)(i).) A mentally incompetent defendant may
also be placed on outpatient status. (Ibid.)
       Prior to making a placement order, the trial court must order a placement
evaluation (§ 1370, subd. (a)(2)(A)) and must “hear and determine whether the defendant
lacks capacity to make decisions regarding the administration of antipsychotic
medication” (id., subd. (a)(2)(B)). The court may order involuntary administration of
medication upon one of three alternative findings, as specified in section 1370,
subdivision (a)(2)(B)(i):
       “(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.
       “(II) The 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.
Demonstrated danger may be based on an assessment of the defendant’s present mental
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condition, including a consideration of past behavior of the defendant within six years
prior to the time the defendant last attempted to inflict, inflicted, or threatened to inflict
substantial physical harm on another, and other relevant evidence.
       “(III) The [P]eople 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.”4
       B.     Analysis
       “We review a trial court’s order authorizing a state hospital to involuntarily
administer antipsychotic medication to defendant for substantial evidence. [Citation.]”
(People v. O’Dell (2005) 126 Cal.App.4th 562, 570.) Substantial evidence is “evidence
which is reasonable, credible, and of solid value.” (People v. Johnson (1980) 26 Cal.3d
557, 578.)
       Defendant impliedly concedes there was substantial evidence to support the first
two required findings under section 1370, subdivision (a)(2)(B)(i)(I): that defendant
lacked “capacity to make decisions regarding antipsychotic medication,” and that
defendant’s mental disorder “requires medical treatment with antipsychotic medication.”

       4
         The findings required for an order issued pursuant to section 1370, subdivision
(a)(2)(B)(i)(III) are derived from Sell v. United States (2003) 539 U.S. 166 (Sell).
(People v. Christiana (2010) 190 Cal.App.4th 1040, 1049.) “The Sell factors control
only when the sole purpose of the involuntary medication is to render the defendant
competent to stand trial [under section 1370, subdivision (a)(2)(B)(i)(III)]; 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. [Citation.]” (Ibid., fn. 4.)
                                               8
          Defendant contends there was no substantial evidence to support the third required
finding under section 1370, subdivision (a)(2)(B)(i)(I): 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 [defendant] will result.”
          The parties cite no published California case discussing the type of evidence that
can support an order for involuntary antipsychotic medication issued pursuant to section
1370, subdivision (a)(2)(B)(i)(I). As noted above, the statute specifies that a finding of
probable serious harm to 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.” (§ 1370, subd. (a)(2)(B)(i)(I).) The statute further
specifies, “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.”
(Ibid.)
          The evidence in this case supports a finding that “defendant is presently suffering
adverse effects to his or her physical or mental health” and thus supports a finding 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.”
(§ 1370, subd. (a)(2)(B)(i)(I).) The parties appear to agree that the “presently suffering
adverse effects” standard of section 1370, subdivision (a)(2)(B)(i)(I) is satisfied when the
defendant is exhibiting symptoms of a mental disorder. In this case, the evidence
overwhelmingly established that defendant was suffering from serious delusions that
were caused by his mental disorder. The evidence thus showed that defendant was
exhibiting symptoms of a mental disorder and, therefore, that he was suffering “adverse
effects” to his mental health. (Ibid.; cf. People v. Wright (2005) 35 Cal.4th 964, 970
[expert testimony that delusions are psychotic symptoms]; People v. Pace (1994)
27 Cal.App.4th 795, 798 [expert testimony that delusions were a symptom of defendant’s
                                                9
severe mental disorder].) In his written report, Dr. Greene opined that without
antipsychotic medication, defendant’s “mental health would be substantially
compromised, and that eventually, serious harm will come to him regarding his mental
health.” Dr. Greene did not specify the type of “serious harm” that would occur, but he
did state that defendant’s delusions and lack of insight into his mental illness would likely
exacerbate and continue to impair his functioning. The earlier psychological evaluations
further established that defendant’s delusions were harmful to his mental health in that
they caused serious anxiety, an inability to focus, and agitation.
       Defendant contrasts the instant case with United States v. Loughner (9th Cir.
2012) 672 F.3d 731 (Loughner), where the Ninth Circuit held that an involuntary
medication order was supported by substantial evidence of the defendant’s
dangerousnesss to himself. In Loughner, the defendant had been diagnosed with
schizophrenia and there was evidence that his mental health had deteriorated after his
antipsychotic medication was discontinued. (Id. at pp. 736, 739.) Specifically, he had
begun expressing “ ‘feelings of depression and hopelessness’ ” as well as suicidal
thoughts. (Id. at p. 757.) The defendant had also exhibited an erratic sleep schedule, had
lost weight due to poor food intake, and “would pace or spin in circles for hours without
interruption.” (Ibid.) Following resumption of his involuntary medication, the
defendant’s agitation had decreased, his sleep had improved, and his communication with
staff was progressing. The Ninth Circuit found substantial evidence to support the
finding that the defendant was “a danger to himself and that antipsychotic medication
was in his best interest.” (Id. at p. 758.)
       Defendant acknowledges that “Loughner does not require potential suicide for an
order for involuntary medication,” but argues that the case “shows the type and quality of
evidence that is required to forcibly medicate a patient when the claim is that failure to do
so will result in mental or physical harm to the person.” As the Attorney General points
out, however, Loughner is of limited assistance because it did not involve a determination
                                              10
pursuant to section 1370, subdivision (a)(2)(B)(i)(I). But in any event, the evidence in
this case is comparable to that in Loughner. Here, defendant exhibited delusions, which
were comparable to the Loughner defendant’s expressed feelings of depression and
suicidal thoughts. Defendant also exhibited agitation and had a difficult time
communicating with evaluators because of his mental illness, similar to the Loughner
defendant. The record here contains substantial evidence that defendant was “presently
suffering adverse effects” to his mental health (§ 1370, subd. (a)(2)(B)(i)(I)), which
supports the trial court’s decision to order involuntary antipsychotic medication.




                                             11
                                 IV.    DISPOSITION
      The July 11, 2013 order authorizing the administration of involuntary
antipsychotic medication is affirmed.




                                  ___________________________________________
                                  BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MÁRQUEZ, J.




__________________________
GROVER, J.




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