Filed 12/19/13 P. v. Velez CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                   2d Crim. No. B250633
                                                                            (Super. Ct. No. F488055)
    Plaintiff and Respondent,                                               (San Luis Obispo County)

v.

LUIS VELEZ,

    Defendant and Appellant.



                   Luis Velez appeals from the judgment entered after the trial court
determined that he was a mentally disordered offender (MDO; Pen. Code, § 2962.)1
Appellant claims that he has a constitutional and statutory right to refuse medication
which trumps the MDO requirement that a prisoner voluntarily comply with his or her
treatment plan. (§ 2962, subd. (a)(3).) We affirm. Appellant denies that he has a mental
illness and has refused to take his prescribed medication which supports the finding that
the severe mental disorder cannot be kept in remission without treatment. ((Ibid.; In re
Qawi (2004) 32 Cal.4th 1, 24; People v. Beeson (2002) 99 Cal.App.4th. 1393, 1399.)
                   Appellant suffers from a severe mental disorder (paranoid schizophrenia),
manifested by auditory and tactile hallucinations, and delusional thinking. In 2008 he


1
    All statutory references are to the Penal Code.
was convicted of assault with a deadly weapon and battery on a peace officer and
sentenced to state prison. On March 28, 2013, the Board of Parole Hearings (BPH)
certified that appellant was an MDO. Appellant filed a superior court petition
challenging the MDO determination and waived jury trial. (§ 2966, subd. (b).)
              Doctor Brandi Mathews, a psychologist at Atascadero State Hospital
(ASH), testified that appellant met all the MDO criteria2 and the mental disorder could
not be kept in remission without treatment. Appellant refused to attend most of his
treatment groups and in June 2012 refused to take medication prescribed by his treating
psychiatrist. Doctor Matthews testified that appellant was asymptomatic at the time of
the BPH hearing but would suffer a relapse without treatment. The hospital did not
obtain a Qawi order to involuntarily medicate appellant because he was not violent and
made no threats.
                       Voluntary Compliance with Treatment Plan
              Appellant argues that he has a statutory and constitutional right to refuse
prescribed antipsychotic medication. (Welf. & Inst. Code, § 5325.1, subd. (c); Sell v.
United States (2003) 539 U.S. 166, 178-179 [156 L.Ed.2d 197, 210-211]; Washington v.
Harper (1990) 494 U.S. 210, 221 [108 L.Ed.2d. 178, 197-198]; In re Qawi, supra, 32
Cal.4th at pp. 14-16.) A court may order an MDO to take antipsychotic medication in a
non-emergency situation only if the court "makes one of two findings: (1) that the MDO
is incompetent or incapable of making decisions about his medical treatment; or (2) that
the MDO is dangerous within the meaning of Welfare and Institutions Code section
5300." (Id., at pp. 9-10.) A similar right is afforded mentally ill persons incarcerated in


2
  The six criteria for an MDO commitment are: the prisoner (1) has a severe mental
disorder; (2) used force or violence in committing the underlying offense; (3) had a
mental disorder that caused or was an aggravating factor in the commission of the
underlying offense; (4) the disorder is not in remission or capable of being kept in
remission without treatment; (5) the prisoner was treated for the disorder for at least 90
days in the year prior to his parole or release; and (6) the prisoner poses a serious danger
of physical harm to others by reason of the disorder. (§ 2962, subd. (d)(1); People v.
Clark (2000) 82 Cal.App.4th 1072, 1075-1076.)
                                              2
state prison. (§ 2602; Keyhea v. Rushen (1986) 178 Cal.App.3d 526, 540-541; In re
Qawi, supra, 32 Cal.4th at p. 21.)
              Appellant claims that Qawi exempts him from the MDO requirement that
he voluntarily participate in his treatment plan. He frames it as a "substantial evidence"
issue but the facts are undisputed. Appellant went off his medication in June 2012.
Doctor Matthews opined that appellant posed a substantial risk of harm to others because
the symptoms will reappear and appellant will "present" as he did when he committed the
prior assaults.3 Appellant was not taking his medications and paranoid when he
committed the assaults in 2006 and 2007. The evidence further shows that appellant
performed poorly on supervised release and had a history of not taking his medication
and becoming violent when symptomatic. Doctor Matthews noted that appellant refused
his medication in June 2012 and by October 2012 "was quite symptomatic. . . ."
              The evidence clearly shows appellant poses a substantial risk of harm to
others due to a mental disorder that cannot be kept in remission without treatment. (§
2962, subd. (a)(3).) Appellant argues that he has a due process to refuse prescribed
medication. That may be so but the MDO Act requires voluntary compliance with the
entire "treatment plan," which in appellant's case includes medication and group therapy
sessions. (Ibid.) The state has a compelling interest in protecting the public and
providing severely mentally disorder prisoners an appropriate level of mental health
treatment. (§ 2960; People v. Allen (2007) 42 Cal.4th 91, 97-98.) As stated in In re
Qawi, "[A] finding of recent dangerousness is not required. The 'cannot be kept in
remission without treatment' standard can . . . be found when a person 'has not voluntarily

3
 In the December 2006 assault, appellant became enraged when his boyfriend asked him
not to leave the furnace on and the front door open. Appellant struck the victim more
than 50 times in the head, fracturing the victim's eye socket and inflicting multiple facial
bruises. Appellant had a "crazed" look and told the police "I have my own government
to prove." With respect to the June 2007 assault, appellant became agitated when
moved to a jail cell. Appellant assumed a fighting stance with clenched fists and kicked
one officer in the stomach, struck another officer in the face, and kicked a third officer in
the knee.

                                              3
followed the treatment plan' during the year prior to the commitment or recommitment
proceeding. [Citation.]" (In re Qawi, supra, 32 Cal.4th at p. 24.)
             Appellant denies that he has a mental illness and denies that he needs
medication for his mental disorder. It is a telling MDO factor. (§ 2962, subd. (a)(3).) "A
reasonable person, whose mental disorder can be kept in remission with treatment, must,
at minimum, acknowledge if possible the seriousness of his mental illness and cooperate
in all mandatory components of his treatment plan." (People v. Beeson, supra, 99
Cal.App.4th at p. 1399.) Qawi does not empower appellant to do an end run around the
MDO Act.
             The judgment is affirmed.
             NOT TO BE PUBLISHED.



                                         YEGAN, J.

We concur:


             GILBERT, P.J.


             PERREN, J.




                                            4
                                  Rita Federman, Judge

                       Superior Court County of San Luis Obispo

                            ______________________________


             Gerald J. Miller, under appointment by the Court of Appeal, for Defendant
and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Ertic J. Kohm, Deputy Attorney General, for
Plaintiff and Respondent.




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