    Filed 12/10/19




                          CERTIFIED FOR PARTIAL PUBLICATION*


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                    F078241
          Plaintiff and Respondent,
                                                          (Super. Ct. No. F18902563)
                     v.

RONNIE EARL HOWELL, SR.,                                          OPINION
          Defendant and Appellant.



                                        THE COURT
          APPEAL from an order of the Superior Court of Fresno County. Jonathan M.
Skiles, Judge.
          Conness Thompson, under appointment by the Court of Appeal, for Defendant and
Appellant.
          Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Kimberley A. Donohue and R. Todd Marshall, Deputy Attorneys General, for Plaintiff
and Respondent.
                                           -ooOoo-




*       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part I. of the Discussion.
                                    INTRODUCTION
       Appellant Ronnie Earl Howell, Sr., contends the trial court order authorizing the
involuntary administration of antipsychotic medication is not supported by substantial
evidence and must be reversed. In an issue of first impression, Howell also contends that
Senate Bill No. 1187 (2017–2018 Reg. Sess.) (Sen. Bill 1187) is retroactive and the
maximum term of commitment for restoration of his competency should be reduced from
three to two years.
       We conclude substantial evidence supports the order for involuntary
administration of antipsychotic medication. In the published portion of this opinion, we
also conclude that Sen. Bill 1187 is not retroactive.
                      FACTUAL AND PROCEDURAL SUMMARY
       The Fresno County District Attorney filed a complaint in case No. F18902563
(case No. 563) on April 17, 2018. The complaint charged Howell in count 1 with felony
driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)); in count 2 with
driving with an elevated blood alcohol level (Veh. Code, § 23152, subd. (b)); and in
count 3 with hit and run driving (Veh. Code, § 20002, subd. (a)). Vehicle Code
section 23550.5, subdivision (a) enhancements, alleging a prior Vehicle Code
section 23152, subdivision (b) conviction, were alleged as to counts 1 and 2. It also was
alleged that Howell had suffered numerous prior felony convictions and had served prior
prison terms.
       On July 10, 2018, the trial court appointed the public defender to represent
Howell. Howell pled not guilty to the charges and denied all allegations and
enhancements. The public defender declared a conflict and on July 13, 2018, the public
defender was relieved as counsel and alternate counsel was appointed to represent
Howell.



                                              2
       Howell was the defendant in another criminal proceeding in case No. F18902159
(case No. 159) where a doubt as to Howell’s competency to stand trial had been declared,
pursuant to Penal Code1 section 1368.2 Defense counsel declared doubt as to Howell’s
competency to stand trial in the current case and the trial court ordered criminal
proceedings suspended and instituted section 1368 proceedings.
       On July 18, 2018, the trial court appointed Howard Terrell, M.D., to examine
Howell and assess his competency to stand trial. The competency report was due
August 10, with a hearing on competency scheduled for August 15, 2018. Howell filed a
handwritten objection to the section 1368 proceeding.
       Terrell submitted his report on August 6, 2018. Terrell recommended the trial
court find Howell incompetent to stand trial. During the examination, Howell appeared
to be responding to internal stimuli, indicated he was having problems with his memory,
and initially claimed to be 30 years younger than his actual age.
       Howell reported that he has been under treatment for schizophrenia, anxiety, and
“[d]eep depression.” He had been hospitalized twice, for about nine months each time,
for psychiatric reasons. Howell reported suffering visual hallucinations off-and-on for
the past three years and reported auditory hallucinations as well. Howell had been
prescribed antipsychotic medication in the past but complained it had been discontinued
and “he [has] been feeling much worse ever since.”
       Howell reported “episodes of rapid thoughts and speech with the ability to go up
to two days without any need for sleep.” He denied ever using “street drugs” but
admitted to consuming up to six cans of beer, 16 ounces each, per day. When asked



1      All statutory references are to the Penal Code unless otherwise indicated.
2     Howell is the defendant in two other appeals pending before this court in case
Nos. F075026 and F078070.

                                             3
about any history of paranoia, Howell paused and appeared to be responding to internal
stimuli.
       When asked about the charges against him, Howell erroneously believed he was
charged with theft. Terrell questioned Howell about his understanding of the actual
charges pending against him. Howell told Terrell “in a paranoid manner that he does not
trust his attorney.” Howell believed attorneys in the past had “plotted and conspired
against him.”
       Terrell described Howell as someone “who showed frequent evidence of response
to internal stimuli as well as paranoia. Impressed me as acutely psychotic.” Howell’s
“[a]ssociations fluctuated from coherent to loose and tangential with a paranoid theme.”
His moods “fluctuated from euthymic to upset and paranoid.” Terrell found Howell’s
reality contact to be poor and memory to be poor to fair.
       Terrell’s professional opinion was that Howell “suffers from a psychotic mental
disorder, which renders him unable to assist his attorney in a rational manner.” Howell
needed antipsychotic medication if he was to be restored to mental competency. The
evaluation noted that Howell “did not appear to be imminently suicidal or homicidal.”
Terrell expressed concern, however, about Howell’s “irrational and psychotic state of
mind as well as his long history of felonious behavior.” Terrell opined that Howell “will
be at substantial risk of harming himself or others in the foreseeable future” if not taking
antipsychotic medication. Terrell also opined that Howell was not “mentally competent
to give informed consent.” Terrell recommended the trial court issue an order
authorizing the administration of antipsychotic medication “with or without consent.”
       Terrell was “concerned about the possibility of early dementia.” Terrell stated, “If
it is determined that he has dementia, antipsychotic medication can increase the rate of
sudden death. A wise psychiatrist would provide antipsychotic medication only if it is
believed that the potential risks of antipsychotic medication are substantially outweighed

                                              4
by the potential benefits.” Terrell recommended that Howell undergo a “dementia
workup by a qualified neurologist.”
       At the August 15, 2018, hearing to consider the evaluation and determine
competency, both the prosecution and the defense submitted on the report. The trial court
found Howell was not competent and ordered criminal proceedings continue to be
suspended. The parties agreed to follow the placement order that had been filed in case
No. 159, where Howell had already been committed to the state hospital. Howell was
ordered committed to the state hospital until competency was restored. The placement
evaluation in case No. 159 provided that antipsychotic medication be administered
involuntarily if necessary, as authorized by court order.
       On August 21, 2018, an order was filed in the current case committing Howell to
the state hospital. The order stated that Howell had been found mentally incompetent
pursuant to section 1370. The order provided that the state hospital was to file a written
report within 90 days setting forth an opinion concerning the mental competency of
Howell and to file such reports every six months thereafter. In addition, the order
reiterated the stipulation of the parties adopting the commitment order from case No. 159
and stated the maximum term of commitment exceeds three years. The order further
provided:

              “The Court authorizes the treatment facility to involuntarily
       administer antipsychotic medication to the defendant when and as
       prescribed by the defendant’s treating psychiatrist for the following reason:
       The defendant lacks the 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.”
       Howell filed a notice of appeal on October 3, 2018. He filed a second notice of
appeal on October 9, 2018.


                                             5
                                       DISCUSSION
       Howell raises two issues in this appeal. He contends the trial court order
authorizing the involuntary administration of antipsychotic medication is not supported
by substantial evidence and must be reversed. In an issue of first impression, Howell also
contends that Sen. Bill 1187 is retroactive and the maximum term of commitment for
restoration of his competency should be reduced from three to two years.
       I.     Substantial Evidence Supports the Order*
       Standard of Review
       A competent adult has a common law and constitutional right to refuse medical
treatment, including the administration of antipsychotic drugs. (Riggins v. Nevada (1992)
504 U.S. 127, 143; In re Qawi (2004) 32 Cal.4th 1, 14.) However, a criminal defendant
may forcibly be treated with antipsychotic medication if: (1) important governmental
interests are at stake; (2) 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. (Sell v. United States (2003) 539 U.S. 166, 180–183; People v.
O'Dell (2005) 126 Cal.App.4th 562, 569.)
       The trial court must conduct a hearing and may issue an order authorizing
involuntary medication be administered if five factors are present: (1) the defendant is
charged with a serious crime; (2) involuntary administration of antipsychotic medication
is likely to render the defendant competent to stand trial; (3) the medication is unlikely to
have side effects that interfere with the defendant’s ability to understand the nature of the
criminal proceedings or assist counsel; (4) less intrusive treatments are unlikely to have




*      See footnote, ante, page 1.

                                              6
the same result; and (5) antipsychotic medication is in the defendant’s best medical
interest. (Carter v. Superior Court (2006) 141 Cal.App.4th 992, 1001.)
       “We review an order authorizing involuntary administration of antipsychotic
medication for substantial evidence.” (People v. Fisher (2009) 172 Cal.App.4th 1006,
1016.) Substantial evidence is evidence of legal significance, reasonable in nature,
credible, and of solid value. (People v. Maury (2003) 30 Cal.4th 342, 396.) We draw all
reasonable inferences in support of the trial court’s findings. (People v. Clark (2000) 82
Cal.App.4th 1072, 1082.) We review the record in the light most favorable to the order.
(Ibid.) We do not reweigh the evidence or decide the credibility of witnesses. (Id. at
pp. 1082–1083.)
       Analysis
       Here, Howell acknowledged that he has been under treatment for schizophrenia,
anxiety, and depression. He reported auditory and visual hallucinations. Howell
apparently was aware of his situation and acknowledged the existence of his condition.
Howell also complained that his antipsychotic medication had been discontinued, and
that he felt “much worse” since then.
       However, Howell also presented as acutely psychotic, paranoid, and frequently
responding to internal stimuli. His thought processes fluctuated from coherent to loose
and tangential. Terrell found Howell to exhibit poor judgment and insight. He had an
irrational and psychotic state of mind. Terrell concluded that Howell was not competent
to give informed consent for psychotropic medication.
       California Rules of Court,3 rule 4.130, provides that when the trial court appoints
an expert to examine a defendant and determine mental competency to stand trial, the
expert’s report is to be submitted to the trial court, counsel for the defendant, and the
prosecution. (Rule 4.130(d)(2).) The expert’s report must include a statement on

3      References to rules are to the California Rules of Court.

                                              7
“whether the defendant has capacity to make decisions regarding antipsychotic or other
medication.” (Rule 4.130(d)(2)(E).)
       The parties submitted the matter on the basis of Terrell’s report. Terrell’s report
addressed each of the five factors set forth in section 1370, subdivision (a)(2)(B)(i)(III).
The report noted that Howell had been charged with a felony offense, opined that Howell
could not be restored to competency without the use of antipsychotic medication, and
stated that Howell was not mentally competent to give consent for psychotropic
medication. The report also stated it was “very unlikely” use of antipsychotic medication
would worsen Howell’s mental condition or his ability to assist defense counsel in a
rational manner. Without the administration of antipsychotic medication, Terrell opined
that Howell was at substantial risk of harming himself or others and that “less-invasive
intervention” would not be adequate to restore mental competency.
       A single witness’s testimony is sufficient to uphold a finding. (People v. Barnwell
(2007) 41 Cal.4th 1038, 1052; People v. Young (2005) 34 Cal.4th 1149, 1181.) The
“centrality of expert reports” to the trial court’s determination of competency “is
demonstrated by the rule that a formal adversary hearing on the issue of competence is
not required if the prosecutor and defense counsel stipulate that the competency
determination be made by the court based on the written reports of the court-appointed
experts.” (In re John Z. (2014) 223 Cal.App.4th 1046, 1058, citing People v. Weaver
(2001) 26 Cal.4th 876, 903–905.) Terrell’s report supports the trial court’s order for
involuntary administration of psychotropic medication.
       Furthermore, the parties stipulated to adopting the commitment order that was
used in case No. 159. The evaluation provided that antipsychotic medication be
administered involuntarily if necessary. Presumably, Howell’s commitment in case
No. 159 provided for involuntary administration of antipsychotic medication.



                                              8
       Terrell’s report supports the trial court’s order that Howell be involuntarily
medicated, if necessary, and constitutes substantial evidence supporting the trial court’s
order. (People v. Fisher, supra, 172 Cal.App.4th at p. 1016.)
       II.    Senate Bill No. 1187
       On September 30, 2018, the Governor approved Sen. Bill 1187, which went into
effect on January 1, 2019. This bill amends section 1370 to reduce the maximum term of
commitment for competency restoration to two years instead of three. (Stats. 2018,
ch. 1008, § 2.)
       On February 13, 2019, appellate counsel directed a letter to the trial court
notifying the court that Sen. Bill 1187 provides that the maximum term of commitment
for restoration to competency is two years. Appellate counsel requested that the superior
court modify the commitment order to reflect a maximum commitment period of
two years. The trial court did not act on the letter.
       Howell contends that Sen. Bill 1187 is retroactive and the maximum term of
commitment for restoration of his competency should be reduced from three to two years.
       Analysis
       Section 3 states that Penal Code provisions do not apply retroactively unless they
specifically so state. In the case of In re Estrada (1965) 63 Cal.2d 740, 747–748
(Estrada), the Supreme Court held that, absent evidence to the contrary, the Legislature
intended amendments to statutes that reduce the punishment for a particular crime to
apply to all defendants whose judgments were not yet final on the operative date of the
amendment. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 306–308; People v.
Brown (2012) 54 Cal.4th 314, 323.)
       Howell contends Sen. Bill 1187 applies retroactively to him, citing Estrada. The
rule of Estrada does not apply to Howell’s case because “competency proceedings are
civil in nature and collateral to the determination of defendant’s guilt and punishment.”

                                              9
(Centeno v. Superior Court (2004) 117 Cal.App.4th 30, 43.) Statutes addressing mental
competency proceedings are curative and protective measures aimed at restoring
competency, not punishment for commission of a crime. (Ibid.)
       Howell also cites legislative history as support for his contention that Sen. Bill
No. 1187 applies retroactively. Howell cites to language in the legislative history where
the author of the legislation states the three-year period for restoration of competency was
no longer “reasonable” because “medication-treatment of severely mentally ill
individuals has advanced, competency restoration treatment programs have been shown
to have consistently high success rates, and we have learned that committed persons
attain competency in time periods far shorter than what was considered ‘reasonable’ in
1974.” (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 1187.) The author also
claimed that “the vast majority (80–90%) becomes [sic] trial-competent within
six months of starting treatment, and nearly all who attain competency do so within a
year.” (Ibid.)
       However, had the Legislature intended Sen. Bill 1187 to have retroactive
application, it could have included a specific provision to so provide. (Evangelatos v.
Superior Court (1988) 44 Cal.3d 1188, 1212. Moreover, even though a statute may be
applied retroactively if there is a clear and compelling indication the Legislature intended
such a result (People v. Alford (2007) 42 Cal.4th 749, 754), no such clear and compelling
indication is present with SB No. 1187.
       Crediting the author’s statements, 80 to 90 percent of those found mentally
incompetent to stand trial would be unaffected by the change in law because competency
would be restored within six months of treatment, and nearly all who attain competency
do so within one year of starting treatment. For those who have not attained competency
in this period of time, we see no indication in the legislative history that the Legislature
intended to usurp the conclusions of the medical professionals and their prescribed

                                              10
courses of treatment for individuals under their care by potentially cutting short
competency restoration treatment. Medical professionals may have prescribed a different
course of treatment if the available treatment period was two, rather than three, years.
Absent a clear intent from legislative history that Sen. Bill 1187 applies retroactively, the
“default rule” that no part of a statute is retroactive applies. (§ 3; People v. Brown, supra,
54 Cal.4th at p. 319.)
       Consequently, we conclude Sen. Bill 1187 does not apply retroactively.
                                      DISPOSITION
       The order filed on August 21, 2018, committing Howell to the state hospital until
mental competency is restored is affirmed.


                                                                  _____________________
                                                                            FRANSON, J.
WE CONCUR:


 _____________________
LEVY, Acting P.J.


 _____________________
POOCHIGIAN, J.




                                             11
