Filed 4/28/14 P. v. Fowler CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058364

v.                                                                       (Super.Ct.No. RIF1200809)

CURTISHA SHANAY FOWLER,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Larrie R. Brainard, Judge.

(Retired judge of the San Diego Super. Ct., assigned by the Chief Justice pursuant to art

VI, § 6 of the Cal. Const.) Affirmed.

         Christopher Blake, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marissa

Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.




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          Defendant Curtisha Fowler appeals from the trial court’s order authorizing her to

be treated involuntarily with antipsychotic medications under Penal Code Section 1370.

Although defendant argues the order fails to meet each of the four factors set forth in Sell

v. United States (2003) 539 U.S. 166 (Sell), the trial court was clearly not required to base

its order on these factors. Given that this is defendant’s sole basis for challenging the

order, we affirm.

                                     FACTS AND PROCEDURE

First Declaration of Mental Incompetency and Involuntary Medication Order

          On January 5, 2012, the People filed a felony complaint charging defendant with

mayhem (Pen. Code, § 203) and assault by means likely to cause great bodily injury

(§ 245).1 Regarding the assault charge, the People alleged defendant personally inflicted

great bodily injury (§ 12022.7, subd. (a) and 1192.7, subd. (c)(8)). These charges also led

to a probation violation petition. The mayhem and assault charges stem from a

confrontation with defendant’s cell mate in which defendant bit off part of her cell mate’s

finger.

          Also on that date, the trial court declared doubt as to defendant’s mental

competence, suspended criminal proceedings and appointed two doctors to examine her.

          On February 14, 2012, the trial court found defendant mentally incompetent to

stand trial. On March 7, 2012, the court committed defendant to Patton State Hospital

(Patton) for a maximum of three years.


          1   All section references are to the Penal Code unless otherwise indicated.


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      On June 14, 2012, Patton filed a petition to authorize the administration of

involuntary medication pursuant to section 1370, subd. (a)(2)(C).

      On November 2012, the hospital filed a certificate of mental competence. On

December 7, 2012, the court found defendant’s mental competence had been restored and

reinstated criminal proceedings.

Second Declaration of Incompetency and Involuntary Medication Order

      On December 11, 2012, four days after the court declared defendant restored to

mental competence, defense counsel orally moved under section 1368 to question

defendant’s mental competence. The court declared doubt as to defendant’s mental

competence, suspended criminal proceedings and appointed a doctor to examine her.

      On January 16, 2013, after reviewing the doctor’s report, the court again declared

defendant incompetent. The court appointed Dr. Harvey Oshrin to examine defendant

regarding whether she should be involuntarily medicated. The court also ordered a

placement evaluation from County Mental Health. On February 11, 2013, a placement

evaluation was filed recommending defendant be placed at Patton. The record does not

contain a copy of Dr. Oshrin’s report regarding whether defendant should be

involuntarily medicated.

      On March 7, 2013, the court held its hearing under section 1370 to determine

whether to order involuntary administration of antipsychotic medicine to defendant. On

that date, defense counsel filed a memorandum opposing such an order, citing a lack of

sufficient information in Dr. Oshrin’s report. The People’s sole witness was Dr. Oshrin.

He testified that defendant was a danger to others. Dr. Oshrin also opined that the


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involuntary administration of antipsychotic medicine was substantially likely to render

the defendant competent to stand trial and would be in her best medical interest. The

defense did not offer any contrary testimony, but vigorously cross-examined Dr. Oshrin

as to the basis for his opinions. At the conclusion of Dr. Oshrin’s testimony, the People

argued that the primary ground for ordering involuntary medication was that defendant

was a danger to others. The People’s secondary ground was that the involuntary

medication would render defendant competent to stand trial and would be in her best

medical interest. Defense counsel argued that defendant was willing to voluntarily take

antipsychotic medications and so no order was necessary. Secondarily, the defense

argued that: 1) Dr. Oshrin’s testimony did not establish that he knew enough about her

medical history to opine whether taking the proposed medication was in her best medical

interest; and 2) Dr. Oshrin was not specific enough about what the treatment plan and

specific medicine would be. At the conclusion of the hearing, the court declared that

defendant was a danger to others if not medicated. The court added that, even if

defendant were not a danger to others, the People had established the alternative ground

that the antipsychotic medication was likely to render defendant competent to stand trial.

The court ordered Patton to involuntarily administer antipsychotic medication to

defendant.

       On March 8, 2013, the court committed defendant to Patton for a maximum of

three years.

       This appeal followed.




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                                               DISCUSSION

       The Issues

       Defendant argues the trial court’s order that she be involuntarily medicated is

invalid under the factors set forth in Sell.2 Although, as defendant correctly points out,

“the Sell factors generally govern the involuntary administration of psychotropic

medications when the sole or primary purpose is to render the patient competent to stand

trial,” she also claims, without resort to any legal authority whatsoever, that these factors

“cannot be ignored in situations where other reasons might exists as, for example, the

patient is a danger to other or to himself.”

       The People counter that the trial court had no duty to consider the Sell factors

because it based its order on the theory that defendant is a danger to others when she is

not medicated, rather on the theory that the involuntary medication would render her

competent to stand trial.

       Statutory and Case Law Background

       “A defendant found mentally incompetent to stand trial must be committed to a

state hospital for the care and treatment of the mentally disordered, to another treatment

facility, or placed on outpatient status. [Citation.] [¶] The treatment the hospital can

administer is not without constitutional limits. An individual has a constitutionally


       2 Briefly, these factors are: 1) the importance of the government interest at stake;
2) whether the order sought will significantly further the government interest; 3) whether
the order is necessary to further the government interest; and 4) whether the drugs are
medically appropriate and in the patient’s best medical interest. (People v. Christiana
(2012) 190 Cal.App.4th 1040, 1049.)


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protected liberty interest in avoiding the unwanted administration of antipsychotic

medication under the due process clause of the Fourteenth Amendment. [Citations.]”

(People v. O’Dell (2005) 126 Cal.App.4th 562, 568.)

       Section 1370, subdivision (a)(2)(B)(i), provides three grounds upon which a court

may base an order to involuntarily treat a mentally incompetent defendant with

antipsychotic drugs: 1) serious harm to the defendant’s mental or physical health will

result if his mental disorder is not treated with antipsychotic medication (subd.

(a)(2)(B)(i)(I)); 2) the defendant is a danger to others (subd. (a)(2)(B)(i)(II); and 3) the

antipsychotic medication is likely to render the defendant competent to stand trial, under

specified circumstances (subd. (a)(2)(B)(i)(III).

       However, the statute is very specific that the court may not use the “competent to

stand trial” ground to involuntarily medicate the defendant unless it has first found that

the defendant does not meet the criteria for the first two grounds. “The court shall not

order involuntary administration of psychotropic medication under subclause (III) of

clause (i) unless the court has first found that the defendant does not meet the criteria for

involuntary administration of psychotropic medication under subclause (I) of clause (i)

and does not meet the criteria under subclause (II) of clause (i).” (§ 1370, subd.

(a)(2)(B)(ii).)

       Here, the trial court based its order on defendant’s dangerousness to others, and so

under subdivision (a)(2)(B)(ii), its decision cannot, by law, be based on the likelihood

that defendant can be involuntarily medicated into competency to stand trial. For this

reason alone, the Sell factors relied upon by defendant in this appeal are irrelevant.


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       If that were not enough, case law is very clear that the Sell factors do not apply to

an involuntary medication order based on a defendant’s dangerousness to others under

subdivision (a)(2)(B)(i)(II): “In Sell, the Supreme Court held that the government could

involuntarily medicate a mentally ill criminal defendant in order to render him competent

to stand trial only if four factors are present: (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 . . . ’ [Citation.] [¶] These factors do not apply when the antipsychotic

medication is proposed for a different purpose, i.e., related to a defendant’s

dangerousness . . . . [Citation.]” (People v. O’Dell, supra, 126 Cal.App.4th 562, 569.)

       Conclusion

       Here, the trial court’s decision to order that defendant be involuntarily treated with

antipsychotic drugs was based on her dangerousness to others, thus precluding the

necessity to justify the order using the Sell factors set forth above. Because defendant

does not challenge the order on the basis of insufficient evidence to support the finding

that she poses a danger to others, we must affirm the court’s order.

                                        DISPOSITION

       The trial court’s order of March 7, 2013, that defendant be involuntarily treated

with antipsychotic drugs is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




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                      RAMIREZ
                                P. J.


We concur:

McKINSTER
             J.

KING
             J.




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