Filed 2/23/15 P. v. J.N. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059888

v.                                                                       (Super.Ct.No. RIF1302445)

J.R.N.,                                                                  OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Irma Poole Asberry,

Judge. Reversed.

         Laurel M. Nelson, 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, Arlene A. Sevidal, Supervising

Attorney General, Andrew Mestman and Collette C. Cavalier, Deputy Attorneys General,

for Plaintiff and Respondent.



                                                             1
       Defendant and appellant J.R.N. (defendant) appeals an order of the superior court

granting authority to administer antipsychotic medications to him involuntarily. We

reverse.

                        FACTS AND PROCEDURAL HISTORY

       According to defendant, he had been released on parole about one week before the

incident resulting in the current charge. He was staying at a relative’s home, although

apparently that residence had not been approved by defendant’s parole officer. When a

parole agent and a deputy sheriff went to the residence on March 12, 2013, some kind of

disagreement or scuffle took place, after which defendant was arrested for a parole

violation and charged with one count of resisting the officers (Pen. Code, § 69).

       Early in the proceedings, the court declared a doubt as to defendant’s competency

to stand trial. The court suspended proceedings and appointed Drs. Craig Rath and

Edward Pflaummer to evaluate defendant. Dr. Rath found defendant was able to

cooperate with counsel, he was currently stabilized on medication, and he understood the

proceedings against him. However, defendant’s “continuing competency is predicated on

his continuing to receive medication. He would quickly deteriorate if unmedicated or

taking illicit substances of any kind. The defendant will require ongoing medication for

the foreseeable future for his combination of disorders.” Dr. Rath opined that defendant

was competent to make decisions regarding medication. Dr. Pflaummer found that

defendant suffered from a mental illness with psychotic elements. Defendant had “poor

comprehension, confusion, scattered thinking and . . . mental illness,” but that he was not



                                             2
malingering during his psychological testing. Dr. Pflaummer found defendant

incompetent to stand trial. Defendant needed antipsychotic medication, which would

likely be effective for him.

       After reviewing these conflicting reports, the court appointed a third evaluator,

Dr. Jennifer Bosch, to assess defendant’s competency.

       Dr. Bosch reported that defendant was aware that he had mental illness, which was

treated with medication, but he could not name the medications he was taking.

Defendant did not appear to know the role of the judge, the prosecutor, or the defense

attorney, “nor could he accurately report on what he is being charge[d] with.” Defendant

was “non-responsive when he was asked questions regarding general court proceedings,

going off on totally unrelated tangents which had nothing to do with the questions asked.

It is this examiner’s opinion the defendant is not competent to proceed at this juncture as

he is incapable of aiding in his defense, does not understand court proceedings nor does

he understand the roles of any of the professionals involved in his case.”

       On receipt of the third report, the court ordered that the proceedings remain

suspended, and referred defendant to the county mental health department for a

recommendation for defendant’s placement for treatment. The court later also ordered

yet another report on the separate issue of defendant’s capacity to decide whether or not

to take antipsychotic medications. The doctor originally appointed to provide the

medication evaluation was unavailable, so the court ultimately appointed Dr. Harvey

Oshrin to examine defendant.



                                             3
       Dr. Oshrin prepared a report for the court, and testified at a hearing on the issue.

Dr. Oshrin’s written report concluded that defendant “lacks capacity to make decisions

related to antipsychotic medication although he allowed that he is willing to take

medication if it did not make him worse, only if it helps.”

       At the hearing, Dr. Oshrin testified that “Medically speaking,” defendant did “lack

capacity” to make decisions about whether to take antipsychotic medication. Dr. Oshrin

based his opinion on defendant’s evident mental confusion and disorganization.

Defendant’s “thought processes are not logical and rational . . . .” Defendant lacked a

“deep understanding” of his condition, and of the benefits and risks of taking

medications, although “superficially he says he is willing to take it if it helps him.”

       On cross-examination, Dr. Oshrin stated that it was possible, given Dr. Oshrin’s

diagnosis of drug-induced psychosis, that defendant might recover without any medical

intervention if he refrained from taking illicit drugs. Defendant had a “history” of taking

the medication that was prescribed for him, and he had expressed his willingness to take

medications. Defense counsel asked, “And to that effect, . . . that he has made the

decision to take meds in the past and he states he’s willing to continue to take them, you

believe that he has the capacity to make medication decisions?” Dr. Oshrin responded,

“Yes. At the moment, yes.” Dr. Oshrin also agreed that a person can have the capacity

to make medication decisions without having a deep understanding of his or her mental

illness.




                                              4
       On redirect examination, the prosecutor asked Dr. Oshrin to explain the apparent

contradiction between his statement that defendant lacked the capacity to make

medication decisions, and his statement that defendant had the capacity to do so “at the

moment.” Dr. Oshrin testified that defendant was “willing to go along with the program.

He’s willing to take medication if the professionals feel he needs it,” but that defendant

was “not able to form [the] opinion himself” that he needed or did not need medication.

Defendant’s mental disorder affected his ability to understand the need for antipsychotic

medication; defendant did not have the capacity to understand his need for medication,

and in that sense his cooperation was superficial only.

       The trial court granted the prosecution’s motion under Penal Code section 1370

for involuntary administration of antipsychotic medications to defendant.

       Defendant has appealed, arguing that the evidence was insufficient to support the

court’s order.

                                        ANALYSIS

I. We Decline to Dismiss for Mootness Where the Issue Is One of Great Public Interest,

                    and Is Capable of Repetition Yet Evading Review

       Preliminarily, we take up the People’s motion to dismiss the appeal as moot. The

People have presented a minute order of the trial court showing that defendant has, with

treatment, been restored to competency to stand trial. The People argue that the

involuntary medication order is therefore moot, as there is no effective relief that may be




                                             5
afforded to defendant.1 (See Eye Dog Foundation v. State Board of Guide Dogs for the

Blind (1967) 67 Cal.2d 536, 541.) “A case is moot when the decision of the reviewing

court ‘can have no practical impact or provide the parties effectual relief. [Citation.]’

[Citation.] ‘When no effective relief can be granted, an appeal is moot and will be

dismissed.’ [Citation.]” (MHC Operating Limited Partnership v. City of San Jose (2003)

106 Cal.App.4th 204, 214.)

       There is an exception to the mootness rule, however, when an issue is of general

public interest and likely to recur, i.e., the issue is “ ‘capable of repetition yet evading

review.’ ” (Bracher v. Superior Court (2012) 205 Cal.App.4th 1445, 1455.) The People

argue that the issue here does not come within the exception, pointing to People v.

Lindsey (1971) 20 Cal.App.3d 742. Lindsey involved a determination that a criminal

defendant was legally insane; he had been committed to a state hospital as incompetent to

stand trial. While the appeal was pending, the hospital certified that the defendant had

become sane. His case was restored to the trial calendar. The appellate court found that

the appeal was moot and should be dismissed, because “the superintendent’s certification

of sanity terminates the commitment, leaving no prejudicial consequences which could be

ameliorated by a successful appeal.” (Id. at p. 744.) The People urge that, by parity of


       1 We granted the People’s request to take judicial notice of the abstract of
judgment below, showing that defendant has been sentenced on the underlying charge.
The People renew their contention that the sentence renders the issue moot. We disagree;
the public interest exception continues to apply. To dismiss for mootness in cases such as
this would allow the state to commit serious violations of fundamental rights with
impunity. It is to reach precisely such injustices that the public interest exception exists.


                                               6
reasoning, defendant’s restoration to competency here resulted in the termination of his

commitment and the order for forced administration of medications, likewise “leaving no

prejudicial consequences [that] could be ameliorated by a successful appeal.” (Id. at

p. 744.)

       The order for involuntary administration of medications is, however, a different

issue from a determination of sanity or competency to stand trial. A determination of

incompetency does not necessarily involve involuntary administration of medications. A

defendant suffering from mental illness may nevertheless have the capacity to make

decisions about medical treatment, even if he or she is incompetent to stand trial. The

order for involuntary administration of medications invades an important interest of

personal autonomy and liberty, quite apart from the issue of competency alone. A

defendant’s restoration to competency may be dependent upon continued administration

of medications, such that the issue is likely to arise repeatedly, in a manner inapplicable

to a defendant who has the capacity to make medical decisions for himself or herself.

       The People contend that defendant might have secured more timely review of the

issue if he had proceeded by way of a writ, rather than filing an appeal. (See Carter v.

Superior Court (2006) 141 Cal.App.4th 992, 998-999.) Even in Carter, however, the

petition was rendered technically moot by other proceedings (dismissal of the

information pursuant to Pen. Code, § 995), and the court invoked the public interest

exception to the mootness doctrine. Using a writ proceeding will not necessarily obviate

or avoid mootness. In addition, as the People also acknowledge, an order authorizing



                                              7
involuntary administration of medication may properly be reviewed on direct appeal.

(See People v. Christiana (2010) 190 Cal.App.4th 1040, 1046-1047 [119 Cal.Rptr.3d

191] (Christiana); see also People v. Coleman (2012) 208 Cal.App.4th 627, 632.)

“Section 1086 of the Code of Civil Procedure provides that the writ of mandate ‘must be

issued in all cases where there is not a plain, speedy, and adequate remedy, in the

ordinary course of law.’ ” (Phelan v. Superior Court (1950) 35 Cal.2d 363, 366.)

Conversely, “[a]lthough the statute does not expressly forbid the issuance of the writ if

another adequate remedy exists, it has long been established as a general rule that the writ

will not be issued if another such remedy was available to the petitioner. (Irvine v.

Gibson [(1941)] 19 Cal.2d 14 [118 P.2d 812]; People v. Olds (1853), 3 Cal. 167 [58

Am.Dec. 395].)” (Ibid.)

       We conclude that defendant was not required to file a writ petition; proceeding by

appeal was appropriate. We also find it appropriate to apply the public interest exception

to the mootness doctrine, inasmuch as the issue involves very important liberty interests,

and arises in a context in which the same issue is likely to arise again, yet evade timely

review.

       We turn next to the merits.

 II. The Evidence Was Insufficient to Support the Order for Involuntary Administration

                               of Antipsychotic Medications

       In Christiana, supra, 190 Cal.App.4th 1040 this court explained the relevant

criteria to be considered: “The United States Supreme Court has held that ‘an individual



                                             8
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.’ ” (Christiana, supra,

190 Cal.App.4th 1040, 1049, fn. omitted, italics omitted, quoting Sell v. United States

(2003) 539 U.S. 166, 178, 180–181 [156 L.Ed.2d 197, 123 S.Ct. 2174] (Sell).)

       “[Penal Code 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



                                               9
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.” ([Pen. Code,]

§ 1370, subd. (a)(2)(B)[(ii), (i)(III)].)’ (Christiana, supra, 190 Cal.App.4th at pp. 1049–

1050.) We review an order authorizing involuntary treatment under section 1370 for

substantial evidence. (Christiana, pp. 1049–1050.)” (People v. Coleman, supra, 208

Cal.App.4th 627, 633.)

       Defendant contends that the evidence was insufficient to support findings that

the relevant criteria were met to impose an order for involuntary medication with

antipsychotic drugs.

       Penal Code section 1370, subdivision (a)(2)(B), provides in relevant part:

       “(B) The court shall hear and determine whether the defendant lacks capacity to

make decisions regarding the administration of antipsychotic medication, and shall

proceed as follows:

       “(i) The court shall hear and determine whether any of the following is true:




                                             10
       “(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

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.



                                               11
       “(III) The 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.

       “(ii) If the court finds any of the conditions described in clause (i) to be true, the

court shall issue an order authorizing the treatment facility to involuntarily administer

antipsychotic medication to the defendant when and as prescribed by the defendant’s

treating psychiatrist. 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).”

       Here, the trial court found that defendant qualified for involuntary administration

of antipsychotic drugs under clauses (a)(2)(B)(i)(I) and (a)(2)(B)(i)(II) of Penal Code

section 1370. Defendant argues that the evidence was insufficient to support the findings

under those two clauses.




                                              12
       A. The Evidence Under Clause (a)(2)(B)(i)(I) of Penal Code Section 1370

       To support an order under clause (a)(2)(B)(i)(I) of Penal Code section 1370, the

court was required make three findings: (1) that defendant lacked capacity to make

decisions regarding antipsychotic medication; (2) that his mental disorder required

treatment with antipsychotic medication; and (3) that serious harm to defendant’s

physical or mental health would result if he were not treated.

       Defendant urges that the necessary findings were not supported by the evidence.

       1. The Evidence Was Insufficient to Show That Defendant Lacked the

Capacity to Make Medication Decisions

       As to defendant’s capacity to make medical decisions, Dr. Oshrin testified both

that defendant lacked such capacity, and that he did have the capacity to make medical

decisions. Dr. Oshrin’s opinion that defendant lacked the capacity to make medical

decisions was based on defendant’s mental confusion and disorganization, “to the point

that his judgment and insight . . . are poor.” Dr. Oshrin diagnosed defendant as suffering

from substance-induced psychotic disorder, based on defendant’s history of taking drugs

and his demeanor when Dr. Oshrin interviewed him.

       Dr. Oshrin also testified that it was possible that defendant suffered from a

different disorder; in the case of some other possible diagnoses, antipsychotic medication

might not be an appropriate treatment. As to the diagnosis of substance-induced

psychotic disorder, the first method of treatment is to abstain from intoxicating

substances. It was possible for a patient with a substance-induced psychotic disorder to



                                             13
recover, without antipsychotic medication, if the patient refrained from using illicit

substances. As of the time of the hearing, September 16, 2013, over one month after Dr.

Oshrin had examined defendant, Dr. Oshrin had no knowledge whether defendant’s

condition had improved or worsened in that interval.

       Dr. Oshrin conceded, and the evidence was uncontroverted, that defendant

recognized that he had a mental disorder of some kind, that he had taken medications for

it in the past, and that he had never refused to take his prescribed medications. He had

even at times asked for medication from the jail physician. Inasmuch as defendant had

made the decision in the past to take his medications, and because he stated he was

willing to continue to take prescribed medications, Dr. Oshrin stated that, “At the

moment,” defendant was capable of making medication decisions. Dr. Oshrin testified

that defendant lacked a “ ‘deep understanding of his mental illness,’ ” but he conceded

that a person could have the capacity to make medication decisions without a deep

understanding of his or her mental illness. Dr. Oshrin also stated that it was likely that

defendant’s condition would improve if he did not have access to the substances that

induced his psychosis.

       Later, on redirect examination, Dr. Oshrin indicated that defendant’s

understanding of his condition and his decision-making ability was “ ‘superficial.’ ” He

explained that patients could be compliant, would perhaps take the word of an authority

figure that medications were needed, and could cooperate in taking what was given them,

“without any real understanding.” In defendant’s case, defendant was “willing to go



                                             14
along with the program,” and would be “willing to take medication if the professionals

feel he needs it,” but Dr. Oshrin believed that defendant was “not able to form [an]

opinion himself” as to whether he would need or want medication.

       Defendant contends that, on this state of the record, the evidence was insufficient

to support a finding that he lacked the capacity to make medication decisions. Defendant

was aware that he had mental health issues, and during some of his examinations, he was

aware of what medications he had been prescribed to treat those conditions. He had

directly expressed his willingness to take medications, if they helped him. Defendant had

at times initiated requests for medication. Defendant had also participated in changes in

his medication, based on his reports of side effects. Even without a “ ‘deep

understanding’ ” of his medical condition, defendant had essentially already been making

ongoing medication decisions for himself for some time before Dr. Oshrin’s evaluation.

       To the extent that Dr. Oshrin opined that defendant lacked the capacity to make

medication decisions for himself, that opinion was contradicted both by defendant’s

actual functioning and by Dr. Oshrin’s own testimony. Dr. Oshrin’s opinion that

defendant could not make medication decisions himself was based on the notion that

defendant did not have a “deep understanding” of his medical condition. Dr. Oshrin

himself undermined the foundation of that opinion when he conceded that a “deep

understanding” was not required to be competent to make medication decisions. The

court was not presented with two opinions, each equally supported by the evidence.

Rather, Dr. Oshrin’s conclusion—that defendant was not competent to make medication



                                            15
decisions himself—was negated by his concession that the basis for the conclusion was

unsound.

       2. The Evidence Was Insufficient to Show That Defendant Required

Antipsychotic Medication to Treat His Condition

       Dr. Oshrin did agree with the prosecutor, in conclusional terms, that defendant

“probably would worsen” if he were not treated with antipsychotic medications.

Dr. Oshrin opined that defendant required treatment with antipsychotic medications

based on defendant’s “mental confusion and disorganization. Antipsychotic medication

is designed to improve that process, to make him more rational and logical.”

       Dr. Oshrin admitted on cross-examination, however, that when a patient suffers

from substance-induced psychosis, the first line of treatment is to refrain from using

intoxicating substances. Once again, the court was not presented with a choice of two

medical opinions, each equally supported by the evidence. One of Dr. Oshrin’s

opinions—that defendant’s condition would worsen if he were not medicated—was

inherently inconsistent with the principle that a person with drug-induced psychosis

would fully recover without any additional medication, as long as illicit intoxicants were

withdrawn. Dr. Oshrin demonstrated that his conclusion was not supported by the

premises of his argument.

       Dr. Oshrin also agreed that a patient with that particular diagnosis could recover,

without medication, simply by refraining from the use of illicit substances. Dr. Oshrin

insisted that, “[n]o matter what the person’s medical condition is[,] there is some



                                            16
antipsychotic medication which can be used with minimal damage to their medical

condition.” Dr. Oshrin’s opinion amounted essentially to an endorsement that

antipsychotic medication is always beneficial for a mental health patient. However, that

is not the same thing as saying that antipsychotic medication was required to treat

defendant’s condition. The proposition that psychotropic medications are generally

beneficial in the treatment of persons with mental disorders is not a proper basis upon

which to deprive a patient of the fundamental liberty interest in making medication

decisions for himself or herself. Such a general proposition does not satisfy the strict

requirement that the necessity of medication be proven before the patient’s liberty interest

may be circumscribed.

       3. The Evidence Was Insufficient to Show That, Without Antipsychotic

Medication, Serious Harm to Defendant’s Mental or Physical Health Would Result

       As just recounted, Dr. Oshrin testified both that defendant “probably would

worsen” without antipsychotic medication, and that defendant could possibly recover,

given his diagnosis of substance-induced psychosis, simply by refraining from using

intoxicating substances, without being treated with antipsychotic medication. Defense

counsel asked Dr. Oshrin, “you don’t know whether or not [defendant’s substance-

induced psychotic disorder] will get worse without antipsychotic medications, do you?”

Dr. Oshrin responded, “Oh, I doubt if it would get worse. As I testified before, the

likelihood is it would get better without access to these substances.”




                                             17
       As before, Dr. Oshrin undercut his own opinion; the opinion or conclusion that

defendant would suffer serious harm if he were not medicated was without basis or

support, given his concession that defendant might well recover, even without

administering any psychotropic medications.

       4. Conclusion: The Evidence Was Insufficient to Support an Order for

Involuntary Medication Under Penal Code Section 1370, Subdivision (a)(2)(B)(i)(I)

       As appellate defense counsel points out, there were many areas of deficiency in

Dr. Oshrin’s opinion testimony. Dr. Oshrin had not taken a thorough medical history of

defendant, even though such a history would be required for a physician to determine

whether and which antipsychotic medications would be indicated for defendant’s

condition. Without a proper history, e.g., whether the patient also had a seizure disorder

or other conditions, it would be difficult to determine whether any particular medication

would have deleterious effects on the additional medical conditions, or whether the

effectiveness of the drug would be obviated by the additional conditions. Dr. Oshrin

arrived at a diagnosis in defendant’s case, but characterized it as an “educated guess,”

acknowledging that several of the other examining doctors had arrived at different

diagnoses and that other diagnoses were possible.

       In short, Dr. Oshrin was not aware of all of defendant’s medical history, he was

unsure of the diagnosis, and he testified as to no drug in particular, so that he could not

be reasonably sure of the necessity or effectiveness of any particular drug. (See People v.

O’Dell (2005) 126 Cal.App.4th 562, 571 [determination of whether antipsychotic



                                             18
medication would positively or negatively affect the patient’s mental disorder required

consideration of particular medications. Failure to specify any particular drug made it

impossible to evaluate whether involuntary treatment was required].) In addition,

Dr. Oshrin’s testimony indicated that defendant understood that he had a mental illness,

that defendant understood that his condition improved when he took his medication, and

that defendant’s condition could likely improve, even without the intervention of

antipsychotic medications. “Like a house built on sand, the expert’s opinion is no better

than the facts on which it is based.” (Kennemur v. State of California (1982) 133

Cal.App.3d 907, 923; accord, Griffith v. County of Los Angeles (1968) 267 Cal.App.2d

837, 847 [an expert’s opinion cannot constitute substantial evidence if unsubstantiated by

facts].) Here, Dr. Oshrin’s opinions reflected mere conclusions, without the necessary

facts to support them, and indeed he negated the predicates of his conclusions with his

own testimony.

       The evidence was insufficient to demonstrate that defendant could not make

medication decisions, that any medication was necessary, or that defendant’s health

would suffer if he did not take antipsychotic medications.

       B. The Evidence Under Clause (a)(2)(B)(i)(II) of Penal Code Section 1370

       An order for involuntary treatment under Penal Code section 1370,

subdivision (a)(2)(B)(i)(II), requires the court to find that a defendant has inflicted,

attempted to inflict, or made a serious threat to inflict substantial physical harm on

another person, either while in custody, or that resulted in his or her being taken into



                                              19
custody. It also requires a finding that 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 condition, including a consideration of the defendant’s behavior within the

past six years.

       1. The Evidence Was Insufficient to Support a Finding That Defendant Was

a Danger to Others Under the Statute

       Dr. Oshrin testified that defendant was a danger to others as a result of his mental

disorder. Dr. Oshrin based his opinion in part on the current charges, which he

characterized as an assault on two officers (see Pen. Code, § 69, resisting executive

officers). Although Dr. Oshrin did not have the police report or arrest report, he did have

access to the felony complaint in the instant matter.

       The complaint alleged, in the terms of the statute, that defendant “did willfully and

unlawfully attempt by means of threats and violence to deter and prevent [the two

officers] . . . from performing a duty imposed upon such officer by law, and did

knowingly resist [the officers] by the use of force and violence . . . .”

       The complaint also alleged that defendant had been convicted in 2011 of a felony

count of aggravated battery by gassing (Pen. Code, § 4501.1); “gassing” is defined as

placing or throwing excrement or other bodily fluids or substances on the person of any

peace officer. That offense took place within six years before the instant resisting arrest

charges.



                                              20
       There was also a notation in Dr. Oshrin’s report that, according to administrative

records, defendant had to be placed in a safety cell when he was taken into custody,

because he had been banging his head on the door and kicking the door.

       As defendant points out, however, an order for involuntary medication under

Penal Code section 1370, subdivision (a)(2)(B)(i)(II), requires a showing of

dangerousness to others, consisting of infliction of, attempt to inflict, or threat to inflict

substantial bodily harm on another.

       Defendant urges that the complaint alone is devoid of any facts to show that

defendant inflicted, attempted to inflict, or threatened to inflict substantial physical harm

on the officers. The allegations are framed in terms of the statutory language, but there is

no description of the events that took place, which caused the officers to arrest defendant.

It is possible to resist executive officers without creating a risk of substantial physical

harm to the officers. Only sufficient force as to constitute resistance is required, and such

force need not be directed to any officer. (People v. Bernal (2012) 222 Cal.App.4th 512,

517 [Pen. Code, § 69 sets forth two ways to commit the offense: use of threats or

violence to deter an officer in the performance of duty, or knowingly resisting, by force

or violence, an officer in the performance of duty. As to the second type of violation,

“[o]ther than forceful resistance, the terms of the statute do not require that a defendant

use any other manner of force or violence on the person of the executive officer.” A

violation “need not involve any force or violence directed toward the person of an

executive officer. Rather, . . . force used by a defendant in resisting an officer’s attempt



                                               21
to restrain and arrest the defendant is sufficient to support a conviction.” (Bernal at

p. 519.)].)

       Likewise, the conviction of assault by gassing does not describe defendant’s

conduct, so as to demonstrate facts constituting actual infliction of, attempt to inflict, or

threat to inflict substantial physical harm on any officer. Defendant’s other convictions

were not within six years before the current charge.

       As to defendant’s being placed in a safe cell on his arrest, that conduct evidently

involved self-harm, banging his head on the door of his cell and kicking the door, rather

than manifesting dangerousness to others.

       2. Conclusion: The Evidence Was Insufficient to Support an Order for

Involuntary Medication Under Penal Code Section 1370, Subdivision (a)(2)(B)(i)(II)

       Dr. Oshrin was not possessed of any facts to support his opinion that defendant

had manifested dangerousness to others, consisting of infliction of, attempt to inflict, or

threat to inflict substantial physical harm on others while in custody or which

necessitated his being taken into custody. The evidence was insufficient to support the

trial court’s order for involuntary administration of medications, based on Penal Code

section 1370, subdivision (a)(2)(B)(i)(II).

       C. The Evidence Under Clause (a)(2)(B)(i)(III) of Penal Code Section 1370

       The trial court did not purport to make a finding under Penal Code section 1370,

subdivision (a)(2)(B)(i)(III), to support its order for involuntary administration of

antipsychotic medications.



                                              22
       Penal Code section 1370, subdivision (a)(2)(B)(i)(III), requires five findings to

support an order for involuntary administration of antipsychotic medications: (1) the

defendant is charged with a serious crime against the person or property; (2) involuntary

administration of antipsychotic medication is substantially likely to render the defendant

competent to stand trial; (3) the medication is unlikely to have side effects that interfere

with the defendant’s competence; (4) less intrusive treatments are unlikely to have

substantially the same results; and (5) antipsychotic medication is in the patient’s best

medical interest.

       The court may not base an order on Penal Code section 1370,

subdivision (a)(2)(B)(i)(III), unless the court has first found the other two clauses

inapplicable. The trial court here never made such a finding of inapplicability, and did

not purport to make the order for involuntary administration of antipsychotic medications

in reliance on subdivision (a)(2)(B)(i)(III). The People concede that the trial court “did

not find that forcible medication was necessary to render [defendant] competent to stand

trial under Penal Code section 1370, [subdivision] (a)(2)(B)(i)(III), or Sell v. United

States, supra [539 U.S. 166, [156 L.Ed.2d 197, 123 S.Ct. 2174]]. . . . Because the trial

court did not find, and was not required to find that medication was required under

subdivision (a)(2)(B)(i)(III), [the People do] not suggest that involuntary medication was

warranted under this provision.”

       Accordingly, we do not address the requirements of a finding under Penal Code

section 1370, subdivision (a)(2)(B)(i)(III).



                                               23
                                      DISPOSITION

       “ ‘The importance of the defendant’s liberty interest, the powerful and permanent

effects of anti-psychotic medications, and the strong possibility that a defendant’s trial

will be adversely affected by the drug’s side-effects all counsel in favor of ensuring that

an involuntary medication order is issued only after both sides have had a fair opportunity

to present their case and develop a complete and reliable record.’ [Citation.]” (Carter v.

Superior Court, supra, 141 Cal.App.4th 992, 1005.) That standard was not met in this

case. We agree with defendant that the evidence was insufficient to support the order for

involuntary administration of antipsychotic medications under Penal Code section 1370,

subdivisions (a)(2)(B)(i)(I) and (a)(2)(B)(i)(II). Any order for involuntary administration

of antipsychotic medications should be based only upon competent factual evidence. The

order authorizing involuntary administration of antipsychotic medications is reversed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                McKINSTER
                                                                                              J.
We concur:



RAMIREZ
                        P. J.



RICHLI
                           J.




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