Filed 10/15/18
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


CALIFORNIA DEPARTMENT                         2d Crim. No. B286187
OF STATE HOSPITALS,                        (Super. Ct. No. 17MH-0109)
                                            (San Luis Obispo County)
     Plaintiff and Respondent,
                                     ORDER MODIFYING OPINION AND
v.                                        DENYING REHEARING
                                       [NO CHANGE IN JUDGMENT]
A.H.,

     Defendant and Appellant.



THE COURT:
       It is ordered that the opinion filed herein on September 21,
2018, be modified as follows:
       1. On page 2, second full paragraph, change the first
sentence “Appellant’s commitment offense occurred in 2013” to
read:
       “The Qawi petition states that appellant’s commitment
offense occurred in 2013.”
       2. On page 3, delete the first sentence starting with “He
petitioned the Superior Court for relief” and insert the following:
       “Hospital filed a verified petition to authorize the continued
involuntary medication of appellant pursuant to Qawi, supra, 32
Cal.4th 1. (See Cal. Code, Regs., tit. 9, § 4210, subd. (p).)”
       3. At the bottom of page 3, after the last sentence “The
evidence credited by the trial court is sufficient to support the
Qawi order” insert the following footnote “²”:
       “²Appellant complains that the Qawi petition, which was
verified by a hospital staff psychiatrist, was not received into
evidence. Dr. Daigle testified that he reviewed the “petition for
today’s matter,” appellant’s medical and medication records,
interviewed appellant, and spoke to appellant’s treating
psychiatrist. Referring to the petition, the doctor stated that
appellant “did act out earlier” and was “given mood stabilizing
medication,” but still “has delusions.” On direct, appellant was
asked about the May 4, 2017 incident alleged in the petition in
which hospital police searched appellant for contraband.
Appellant said “I took advantage of the situation” and “faked an
anxiety attack,” before “they went and threw me in restraints.”

      There is no change in judgment.
      Appellant’s petition for rehearing is denied.




                                  2
Filed 9/21/18 (unmodified opinion)
                   CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                                DIVISION SIX


CALIFORNIA DEPARTMENT                             2d Crim. No. B286187
OF STATE HOSPITALS,                            (Super. Ct. No. 17MH-0109)
                                                (San Luis Obispo County)
     Plaintiff and Respondent,

v.

A.H.,

     Defendant and Appellant.



            A.H. appeals from a Qawi order (In re Qawi (2004) 32
Cal.4th 1) which authorizes the California Department of State
Hospitals-Atascadero (Hospital or ASH) to involuntarily
administer antipsychotic medication to treat his severe mental
disorder. Appellant contends 1. the evidence does not support the
finding that he is incompetent to refuse treatment, 2. the Qawi
order violates the Free Exercise Clause of the First Amendment,
and 3. The Qawi order violates his due process rights.
            Appellant’s views, whether religious or otherwise, are
bizarre. The contentions based thereon, must be rejected. As we
shall explain, the premise to this appeal is that “Zythite” or
“Zahara,” a religion with a congregation of one, is not a sham and
that appellant is a true believer. He has the burden of proof on
these issues (see ante, p. 5) and he has not met his burden.
                     Sufficiency of the Evidence
             Appellant, a 31-year-old mentally disordered offender
(MDO) suffers from schizoaffective disorder, bipolar type, post-
traumatic stress disorder (PTSD), and cannabis use disorder,
severe. His symptoms include entrenched mood disorder
featuring grandiose, often hyper-religious ideation; delusions;
suicidal ideation; and post-traumatic stress nightmares with
military related PTSD.
             Appellant’s commitment offense occurred in 2013.
He started eight fires in Oceanside. Appellant had a backpack
containing two red plastic gas containers and a Bic lighter.
Appellant admitted setting the fires then lapsed into psychosis,
speaking in a language that nobody understood.
             In 2017, after appellant was committed as an MDO,
appellant became violent during a scheduled room check for
contraband. He physically fought the hospital police. Then, he
purposefully slammed his head against the wall and blamed the
police for harming him. Appellant had to be placed in full bed
restraints because he would not stop attempting to harm staff
and himself. A month later, appellant was asked to draw a
picture of his discharge plan. Appellant drew an automatic rifle
with bullets spraying and wrote “‘mass shooting.’” Later in the
day, appellant threatened hospital staff and clenched his fists. 1
             Hospital mental health professionals conducted two
administrative hearings and determined that antipsychotic

      1
       Even this conclusory recitation of the facts demonstrate
that appellant is a danger to the community, himself, fellow
patients at ASH, and Hospital staff.




                                2
medication was required to treat appellant. He petitioned the
superior court for relief from the Qawi order. (See Cal. Code,
Regs., tit. 2, § 4210, subd. (p).)
              Doctor Mark Daigle, a psychiatrist at ASH testified
that appellant suffered from schizophrenia with an affective
disorder that required treatment with antipsychotic medication.
Appellant was already taking Depakote for PTSD, but refused to
take other psychiatric medications. Dr. Daigle stated that
appellant’s schizoaffective disorder was manifested in part by
religious delusions in which appellant believed he was a prophet
and contacted at night by a spirit called Zahara. Appellant
denied that he was mentally ill or suffered from delusions. Dr.
Daigle also opined that appellant lacked the capacity to evaluate
the risks and benefits of taking antipsychotic medication.
              Appellant has a history of psychiatric
hospitalizations that included a commitment to Patton State
Hospital where he was prescribed Zyprexa (an antipsychotic
medication) and three local involuntary commitments where
appellant received antipsychotic medication. Appellant stated
that he experienced side effects from certain antipsychotic drugs
and that “Zythite’s [sic] only use organic remedies for pain and
psychiatric ailment.”
              The trial court found that appellant lacked the
capacity to refuse medical treatment and issued a Qawi order
authorizing Hospital to involuntarily administer antipsychotic
medication. We need not repeat the well-settled substantial
evidence rule. (E.g., People v. Avila (2009) 46 Cal.4th 680, 701;
People v. Jones (1990) 51 Cal.3d 294, 314.) The evidence credited
by the trial court is sufficient to support the Qawi order.




                                3
                    Freedom of Religion Defense
             Appellant contends that a patient’s religious beliefs,
even if perceived by others as delusional, do not warrant a Qawi
order because it violates his constitutional right to the free
exercise of religion. The United States Constitution (1st and 14th
Amendments) and California Constitution (Cal. Const. art. 1, § 4)
prohibit involuntary medication that burdens a patient’s free
exercise of religion, unless a compelling state interest outweighs
the patient’s interests in religious freedom. (People v. Woody
(1964) 61 Cal.2d 716, 718; Qawi, supra, 32 Cal.4th at pp. 15-16.)
Similar protections are found in The Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA; 42 U.S.C. §
2000cc-1(a)(1)-(2) and California’s Lanterman-Petris-Short Act
(Welf. & Inst. Code, § 5325.1, subd. (e)). 2
             Appellant bears the initial burden of showing that (1)
he seeks to engage in the exercise of religion and (2) the Qawi
order substantially burdens the exercise of his religion. (Holt v.

      2
       The Religious Land Use and Institutionalized Persons Act
of 2000 (RLUIPA), 42 U.S.C. 2000cc-1(a) provides: “No
government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution . . .
unless the government demonstrates that imposition of the
burden on that person: (1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest.”

       The Lanterman-Petris-Short Act provides that persons
with mental illness have the same legal rights and
responsibilities guaranteed all other persons by the federal and
state constitutions. (Welf. & Inst. Code, § 5325.1.) Subdivision
(e) of section 5325.1 protects the patient’s “right to religious
freedom and practice.”




                                 4
Hobbs (2015) 135 S.Ct. 853, 862 [190 L.Ed.2d 747, 755].) Here,
there is no credible evidence that his refusal to take antipsychotic
medication is grounded on a sincerely held religious belief. (Ibid.;
Cutter v. Wilkinson (2005) 544 U.S. 709, 725, fn. 13 [RLUIPA
does not preclude inquiry into the sincerity of a prisoner’s
professed religiosity]; In re Rhoades (2017) 10 Cal.App.5th 896,
905 [same].) Appellant stated that his god, Zahara, spoke to him
in 2008 and that appellant was writing a book called “‘The
Teachings of Zahara.’” Zahara “more or less told me not to use
[antipsychotic drugs], [and] has given me insight why I should
not use them.” Appellant said that he wrote 40 pages
“specifically for today” (italics added) and “[b]asically one of the
rules and guidelines Zahara has had me write[] . . . -- give me just
a moment to find the page. So here we go. [¶] ‘Zythite’s [sic]
only use organic remedies for pain and psychiatric ailment . . . .’
[¶] So this is why I don’t use synthetic psychotropic drugs
because god has more or less told me to not use them, has given
me insight why I should not use them,”
             Despite this new-found “insight,” appellant already
was taking Depakote, an antipsychotic drug for PTSD, took
Zyprexa at Patton State Hospital, and took antipsychotic
medication during three previous local involuntary commitments.
There is no authority that the Free Exercise Clause exempts a
psychiatric patient from being administered antipsychotic
medication where the patient is a danger to himself/herself or
others. Appellant had previously told Dr. Daigle about his
religious objections. At the hearing appellant said he was
invoking his religious-based rights “specifically for today.” This
is inconsistent with appellant’s medical history which reflects
that appellant took Depakote and Zyprexa inorganic




                                 5
psychotropics; and never before claimed that it violated his
religious beliefs. “To merit protection under the free exercise
clause of the First Amendment, a religious claim must satisfy two
criteria. ‘First, the claimant’s proffered belief must be sincerely
held; the First Amendment does not extend to “so-called religions
which . . . are obviously shams and absurdities and whose
members are patently devoid of religious sincerity.”’ [Citation.]
Second, ‘the claim must be rooted in religious belief, not in
“purely secular” philosophical concerns.’ [Citations.]” (Malik v.
Brown (9th Cir. 1994) 16 F.3d 330, 333.)
              Appellant asserts that his religious beliefs do not
pose a risk of harm to others. This claim is based entirely on his
own testimony and inferences drawn in his favor. This is a veiled
request to reweigh the evidence. We will not do so. In addition,
we observe that appellant suffers from a delusional disorder that
is not entirely religion based. Excessive religiosity can be a
manifestation of a patient’s psychosis and there can be a “linkage
between overt manifestations of religiosity and the existence or
strength of the psychosis.” (People v. Sword (1994) 29
Cal.App.4th 614, 632.) But Dr. Daigle stated that the delusions
are “not just religious based but it does include that.” For
example, the verified petition states that appellant was
previously found in possession of a carefully crafted noose and
threatened to go on a hunger strike while endorsing suicidal
ideation. It required one-on-one hospital monitoring for a month.
              The State of California has a compelling interest
under the parens patrie doctrine to provide care for persons who
are unable to care for themselves and in preventing an individual
from harming himself or others. (Qawi, supra, 32 Cal.4th at pp.
15-16.) Substantial evidence supports the finding that the Qawi




                                 6
order furthers a compelling government interest that outweighs
any religious belief. (People v. Woody, supra, 61 Cal.2d at p. 718.)
                             Due Process
             Appellant argues that the Qawi order violates his due
process rights because a disagreement between the patient and
patient’s doctor as to the efficacy of treatment does not support
the finding that the patient lacks the capacity to make treatment
decisions. (See, e.g., Conservatorship of Waltz (1986) 180
Cal.App.3d 722, 732 [electroconvulsive therapy].) This case
cannot fairly be characterized as a simple disagreement between
a patient and his doctor. There is no due process violation in this
case. Hospital followed existing statutory administrative, and
case law in obtaining the Qawi order. It is settled that
antipsychotic medication may be involuntarily administered to
an MDO who lacks the capacity to refuse treatment or is
dangerous to others within the meaning of Welfare and
Institutions Code section 5300. (Qawi, supra, 32 Cal.4th at pp.
27-28; People v. Fisher (2009) 172 Cal.App.4th 1006, 1013.)
                              Conclusion
             The question of whether an MDO is competent to
refuse antipsychotic medication focuses on three factors: (1)
whether the patient is aware of his mental illness; (2) whether
the patient understands the benefits and risks of treatment as
well as the alternatives to treatment; and (3) whether the patient
is able to understand and evaluate the information regarding
informed consent and participate in the treatment decision by
rational thought processes. (Qawi, supra, 32 Cal.4th at pp. 17-
18; Riese v. St. Mary’s Hospital & Medical Center (1987) 209
Cal.App.3d 1303, 1322-1323.) The trial court determined, and we
agree, that appellant, fails on each of these factors.




                                 7
                           Disposition
           The judgment (Qawi order permitting involuntary
administration of antipsychotic medication) is affirmed.
           CERTIFIED FOR PUBLICATION.




                                  YEGAN, Acting P. J.

We concur:


             PERREN, J.


             TANGEMAN, J.




                              8
                    Michael L. Duffy, Judge

           Superior Court County of San Luis Obispo

                ______________________________

            Jean Matulis, under appointment by the Court of
Appeal for Defendant and Appellant.

            Xavier Becerra, Attorney General, Julie Weng-
Gutierrez, Senior Assistant Attorney General, Jennifer M. Kim,
Supervising Deputy Attorney General, Jacquelyn Y. Young,
Deputy Attorney General, for Plaintiff and Respondent.
