Filed 9/15/16 P. v. Gambord CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

THE PEOPLE,
                                                                                           F070669
         Plaintiff and Respondent,
                                                                          (Super. Ct. No. 14CRAD682209)
                   v.

JEFFREY GAMBORD,                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from an order of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
         Robert Navarro, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant Attorney
General, Niromi W. Pfeiffer, and Karli Eisenberg, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Gomes, Acting P.J., Detjen, J. and Franson, J.
          Appellant Jeffrey Gambord, a sexually violent predator, appeals from a
December 1, 2014, order authorizing the Department of State Hospitals (DSH) to
involuntarily administer psychotropic medications to treat his bipolar disorder. We
affirm.
                        FACTS AND PROCEDURAL SUMMARY
The Petition
          On September 4, 2014, DSH petitioned the superior court for an order compelling
involuntary treatment of Gambord with psychotropic medication pursuant to In re
Calhoun (2004) 121 Cal.App.4th 1315. The petition alleged that Gambord was admitted
to Coalinga State Hospital (CSH) on September 19, 2006, pursuant to Welfare and
Institutions Code section 6604. The petition stated he was diagnosed with Bipolar I
Disorder, Current Episode Manic, and was involuntarily administered psychotropic
medication pursuant to an in-house panel determination conducted on April 10, 2014.
The petition further alleged that Gambord had a history of noncompliance with taking
psychotropic medication, continued to demonstrate a lack of insight into his mental
illness and his need for psychotropic medication, was unable to reason and understand the
gravity of his actions, and was incompetent to refuse medical treatment. Moreover, he
presented a danger to others when not medicated with psychotropic medication,
threatening staff and exposing himself to female staff. Finally, the petition alleged there
were no less intrusive methods to render him non-dangerous than administration of
psychotropic medication.
The Hearing
          Dr. Risley
          Dr. Dawn Risley, a psychiatrist at CSH, testified that Gambord was her patient and
she saw him multiple times per day. She diagnosed him with “Bipolar I Disorder, most
recent episode manic with psychotic features.” He had an “[e]xpansive, elevated and
irritable mood lasting greater than one week with pressured speech and a need to keep

                                              2.
talking; racing thoughts; engaging in behavior that has the potential for dangerous
consequences; easily distractibility, psychomotor agitation[;] [¶] … [¶] [f]light of ideas [;
a]nd increase in goal-directed activity.” When she discussed this diagnosis with him, he
disagreed, stating he suffered only from anxiety. He minimized the criteria and could not
see how bipolar symptoms related to him.
       Dr. Risley testified that the normal treatment for Gambord’s condition included a
mood stabilizer paired with a second generation antipsychotic medication. She had
discussed this treatment with Gambord; however, he believed he did not need either
medication and said he would only take Klonopin, which according to Dr. Risley would
not treat his illness. On many occasions, he stated he would stop taking his medications,
and then he did. He said he would not take his medications if he went to court or jail. He
said he would only agree to take medications if they were administered at subtherapeutic
dosages.
       Dr. Risley testified that Gambord was not currently taking any medication because
Dr. Risley had no further court order. She stopped Gambord’s lithium because a test
demonstrated an electrical abnormality of his heart. She explained that all medications
carry risks, but the benefits outweighed the risks for Gambord because he needed the
medication. He was in an institution for the gravely mentally ill where treating disorders
was the main concern. Gambord was able to understand the risks and benefits of a
medication, but not as it pertained to him. He believed he was not mentally ill and did
not need medication. But he was in fact very mentally ill. He did not have the ability to
understand and evaluate whether to take his medication, and he lacked the capacity to
make his own decisions regarding his medication treatment.
       Gambord was transferred to another level of care because he made repeated calls
to several senators and they wanted him to stop. He was placed on one-to-one care and
his telephone privileges were taken away, except for approved numbers.



                                             3.
Defense Evidence
       Officer Rabaut
       Police Officer Charles Rabaut testified that he worked at CSH for three and one-
half years as the chief of police and three years as a supervising senior special
investigator. Gambord had functioned as a confidential informant for him, providing
information about crimes being committed, including those involving Mr. M.
Apparently, a police report naming Gambord as a confidential informant was provided to
one of the patients by an attorney and the report was later recovered inside CSH. As a
result, Gambord’s life was threatened and he was physically assaulting in the hallway.
He was called a rat. Gambord continued to call Officer Rabaut and provide information
for a few years. Gambord seemed normal, rational, and logical. Some employees were
involved in the criminal activities he reported. He also expressed concern that CSH was
mistreating patients. He tried contacting authorities and legislators because he wanted to
prevent a particular person from being appointed as the director of CSH. In addition, he
considered starting a concierge dry cleaning service for the employees at CSH, which
Officer Rabaut thought was unusual.
       Gambord
       Gambord testified that he had only two 15-minute encounters with Dr. Risley.
She later explained to him that he was going to be forcibly medicated because he had
been threatening people in Sacramento and they were afraid. She said he was a danger to
them. He denied threatening any senators. She explained that he was bipolar and needed
medication. He told her about his other problems, but she said they would not cause
bipolar disorder. She accused him of not taking responsibility for his behavior and not
having insight into what he was doing.




                                             4.
         When Gambord was taking lithium and other drugs, he suffered from many side
effects. He would consider taking other medications if he could start with smaller doses
and see if he had side effects.
         Gambord did not believe he was bipolar, but he thought his anxiety would benefit
from medication. He could speak calmly when given the time to explain himself. And
when he did get excited, he could calm himself back down. Often the situations at CSH
provoked excited behavior in patients. Sometimes he needed to show his anger to be
taken seriously at CSH.
         That morning, he asked to take an Ativan because he was nervous about the
hearing. He testified that he was not allowed to take it because “they” wanted the court
to see him in his “full manic state or something.”
         Gambord had written a critical report on CSH and posted it on his website.
Dr. Risley told him his website was full of typical manic stuff. He told her he had
received a lot of compliments about his website, but she said it was totally manic. She
would not listen to the things he said about CSH and its crimes. Gambord started
contacting legislators regarding what was happening at CSH. His first goal was to
prevent the appointment of a particular administrator at CSH; the second was to initiate
an investigation into deaths occurring at CSH.
         He was also considering starting a concierge-type service for CSH employees that
might include dry cleaning, expanded food service, and car detailing.
         He once protested CSH’s prohibition against video contact between patients and
their terminally ill family members. He was granted approval to visit with his father via
video.
         Gambord informed Officer Rabaut that a patient, Mr. M, was going to stab another
patient. Officer Rabaut sent the police. At trial, Officer Rabaut testified to protect
Gambord’s identity, and Mr. M. was convicted. But Mr. M. found the report and
discovered Gambord’s identity. Mr. M. then threatened Gambord, who had no choice but

                                             5.
to negotiate with him. Gambord would buy him sodas and leave them in the bathroom
where there were no cameras. Eventually, Gambord decided to stop. He told the director
he was going to stop paying off Mr. M. and he expected the hospital to protect him.
After that, he was threatened, assaulted, and called names. He was still housed with
Mr. M. Gambord tried to keep to himself for his own safety.
       On cross-examination, Gambord said he probably had several mental illnesses.
He thought he might exhibit some of the symptoms of bipolar disorder, but he had not
had the opportunity to explore it because Dr. Risley would not discuss it with him. He
did think he had anxiety and post-traumatic stress disorder. He explained: “I may have
bipolar. I just am not convinced. I’m open to the idea of somebody convincing me that
there’s not a differential diagnosis of anxiety versus bipolar, you know.” He explained
that he refused to take the prescribed medication because of side effects he was suffering,
including weight gain, arrhythmias, high blood sugar, confusion, and dizziness.
       After hearing this evidence and argument by counsel, the superior court granted
the petition to forcibly medicate Gambord. The following occurred:

               “THE COURT: I’ve read and considered my notes.· A couple
       observations.· Mr. Gamboa [sic] is clearly bipolar.· He’s clearly manic.·
       And I don’t mean that as a criticism of you, sir. You’ve acknowledged it.·
       You acknowledged you’re bipolar.· You know, sometimes when I’m
       conducting these hearings I listen for very telling quotes and testimony.·
       And there’s two of them that struck me.· One of them—and I acknowledge
       that there may be some animosity between Dr. Risley and Mr. Gamboa
       [sic].· That was obvious from the testimony.· I’m not stating that as a
       criticism, but there, obviously, is some—maybe some animosity between
       the two both ways.· I’m not saying just from Mr. Gamboa [sic] to
       Dr. Risley, perhaps from Dr. Risley to Mr. Gamboa [sic] as well.

              “But one of her quotes was:· His behavior is uncontrollable because
       he’s manic.· And then Mr. Gamboa [sic] stated in his testimony, and it was
       almost a passing conversation, where he said they didn’t want to give me
       my meds this morning because they wanted the court to see what I’m like
       when I’m manic.· Well, that’s exactly the behavior that was displayed in
       court today.


                                            6.
      “Um, so I agree with you, [defense counsel], Mr. Gamboa [sic]
appears to be a highly intelligent man.

       “[DEFENSE COUNSEL]: Excuse me.· Gambord.

       “THE COURT: ·Gambord.· I apologize.· Highly intelligent.· But
he’s more than driven and he’s more than passionate.· That is what is of
greatest concern of the court.· Now, I’m trying to balance that concern
against his medical well-being.

        “While I’m going to order the forced med, I’m going to approve the
order for lack of capacity, because I do not believe he has the capacity to
make a rational decision about his medication. Um, I believe that that—
any medication issues are—still have to be governed by appropriate
medical treatment.· So my order can in no way be read or heard to put Mr.
Gambord at risk, if this—the—and I apologize.· I forget the medical term
for the heart condition.

       “[DEFENSE COUNSEL]: QT—

·     “THE COURT: ·QTCs. ·If the QTCs occur, and it appears that Mr.
Gambord is at medical risk, then I’m ordering that he be constantly
monitored—his medical condition be constantly monitored.· If at any time
the medical risks do outweigh the benefits of the medication they are
ordered to be ceased.

        “I’m not a doctor.· I don’t believe any court has the ability to say
continue this medication if it puts the defendant at risk.· I’ve not heard
testimony today that establishes he is at risk for continuing medication.·
The doctor stated, though it was—the question was stated in the negative so
initially it was misstated, but she stated the benefits of the medication
outweigh the risks.· And that’s what the evidence appears to establish
today.

        “It is, frankly, just striking to the court, and I think we all—because
it’s been previously established that Mr. Gambord has been off his
medication now for some time.

·      “[DEFENSE COUNSEL]: Correct.

       “THE COURT: And, um, he is surely no better. And it appears to
this court, based upon observation, that his behavior is, um, continuing to
deteriorate in the sense of the manic behavior and the bipolar symptoms,
the—I tried to keep track of the criteria that the doctor utilized when she



                                       7.
       was listing the description of bipolar. And those behaviors were exhibited
       even in court today.

             “So I am finding that the defendant lacks the appropriate capacity to
       make the decisions. And I’m approving the forced medication order.”
       On December 16, 2014, Gambord filed a notice of appeal.

                                      DISCUSSION
       A competent adult has a common law and constitutional right to refuse medical
treatment, including the administration of antipsychotic drugs. (In re Qawi (2004) 32
Cal.4th 1, 14.) An involuntarily committed patient may be forcibly treated with
antipsychotic medication if a court has determined that he is not competent to refuse
treatment. (Ibid.; In re Calhoun, supra, 121 Cal.App.4th at p. 1354.) The superior court
shall determine competence to refuse treatment by clear and convincing evidence, “so
clear as to leave no substantial doubt, [and] sufficiently strong to command the
unhesitating assent of every reasonable mind.” (Conservatorship of Waltz (1986)
180 Cal.App.3d 722, 733, fn. 14.)
       A judicial determination of competency to refuse treatment involves consideration
of three factors: (1) whether the patient is aware of his situation and acknowledges his
condition; (2) whether he understands the benefits and risks of treatment as well as
alternatives to treatment; and (3) whether he is able to understand and evaluate the
information regarding informed consent and participate in the treatment decision by
rational thought processes. (Riese v. St. Mary’s Hospital & Medical Center (1987)
209 Cal.App.3d 1303, 1322-1323.)
       The standard of review for an order authorizing the involuntary administration of
antipsychotic medication is substantial evidence. (People v. Fisher (2009)
172 Cal.App.4th 1006, 1016.) “In considering a challenge to the sufficiency of the
evidence … we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,



                                            8.
credible, and of solid value—from which a reasonable trier of fact could [make its
findings]. [Citation.] We presume every fact in support of the [ruling that] the trier of
fact could have reasonably deduced from the evidence. [Citation.] If the circumstances
reasonably justify the trier of fact’s findings, reversal … is not warranted simply because
the circumstances might also reasonably be reconciled with a contrary finding.
[Citation.] ‘A reviewing court neither reweighs evidence nor reevaluates a witness’s
credibility.’ ” (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
       Here, while there was evidence that Gambord was articulate and intelligent, there
was also evidence reasonably justifying the court’s finding that he was manic and bipolar,
not simply passionate and driven. Dr. Risley explained that he exhibited several bipolar
symptoms, and the superior court stated it observed many of them during the hearing.
Defendant was aware he struggled with mental illness, and he was willing to treat his
anxiety, but he did not accept the bipolar diagnosis or his need for medication of that
illness. He acknowledged his condition to only a limited extent, conceding he might have
some bipolar symptoms, but he continued to deny the diagnosis and stated he would be
willing to try medication only in subtherapeutic dosages. The evidence established he
was not aware of his bipolar illness and his need for medication of that illness, and was
not able to rationally participate in the treatment decision. Thus, we conclude the record
contains substantial evidence supporting the superior court’s finding that Gambord was
not competent to refuse treatment. Furthermore, we defer to the superior court’s ability
to observe Gambord’s behavior and gauge the witnesses’ credibility, recognizing that
without that ability, we are in no position to question the court’s observations or reweigh
the evidence before it.
                                     DISPOSITION
       The superior court’s order is affirmed.




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