Filed 8/26/20 P. v. Fisher 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


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


    THE PEOPLE,
                                                                                             F080416
           Plaintiff and Respondent,
                                                                               (Super. Ct. No. F19904565)
                    v.

    JACQULINE FISHER,                                                                     OPINION
           Defendant and Appellant.



                                                   THE COURT*
         APPEAL from an order of the Superior Court of Fresno County. Adolfo M.
Corona, Judge.
         Conness A. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Smith, Acting P.J., Snauffer, J. and DeSantos, J.
                                    INTRODUCTION
       Appellant Jacquline Fisher was found incompetent to stand trial and the superior
court ordered the involuntary administration of antipsychotic medication. Fisher
contends there is no substantial evidence supporting the order. We affirm.
                    FACTUAL AND PROCEDURAL SUMMARY
       On July 11, 2019, Fisher was charged with second degree robbery, felony
vandalism, and misdemeanor battery. On August 23, 2019, the trial court suspended
criminal proceedings pursuant to Penal Code1 section 1368 based upon defense counsel’s
doubt regarding Fisher’s competence to stand trial. Dr. Howard Terrell was appointed to
examine Fisher.
       Pursuant to the trial court’s order, Terrell conducted a psychiatric evaluation of
Fisher on September 15, 2019, and issued a written report. Terrell noted that Fisher
claimed to be Asian but appeared to be African-American and jail records stated she was
“ ‘Black.’ ” Fisher told Terrell she was receiving Zyprexa, Depakote, and hydroxyzine
while in jail.
       Fisher reported she had been diagnosed as having bipolar disorder and
schizophrenia and received SSI disability payments based on the diagnosis. However,
Fisher did not believe she had any mental illness. Fisher also reported five inpatient
psychiatric hospitalizations under Welfare and Institutions Code section 5150. She
initially denied ever having auditory hallucinations, then later admitted experiencing
them. She also first admitted visual hallucinations, then denied ever experiencing them.
       Fisher reported receiving numerous psychotropic medications over the years and
experiencing paranoia. She also reported experiencing manic episodes. Fisher admitted
to using methamphetamine for 10 to 15 years and cocaine for 30 years.


1      References to code sections are to the Penal Code.

                                             2
       Terrell observed Fisher demonstrated very poor eye contact; frequently appeared
to be responding to internal stimuli; and often gave paranoid responses. Terrell found
Fisher’s judgment and insight to be poor. Fisher’s IQ was within the borderline range for
mild mental retardation, but this was difficult to assess because of her paranoid and
psychotic state of mind. Her thought processes fluctuated from coherent to loose with a
paranoid theme.
       Terrell concluded Fisher suffered from a psychotic mental disorder that rendered
her incompetent to stand trial. He did not believe competency could be restored without
the use of antipsychotic medication. Terrell concluded Fisher was not mentally
competent to give informed consent for psychotropic medication. Therefore, Terrell
recommended the trial court authorize the involuntary administration of antipsychotic
medication. He opined that without antipsychotic medication, Fisher was at substantial
risk of harming herself or others.
       On September 27, 2019, the trial court found Fisher incompetent to stand trial
based on Terrell’s report. The trial court also ordered that Fisher be involuntarily treated
with psychotropic medications if necessary. A placement evaluation was ordered.
       A placement evaluation was conducted of Fisher on October 30, 2019. In the
interview, Fisher again stated she was Asian. She had difficulty maintaining eye contact,
her mood was dysthymic, and her responses evidenced paranoia. Fisher again denied any
mental illness, although she acknowledged being diagnosed with schizophrenia and
bipolar disorder.
       Fisher acknowledged taking medication for mental illness, but also claimed to be
taking “ ‘Anthrax.’ ” She seemed hesitant to continue her medications after release from
jail. Fisher denied experiencing any current visual or auditory hallucinations. She
admitted abusing drugs since she was “ ‘young’ ” and stated she frequently used cocaine,



                                             3
heroin, and methamphetamine. Fisher did not believe she would abuse drugs again if
released but could not identify any support system.
       The evaluation concluded that Fisher lacked insight and understanding of her
mental illness, substance abuse history, and need for receiving appropriate treatment.
Her substance abuse placed her at serious risk because it would alter her psychotropic
medications and increase her symptoms.
       The evaluation concluded Fisher would benefit from an intensive inpatient
program where she would receive treatment that might include psychotropic medication.
       On November 18, 2019, the trial court ordered that Fisher be committed to the
State Department of State Hospitals for no more than two years. The involuntary
administration of psychotropic medication also was authorized. There was no objection
to the placement or the authorization for involuntary medication.
       Fisher appealed.
                                      DISCUSSION
       Fisher contends the order for the involuntary administration of psychotropic
medication is not supported by substantial evidence.
Standard of Review and Applicable Law
       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.) However, an involuntarily committed patient may be forcibly treated with
antipsychotic medication if a court has determined that she is not competent to refuse
treatment. (Ibid.; In re Calhoun (2004) 121 Cal.App.4th 1315, 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

                                             4
to refuse treatment involves consideration of three factors: (1) whether the patient is
aware of his situation and acknowledges the existence of 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 required to be given to
patients whose informed consent is sought 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.)
         Section 1370 also requires a trial court to make certain findings regarding a
defendant’s placement and treatment until competency is restored. With respect to
involuntary administration of medication, the trial court must determine that the
defendant lacks capacity to make a decision on medication; the defendant’s disorder
requires treatment; and if treatment is not provided, it is probable that serious harm will
result to the defendant. (§ 1370, subd. (a)(2)(B)(i)(I).)
         “We review an order authorizing involuntary administration of antipsychotic
medication for substantial evidence.” (People v. Fisher (2009) 172 Cal.App.4th 1006,
1016.)
Analysis
         Here, substantial evidence supports all three factors and the findings under
section 1370. Fisher told Terrell that she did not believe she had any mental illness,
despite five section 5150 inpatient commitments and a diagnosis of bipolar disorder and
schizophrenia. She variously denied and admitted visual and auditory hallucinations.
Clearly, Fisher was not aware of and did not acknowledge the existence of her condition,
or that she had a condition requiring treatment.
         Fisher acknowledged taking prescribed psychotropic medication, but additionally
abused cocaine, heroin, and methamphetamine. Her substance abuse would alter the
psychotropic medication and increase her symptoms. She had poor insight and judgment

                                               5
and lacked understanding of her mental illness and benefits of treatment. This evidences
a lack of understanding of the benefits and risks of treatment, the second factor.
       Fisher’s thought processes were not always coherent, and her responses evidenced
paranoia. Terrell opined that Fisher was not mentally competent to give informed
consent to treatment. Thus, evidence supports the third factor that Fisher was not capable
of informed consent. This also establishes that Fisher is presently suffering adverse
effects of her mental illness. (§ 1370, subd. (a)(2)(B)(i)(I).)
       Terrell also expressed concern that without medication, Fisher was at risk of
harming herself or others because of her psychotic state of mind and history of violent
criminal behavior. (§ 1370, subd. (a)(2)(B)(i)(I).)
       Fisher offered no evidence to contradict Terrell’s report in the trial court. The
evidence before the trial court provided substantial evidence supporting the involuntary
administration of antipsychotic medication. (People v. Fisher, supra, 172 Cal.App.4th at
p. 1016.)
                                      DISPOSITION
       The order authorizing the involuntary administration of antipsychotic medication
is affirmed.




                                              6
