Filed 10/18/13 P. v. Sargsyan CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039261
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1233596)

         v.

HAYK SARGSYAN,

         Defendant and Appellant.



         Defendant Hayk Sargsyan appeals from an order authorizing involuntary
administration of antipsychotic medication to him. (Pen. Code, § 1370, subd. (a)(2).) 1
He contends that there was insufficient evidence to support the finding that he lacked the
capacity to consent to this treatment. We find no error and affirm.


                                                   I. Statement of the Case
         On May 31, 2012, a felony complaint charged defendant with vandalism (§ 594,
subds. (a), (b)(1)). About a week later, there were concerns about defendant’s mental
competency and criminal proceedings were suspended. (§ 1368.) In September 2012,
the trial court found that defendant was incompetent to stand trial based on a
psychological evaluation.


1
         All further statutory references are to the Penal Code.
       After an evidentiary hearing on December 5, 2012, the trial court found that
defendant did not have the capacity to consent to treatment with antipsychotic
medication, committed him to the Department of State Hospitals, and authorized
involuntary medication with antipsychotic drugs.
       Defendant has filed a timely notice of appeal.


                                   II. Statement of Facts
       On May 29, 2012, defendant threw a chair through the window that separated the
staff work area from the assembly room at the Barbara Aaron’s Psychiatric Facility.
Defendant told the arresting officer that he was “pissed off” about an attendant’s
behavior.


                                       III. Discussion
       Defendant contends that there was insufficient evidence to support the trial court’s
finding that he did not have the capacity to consent to treatment with antipsychotic
medications.
                                       A. Background
       After concerns were raised about defendant’s competency in June 2012, the trial
court suspended criminal proceedings and appointed Dr. Rudolph Cook, a psychologist,
to evaluate defendant pursuant to section 1369, subdivision (a). Dr. Cook reviewed
defendant’s medical records. Defendant had a history of substance abuse and had been
diagnosed with psychosis, not otherwise specified. A progress note, dated June 7, 2012,
stated that defendant had been prescribed Depakote, Zyprexa, Thorazine, and Propanol,
but he was refusing some of these medications “at times.” The note also gave a
description of defendant as “[u]ncooperative, unpredictable, not much interaction . . .
[g]rossly disabled, unable to provide his own food, shelter and clothing.” A week later, a
progress note stated that defendant was “unresponsive, preoccupied with internal
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stimuli,” and refused psychiatric medication. Subsequent progress notes reported that
defendant refused treatment, was unresponsive, uncooperative, agitated, and internally
preoccupied, and exhibited bizarre and oppositional behavior. The progress note, dated
July 3, 2012, also stated that defendant was “medically non-compliant. Responds to
strong encouragement to take meds. A little improvement.”
          Dr. Cook attempted to interview defendant in jail on June 30, 2012, but he was
informed that defendant was “mentally unstable and unable to come to an interview.”
Three days later, Dr. Cook spoke with defendant through his cell door. Defendant
“communicated with [him] minimally and barely.” Dr. Cook was “unable to understand
anything” that defendant said to him. Dr. Cook stated: “I was unable to discern if he was
responding to my direct questions, or if he was answering his own inner
preoccupations. . . . I concluded the interview without having been able to elicit any form
of emotional response from him, or engage him in any meaningful manner.” Dr. Cook
found “no meaningful improvement in the defendant’s thinking and behavior since his
arrest” and that “[i]f [defendant’s] mental state was mainly due to substance abuse
[Dr. Cook] would have expected to see more in the way of improvement in his mental
state.”
          Based on his interview with defendant and his review of the medical records,
Dr. Cook concluded that defendant was: “1) Unable to understand the nature of the
proceedings in which he is currently engaged, [¶] and [¶] 2) Unable to cooperate with
counsel in the development of a rational defense.”
          On September 5, 2012, after considering Dr. Cook’s report, the trial court found
defendant incompetent to stand trial and referred him to the South Bay Conditional
Release Program for placement (CONREP). Two weeks later, Dr. Douglas Johnson, the
community program director of (CONREP), filed a report in which he recommended that
defendant be committed to the Department of State Hospitals for placement in a trial
competency program. Staff had reported to Dr. Johnson that defendant had been
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“floridly psychotic, responding to internal stimuli, paranoid and disorganized . . . despite
him being medicated with two anti-psychotic and one mood stabilizer medication.”
Dr. Johnson interviewed defendant, who “spoke briefly but not on topic.” According to
Dr. Johnson, “[i]t was clear his psychotic [condition] was interfering with his ability to
communicate effectively.”
       On September 19, 2012, the trial court appointed Dr. John Chamberlain, a board-
certified psychiatrist and an associate professor of psychiatry at University of California
at San Francisco, to evaluate defendant’s competency to consent to treatment with
antipsychotic medication. About a month later, Dr. Chamberlain filed his report.
       At the December 5, 2012 hearing held on defendant’s capacity to give his consent,
Dr. Chamberlain testified as an expert in the diagnosis and treatment of mental disorders,
including the prescription of antipsychotic and other psychotropic medications, and in
assessing an individual’s risk to themselves or others. Dr. Chamberlain met with
defendant at the jail on October 7, 2012. Dr. Chamberlain explained to defendant who he
was, why he was there, who ordered and would receive the evaluation, and the nature and
purpose of the evaluation. He also explained that he was not there in a treating capacity,
the limits of confidentiality, and that defendant’s participation was voluntary. Defendant
indicated that he understood the information and he did not have any questions. After
asking defendant a few questions, Dr. Chamberlain concluded that he did not have an
adequate understanding of what had been explained to him. Defendant said that
Dr. Chamberlain had not told him what type of doctor he was, that no one told
Dr. Chamberlain to evaluate him, and that he did not know the purpose of the evaluation
or to whom the evaluation would be given. When Dr. Chamberlain asked defendant a
question, it would take longer than expected for him to answer it. Dr. Chamberlain
explained the informed consent advisement again. He also questioned him again about
his understanding of the advisement, but defendant failed to demonstrate an


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understanding. Dr. Chamberlain then ended their meeting. The meeting lasted about 16
minutes.
       Dr. Chamberlain reviewed court records, including a felony complaint,
documentation from the sheriff’s office, the CLET printout, and Dr. Cook’s report.
Based on this information and his meeting with defendant, Dr. Cook concluded that
defendant met the diagnostic criteria for a psychotic disorder, not otherwise specified.
He explained that this disorder is characterized by symptoms of psychosis, such as
delusions, hallucinations, and a disorganized pattern of thinking or disorganized
behavior, but there is insufficient evidence to conclude that the person has a more
specifically defined psychotic disorder such as schizophrenia.
       Dr. Chamberlain opined that defendant was at increased risk of harming himself or
committing violence without the treatment of antipsychotic medication. He also noted
that Dr. Cook’s report referred to defendant’s history of substance use, but he concluded
that defendant’s custody for a “fairly long period” ruled it out as a cause of defendant’s
disorder.
       Dr. Chamberlain would recommend that defendant begin treatment with Abilify or
Risperdal, because these medications have fewer motor side effects, such as tardive
dyskinesia in which the individual develops abnormal involuntary movements. However,
the risks from these medications include metabolic side effects, including weight gain,
increased blood sugar, diabetes, and elevated triglycerides and cholesterol. According to
Dr. Chamberlain, Risperdal is “a little bit more likely” to cause metabolic side effects and
slightly more sedating than Abilify. Neither medication has “much abuse potential.”
Another side effect of antipsychotic medication is akathisia, in which the person feels
“very restless” and “as though their muscles are crawling under their skin, and they
literally can’t sit still. They will pace back and forth.” According to Dr. Chamberlain,
this side effect is not dangerous and is relatively easy to treat. Dr. Chamberlain noted


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that defendant’s medical records indicated that he had previously been prescribed
Thorazine, Zyprexa, Depakote, and Propranolol.
       Dr. Chamberlain opined that antipsychotic medication was an appropriate
treatment for defendant’s mental disorder and that other treatments were unlikely to be
effective in treating his symptoms. He also opined that if defendant’s mental disorder
was not treated with antipsychotic medication, it was probable that serious harm to his
physical or mental health would result. In Dr. Chamberlain’s opinion, defendant lacked
the capacity to make decisions regarding antipsychotic medication due to his problems
with information processing. He explained: “That having gone over something
relatively simple such as the nature and purpose of my being there and the evaluation
twice, that he didn’t seem to be able to demonstrate an adequate ability to master that
material. . . . I don’t think he would have the ability to engage in a discussion of
something much more complex, which would be various treatment options available to
him, the risks and benefits of different treatment options, and to engage in a rational
discussion of those things.”
       According to Dr. Chamberlain, the side effects of the antipsychotic medication
were unlikely to interfere with defendant’s ability to understand the nature of the criminal
proceedings or his ability to assist counsel in the conduct of his defense. He explained
that the benefits of helping defendant think more clearly and process information would
outweigh any risks of the medication and the treating clinician could adjust the
medication to further minimize any adverse effects. In his view, it was medically
appropriate to administer psychotropic medication to defendant. Dr. Chamberlain did not
discuss with defendant about his willingness to take medication in the past or if he was
currently willing to do so.
       Dr. Chamberlain’s knowledge of the medications prescribed for defendant was
based on Dr. Cook’s report. He had not reviewed which medications were effective
because he was not defendant’s treating psychiatrist. When he met with defendant, he
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did not know whether he had actually taken his medication that day because he was
unable to talk with him.


                        B. Burden of Proof and Standard of Review
       In order to obtain a court order authorizing the involuntary administration of
antipsychotic medication, the prosecution has the burden of proving by clear and
convincing evidence that the defendant lacks the capacity to give his or her consent to
such treatment. (See United States v. Ruiz-Gaxiola (9th Cir. 2010) 623 F.3d 684, 692.)
       An appellate court reviews the trial court’s order authorizing the state hospital to
administer antipsychotic medication involuntarily for substantial evidence. (People v.
O’Dell (2005) 126 Cal.App.4th 562, 570.) Under this standard, an appellate court
reviews “the whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence which is reasonable, credible,
and of solid value . . . .” (People v. Johnson (1980) 26 Cal.3d 557, 578 (Johnson).)


                                C. Sufficiency of the Evidence
       A trial court has three distinct avenues for authorizing the involuntary
administration of antipsychotic medication. (§ 1370, subd. (a)(2)(B)(i).) Here, the trial
court focused on subsection (I) of section 1370, subdivision (a)(2)(B)(i), which has three
requirements: (1) “[t]he defendant lacks capacity to make decisions regarding
antipsychotic medication,” (2) “the defendant’s mental disorder requires medical
treatment with antipsychotic medication,” and (3) “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.” (§ 1370, subd. (a)(2)(B)(i)(I).)
       In the present case, there was substantial evidence to support the first requirement
that defendant lacked the capacity to make decisions regarding antipsychotic medication.
Defendant was diagnosed with psychosis, not otherwise specified, which impaired his
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ability to communicate and process information. Drs. Cook, Johnson, and Chamberlain
were unable to engage in any meaningful conversation with defendant. Dr. Cook was
“unable to discern if [defendant] was responding to [his] direct questions, or if he was
answering his own inner preoccupations.” When defendant spoke with Dr. Johnson, he
was also not responsive. In Dr. Chamberlain’s view, defendant lacked the capacity to
make decisions regarding antipsychotic medication because he was unable to demonstrate
an ability to engage in a discussion of a less complex topic, that is, the nature and purpose
of Dr. Chamberlain’s visit.
       There was also substantial evidence to support the second requirement that
defendant’s mental disorder required treatment with antipsychotic medication. As
previously stated, defendant was diagnosed as psychotic. Substance abuse was
eliminated as a cause of his condition because his symptoms persisted after he had been
arrested. In Dr. Chamberlain’s opinion, defendant’s symptoms were appropriately
treated with antipsychotic medication and other treatments were unlikely to be effective.
Dr. Chamberlain also discussed the benefits of antipsychotic medications and how any
side effects of such treatment could be mitigated.
       The trial court must also find that serious harm to defendant’s mental or physical
health would probably result if defendant was not treated with antipsychotic medication.
“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.” (§ 1370,
subd. (a)(2)(B)(i)(I).) Here, defendant’s medical records included several incidents in
which his mental illness had interfered with his ability to think, communicate, and control
his anger, thereby constituting evidence that he had previously suffered adverse effects to
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his mental health. Defendant was unable to communicate with Drs. Cook, Johnson, and
Chamberlain. He was also uncooperative, unpredictable, and preoccupied with internal
stimuli, engaged in bizarre behavior, and swung a chair through a window at a treatment
facility. Dr. Chamberlain explained the need for treatment for defendant: “[P]sychosis
[is] a toxic condition to the brain. The longer someone is in a psychotic state and
untreated, the more difficult to treat, the more resistant to treatment. Their symptoms
tend to . . . progress and worsen over time and their social interpersonal occupational
functioning tends to decline over time the longer they stay psychotic.” He also testified
that people who have been diagnosed as psychotic have more physical health problems,
including higher rates of obesity and diabetes, high blood pressure, and higher rates of
substance abuse. Thus, there was substantial evidence to support the finding that serious
harm to defendant’s mental health would probably result if defendant was not treated
with antipsychotic medication.
       Defendant argues, however, “it is highly doubtful that a determination that the
presumption [he] had the required capacity had been overridden can be supported by 16
minute interview where the examiner did not even ask [him] if he would consent to
taking antipsychotic medication. He did not discuss the underlying offense with [him].
All he did was to give his informed consent advisement.” There is no merit to this
argument. This court reviews the entire record for substantial evidence and draws all
inferences in favor of the trial court’s ruling. (Johnson, supra, 26 Cal.3d at p. 578.)
Dr. Chamberlain’s report and testimony were based on his review of the felony
complaint, documentation from the sheriff’s office, and Dr. Cook’s report, which
included a discussion of defendant’s medical records, as well as his interview with
defendant. During Dr. Chamberlain’s interview with defendant, he attempted to give the
informed consent advisements twice. However, defendant’s failure to demonstrate that
he understood these advisements supported Dr. Chamberlain’s conclusion that defendant


                                              9
was incapable of engaging in a rational discussion regarding the more complex subject of
treatment with antipsychotic medication.
      Defendant also contends that Dr. Chamberlain did not review defendant’s medical
records to determine if any medical considerations applied. However, Dr. Chamberlain
testified that he had reviewed Dr. Cook’s report, which had not indicated that defendant
had a medical condition which would explain his psychosis. Defendant next points out
that there was no evidence that Dr. Chamberlain had reviewed Dr. Johnson’s report
which stated that defendant was “medicated with two anti-psychotic and one mood
stabilizer medication[s]” less than a month before his interview with Dr. Chamberlain.
But since Dr. Cook’s report indicated that defendant sometimes took his medications,
Dr. Chamberlain was aware of this fact. The trial court could have then reasonably
concluded that defendant’s intermittent use of medications was inadequate to treat his
symptoms.
      In sum, there was substantial evidence to support the trial court’s order.


                                           IV. Disposition
      The order is affirmed.




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                                 _______________________________
                                 Mihara, J.



WE CONCUR:




______________________________
Premo, Acting P. J.




______________________________
Grover, J.




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