Filed 9/1/15 P. v. C.D.D. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E062033

v.                                                                       (Super.Ct.No. RIF1408129)

C.D.D.,                                                                  OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge.

Reversed.

         Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Marilyn L.

George, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Defendant and appellant C.D.D. appeals from an order of the superior court

authorizing the involuntary administration of antipsychotic medications pursuant to Penal

Code section 1370.1 We reverse.

                              STATEMENT OF THE CASE

       Appellant is charged with possession of methamphetamine (Health & Saf. Code,

§ 11377, subd. (a)), obstruction of a peace officer (§ 148, subd. (a)(1)), and attempted

kidnapping (§§ 664/207, subd. (b).)2 As competency proceedings were held prior to a

preliminary hearing, the only information concerning the kidnapping offense is derived

from the police report as filtered through the written opinion and testimony of Dr. Harvey

Oshrin, one of the forensic examiners. In brief, a mother and her five-year-old daughter

walked past defendant as he was lying on the grass. Defendant held out a $5 bill to the

child asking her to “go somewhere with him” or “Come back without your mom and you

can have the money.”

       There is no other evidence concerning defendant’s current or previous behavior

with respect to violence or sexual misconduct. The complaint alleged two prior prison

term convictions within the meaning of section 667.5, but neither involved violence; one


       1 All subsequent statutory references are to the Penal Code unless otherwise
specified.

       2  That subdivision describes the act of one who “for the purpose of committing
any act defined in Section 288, hires, persuades, entices, decoys, or seduces by false
promises, misrepresentations, or the like, any child under the age of 14 years to go out of
this country, state, or county, or into another part of the same county.” It does not require
force or compulsion.


                                              2
was for obstruction of an executive officer (§ 69) and the other was for petty theft with

priors. (§ 666.)

                                       DISCUSSION

       A criminal defendant has a constitutionally protected liberty interest in avoiding

the unwanted administration of antipsychotic drugs under the due process clause of the

Fourteenth Amendment. (Washington v. Harper (1990) 494 U.S. 210, 221-222.) The

provisions of section 1370 in question are designed to ensure that the administration of

such medications is done only in carefully limited circumstances to achieve a significant

goal. (See Sell v. United States (2003) 539 U.S. 166, 180-183; see also In re Qawi (2004)

32 Cal.4th 1, 15-16 (Qawi).) Our review of the trial court’s order is limited to the

determination of whether or not the decision is supported by substantial evidence.

(People v. McDuffie (2006) 144 Cal.App.4th 880, 887.)

       The issue before this court is quite simple. Involuntary medication may only be

ordered if there is substantial evidence that defendant “ha[s] 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.” (§ 1370, subd. (a)(2)(B)(i)(II), italics added.)

       That statute goes on to provide that a finding of dangerousness may be based on

“an assessment of the defendant’s present mental condition, including a consideration of




                                              3
past behavior of the defendant within six years . . . and other relevant evidence.”3

(§ 1370, subd. (a)(2)(B)(i)(II).) However, as we have noted, there was no other relevant

evidence before the court. We conclude that the trial court’s order was not sufficiently

supported.

       Defendant frames the issue as whether the evidence supports the conclusion

that he represents a danger in the setting in which he is placed, whatever risks he might

present to young children. We believe this is the correct approach. The standards

under which antipsychotic medications may be ordered under section 1370,

subdivision (a)(2)(B)(i)(II), are stated in the conjunctive—the defendant must have

inflicted, attempted to inflict, or threatened to inflict “substantial physical harm” on the

victim of the charged offense, and he must currently present a “demonstrated danger of

inflicting substantial physical harm on others.” Thus, it is not enough that the defendant

have inflicted injury in the course of committing the charged offense; he must continue to

constitute a danger in his or her present circumstances.

       It will be noted that this subdivision reflects the governmental interest in

preventing violence or injury, while section 1370, subdivision (a)(2)(B)(i)(I), serves to

promote the important interest in the welfare of a defendant who does not have the


       3 Two other circumstances will authorize an order for antipsychotic medications
under section 1370, subdivisions (a)(2)(B)(i)(I) and (III)—where the defendant is
incapable of consenting and serious harm will result if he or she is not treated, and where
the defendant is charged with a serious crime and antipsychotic medication is likely to
render the defendant competent to stand trial. The trial court found that neither of these
applied and this decision is not challenged.


                                              4
capacity to consent to the administration of antipsychotic medications, and

subdivision (a)(2)(B)(i)(II) focuses on the need to assist the defendant in regaining

competency so that he or she may stand trial. (See Sell v. United States, supra, 539 U.S.

166.) Here, we agree with defendant that whether defendant represents a danger to others

must be considered as a matter of institutional security and that evidence that defendant

will present any danger to others while confined awaiting the restoration of competency

is wholly lacking in this case.

       As a useful comparison, inmates in state prison may not be involuntarily

medicated without a hearing on the question of dangerousness, which obviously relates to

their dangerousness while confined. (Qawi, supra, 32 Cal.4th at p. 22.) The same is true

for those confined under the Lanterman-Petris-Short Act (Welf. & Inst. Code, §§ 5000

et seq.) as well as those confined as mentally disordered offenders, who may only be

involuntarily medicated if determined to be dangerous to others. (Qawi, at p. 27.)

       The People argue that defendant represents a danger to young female children and

may therefore be compelled to take antipsychotic medications. But this inchoate risk

(such as it is) is inapplicable where defendant will be confined in a secure mental health

treatment facility. The question must be whether the medication is necessary to keep

defendant from being a danger to staff and other patients, and there is no evidence that

this is the case.

       The People do point out that one of the mental health evaluations described

defendant as being at times “irritated,” “angry” and “argumentative” during the



                                             5
interview. This falls far short of demonstrating that he is likely to assault staff or other

patients. (Cf. Washington v. Harper, supra, 494 U.S. at p. 227, fn.11 [inmate with

history of at least 20 assaults on fellow inmates and staff]; see Department of

Corrections v. Office of Admin. Hearings (1998) 66 Cal.App.4th 1100, 1105 [recent

repeated threats to kill facility staff and prosecutor or judge, staff assault].) A finding of

dangerousness cannot be based upon a defendant’s dissatisfaction with the way his or her

case is progressing, which was the focus of defendant’s complaints and agitation in this

case.

        If it were necessary to reach it, we would also find the decision vulnerable on

another basis. Defendant appears to concede that there was substantial evidence that he

had at least attempted or threatened to inflict “substantial physical harm” on the victim.

We think this is dubious. At the hearing, Dr. Oshrin commented with respect to the

apparent facts of the charged offense, “of course without saying, but I think everyone in

this room can fill in the blanks as to what he had in mind.” But even if we assume that

this was proper speculation, defendant was only charged with kidnapping based on an

intent to violate section 288. That statute may be violated by any touching of the minor

victim, even if outwardly innocuous and inoffensive. The gravamen of the criminal

offense is the actor’s lewd intent, not the nature of the touching. (People v. Shockley

(2013) 58 Cal.4th 400, 404, citing People v. Lopez (1998) 19 Cal.4th 282, 288.)

        Of course in another sense, and section 288 reflects this, child victims are subject

to substantial harm whenever they are perceived and used as objects of sexual desire.



                                               6
(People v. Martinez (1995) 11 Cal.4th 434, 444.) Thus, in one sense all touching in

violation of section 288 is “harmful.” However, before antipsychotic medications can be

administered under section 1370, subdivision (a)(2)(B)(i)(II), the court must find that the

defendant attempted to inflict “substantial physical harm.” (Ibid., italics added.) There is

simply no basis to assume that defendant’s inept attempt to lure the victim away from her

mother4 reflected an ultimate plan to inflict “substantial physical harm” on the child.

(Ibid., italics added.) When the language of a statute is clear, we are not at liberty to

reinterpret it to make it say what we might think it should say and must stop with the

meaning clearly expressed. (People v. McCullough (2013) 56 Cal.4th 589, 592.)5

       Given the broad scope of section 288, we might just find that there is substantial

evidence that defendant attempted to accomplish a kidnapping which would have led to a

lewd act. But—especially in the absence of any evidence of previous violence or sexual

offenses—we would find it difficult to say that the record contains substantial evidence

that defendant committed an act which threatened “substantial physical harm” to the

victim.


       4  Inept, as the mother was right there to observe the attempt, which involved no
force and in fact emanated from a perpetrator in a disadvantageous prone or supine
position.

       5  We are aware that Welfare and Institutions Code section 6600.1 provides that
any sexual offense against a child under the age of 14 is a “ ‘sexually violent offense’ ”
for the purposes of the Sexually Violent Predators Act, even though, as we have noted,
violations of section 288 need not involve even undesired touching. The Legislature is,
of course, free to define terms however it chooses, but we prefer not to do violence to
common understanding unless directed to do so.


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       In any event the first part of our discussion is sufficient to require reversal.

                                       DISPOSITION

       The judgment is reversed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                  HOLLENHORST
                                                                            Acting P. J.
We concur:



KING
                           J.



MILLER
                           J.




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