Filed 5/16/13 Weir v. Super. Ct. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



ZACHARY L. WEIR,                                                 D063771

         Petitioner,                                             (San Diego County
                                                                 Super. Ct. Nos. MH107755, SCD241752,
         v.                                                      SCD241929 & CD242246)

THE SUPERIOR COURT OF SAN
DIEGO COUNTY,

         Respondent;


THE PEOPLE,

         Real Party in Interest.


         PROCEEDINGS in mandate after superior court ordered the involuntary

administration of antipsychotic medication. Frederick Maguire, Judge. Petition granted.



                        FACTUAL AND PROCEDURAL BACKGROUND1

         The People filed three felony complaints charging Zachary L. Weir with drug

offenses, burglary, identity-theft and other crimes. On August 9, 2012, defense counsel

expressed doubts about Weir's competency, and the court suspended criminal

1        We take judicial notice of the record in the companion appeal, D063067.
proceedings under Penal Code section 13682 and issued an order to have Weir evaluated.

Although Dr. Michael Takamura was unable to conduct a face-to-face examination of

Weir, who refused to participate, the doctor reviewed medical records and

correspondence and opined that Weir suffered from a severe mental disorder that would

impair him from fully understanding and making decisions in the action. On October 10,

the court adjudged Weir to be mentally incompetent and issued an order committing him

to Patton State Hospital and authorizing the involuntary administration of antipsychotic

medication. Weir appealed the judgment of incompetency, order for commitment, and

authorization for involuntary administration of medication (D063067).

       In this petition, Weir asserts he is currently being required to take medication

against his will. He argues the order authorizing forced administration of antipsychotic

medication is not supported by substantial evidence—that it was based solely on Dr.

Takamura's report and, except for a passing reference to the fact that Weir had taken

antidepressant and anti-anxiety medications in the past and believed they hurt (rather than

helped) him, the report contains no discussion, analysis or findings related to the need for

antipsychotic medication or other drugs.

       We requested an informal response to the petition and issued Palma notice.

(Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)

                                        DISCUSSION

       "[A]n individual has a 'significant' constitutionally protected 'liberty interest' in

'avoiding the unwanted administration of antipsychotic drugs.' " (Sell v. United States



2      All references are to the Penal Code unless otherwise specified.
                                             2
(2003) 539 U.S. 166, 178 (Sell).) The interest is so fundamental that it may be overcome

only by "an 'essential' or 'overriding' state interest[.]" (Id., at pp. 178-179.) As outlined

in Sell, the government may involuntarily medicate a mentally ill criminal defendant to

render him competent to stand trial only if the court finds important governmental

interests are at stake; forced medication will significantly further the state interests in

timely prosecution and a fair trial; alternative, less intrusive treatments are unlikely to

achieve substantially the same results; and administration of the medication is medically

appropriate. (Id. at pp. 180-181.)

       In 2004, the California Legislature amended section 1370 to comply with the

dictates of Sell. (People v. O'Dell (2005) 126 Cal.App.4th 562, 570; Pen. Code, § 1370,

as amended by Stats. 2004, ch. 486, § 2.) The statute authorizes the court to issue an

order for a treatment facility to administer antipsychotic medication against the will of

the defendant to render him or her competent to stand trial conditioned on certain

findings. (§1370, subd. (a)(2)(B).) The order for forced medication is invalid, however,

if there is no medical evidence to support it. (Carter v. Superior Court (2006) 141

Cal.App.4th 992, 1003; People v. O'Dell, supra, at p. 572.)

       The Attorney General agrees the order in this case is not supported by substantial

evidence. Specifically, the People assert the basis for the order appears to be Dr.

Takamura's report, which does not address the issue of whether Weir requires

antipsychotic medication, and there is nothing in the record to show that the trial court

heard evidence and determined that Weir lacked the capacity to make decisions about

medication as is required by statute. The Attorney General concedes that Weir is entitled


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to relief and asks us to remand the matter to the trial court for further proceedings under

section 1370, subdivision (a)(2)(B).

       Because the prosecution has conceded Weir's entitlement to relief, the law is well-

settled, and the matter requires accelerated review, we conclude a peremptory writ in the

first instance is proper. (Code of Civ. Proc., § 1088; Alexander v. Superior Court (1993)

5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American

River Hospital (2003) 31 Cal.4th 709, 724, fn. 4; Ng v. Superior Court (1992) 4 Cal.4th

29, 35.)

                                       DISPOSITION

       Let a writ of mandate issue directing the superior court to vacate that portion of its

October 10, 2012, order authorizing the involuntary administration of antipsychotic

medication to petitioner Weir, and set the matter for further hearing. This opinion is

made final immediately as to this court. (Cal. Rules of Court, rule 8.490(b)(3).)



                                                                                    IRION, J.

       WE CONCUR:



              McCONNELL, P. J.



                    HUFFMAN, J.




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