Filed 5/15/15 P. v. Herbert CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A142067
v.
PATRICIA GAYLE HEBERT,                                               (Humboldt County Super. Ct.
                                                                     No. CR1202938)
         Defendant and Appellant.


         Appellant Patricia Gayle Hebert, appeals from the judgment of the Humboldt
County Superior Court finding her to be not competent to stand trial within the meaning
of Penal Code section 1368 et seq.1 and ordering her to submit to involuntary
administration of psychotropic medication pursuant to section 1370, subdivision
(a)(2)(B)(i)(II).2 Appellant’s court-appointed counsel has filed a brief summarizing the


         1
             All subsequent statutory references are to the Penal Code.
         2
          That provision authorizes a court to “hear and determine” whether “[t]he
defendant lacks capacity to make decisions regarding the administration of psychotropic
medication”; specifically to “hear and determine whether . . . [t]he defendant is a danger
to others, in that the defendant had 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. Demonstrated
danger may be based on an assessment of the defendant’s present mental condition,
including a consideration of past behavior of the defendant within six years prior to the
time the defendant last attempted to inflict, inflicted, or threatened to inflict substantial
physical harm on another, and other relevant evidence.”


                                                             1
facts and asking this court to conduct an independent review of the record pursuant to
People v. Wende (1979) 25 Cal.3d 436 (Wende).
                                              I.
       Appellant’s counsel acknowledges that Conservatorship of Ben C. (2007) 40
Cal.4th 529 (Ben C.) held that Wende and Anders3 do not apply to appeals in proceedings
such as this that are civil in nature,4 and that due process and equal protection
requirements also do not compel application of Wende/Anders procedures to Lanterman-
Petris-Short Act proceedings, and that the Ben C. court rejected a request to extend those
procedures under the court’s inherent power to declare the rules of California appellate
procedure. Counsel argues, nonetheless, that “the California Supreme Court would, and
should, reach a different result” in this incompetency case because the underlying
criminal case is still pending. After describing the facts and requesting Wende review,
appellant’s brief advances two legal “arguments.” The first is that “DUE PROCESS
REQUIRES THAT WENDE/ANDERS PROCEDURES BE APPLIED TO AN APPEAL
FROM AN INCOPETENCY [sic] COMMITMENT AND RELATED INVOLUNTARY
MEDICATION ORDER” and the second is that, IF THIS COURT CONCLUDES THAT
WENDE/ANDERS PROCEDURES ARE NOT APPLICABLE, APPELLATE
COUNSEL, AND THIS COURT, MUST COMPLY WITH THE PROCEDURES
OUTLINED IN BEN C.”
       We decline to address appellant’s initial legal argument, which challenges the
reasoning and findings of the Supreme Court in Ben C., because it is advanced in an
unopposed Wende brief, rather than an ordinary appeal or writ proceeding, which we


       3
           Anders v. California (1967) 386 U.S. 738.
       4
        The order in this case finding appellant not competent to stand trial within the
meaning of section 1368 constitutes a judgment in a special proceeding governed by the
rules applicable to civil, not criminal proceedings. (People v. Lawley (2002) 27 Cal.4th
102, 131.) The order directing involuntary administration of psychotropic medication,
which is also governed by section 1368, is also a special proceeding civil in nature.
(People v. Stanley (1995) 10 Cal.4th 764; People v. Masterson (1994) 8 Cal.4th 965, 969-
970.)


                                              2
believe would be a more appropriate vehicle by which to challenge the conventional
application of a Supreme Court holding. Accordingly, we take instruction from the
guidelines prescribed in Ben C., which are as follows: “If appointed counsel in a
conservatorship appeal finds no arguable issues, counsel need not and should not file a
motion to withdraw. Instead, counsel should (1) inform the court he or she has found no
arguable issues to be pursued on appeal; and (2) file a brief setting out the applicable
facts and the law. Such a brief will provide an adequate basis for the court to dismiss the
appeal on its own motion. Dismissal of an appeal raising no arguable issues is not
inconsistent with article VI, section 14 of the California Constitution requiring that
decisions determining causes ‘be in writing with reasons stated.’ Nothing is served by
requiring a written opinion when the court does not actually decide any contested issues.”
(Ben C., supra, 40 Cal.4th at p. 544, fns. omitted.)
       In a footnote, the Ben C. court stated that “[t]he conservatee is to be provided a
copy of the brief and informed of her right to file a supplemental brief.” (Ben C., supra,
40 Cal.4th at p. 544, fn. 6.) Counsel for appellant states that he has informed appellant of
this right and she has not filed a supplemental brief.5 Also in a footnote, the Ben C.
opinion states that the appellate court “may, of course, find it appropriate to retain the
appeal.” (Id. at p. 544, fn. 7.)
       As we see it, Ben C. provides authority for us to either dismiss this appeal on our
own motion without providing Wende review or to provide Wende review and affirm the
judgment or, if the record presents an arguable issue, order further briefing. Given the
intrusion on personal autonomy and side effects that may result from the involuntary
administration of psychotropic drugs (which we described nearly three decades ago in
Riese v. St. Mary’s Hospital & Medical Center, supra, 209 Cal.App.3d 1303, we elect the
latter course.

       5
        Appellate counsel states that, as he interprets Ben C., “this court has an
independent obligation to inform appellant of her right to file a supplemental brief.”
Counsel cites no authority for his “interpretation” of Ben C., however, nor explains what
benefit would accrue from judicial repetition of the advice received from counsel.


                                              3
                                             II.
       As indicated by the fact that the original and augmented clerk’s transcripts contain
2,106 pages bound in 7 volumes, the proceedings below are somewhat Dickensian. At
the time appellant’s competency was placed in doubt, appellant was representing herself
in four criminal cases that had not been formally consolidated but were being litigated
together. Three of the cases involved misdemeanor offenses (the offenses charged in the
three complaints were one or more counts of trespassing (§ 602, subd. (m)), resisting an
officer (§ 148, subd. (a)(1)), and disobeying a court order (§ 166, subd. (a)(4)). The
felony charged in the fourth case was willful and malicious harassment of an individual
(§ 646.9, subd. (b)). The district attorney had moved to consolidate the four cases, but
that motion was mooted by the suspension of criminal proceedings as a result of the
question of competency and never ruled upon. As a result, the three complaints charging
only misdemeanors were treated as appeals to the appellate department of the superior
court, not to this court.6 We do not consider it necessary to relate the facts pertinent to
the underlying criminal cases.
       The proceedings pertinent to the orders finding appellant not competent to stand
trial and authorizing involuntary administration of psychotropic medication were the
following.
       On September 16, 2013, the trial court, on its own motion, declared a doubt as to
appellant’s competency to stand trial pursuant to section 1368. Appellant did not want to



       6
         Appellant’s notice of appeal states she is appealing the court’s ruling in four
different criminal cases; Nos. CR1202938, CR1204623, CR1202190, and CR1103561.
The record indicates the first case involves a felony charge. Therefore the appeal in that
matter is properly before this court. (See § 1235, subd. (b).) However the latter three
cases involve misdemeanor charges and appeals from misdemeanor cases are within the
jurisdiction of the appellate division of the superior court. (See § 1466.) Counsel for
appellant states, and this court has confirmed, that the Appellate Division of the
Humboldt County Superior Court is considering or has considered appeals by appellant in
the three misdemeanor cases. Accordingly, our ruling in this case governs only the
felony case; No. CR1202938.


                                              4
be represented by counsel, even with respect to competency, and filed a Marsden
motion.7 The motion was heard and denied on February 20, 2014.
       On April 28, 2014, appellant’s attorney waived the right to a jury trial on the issue
of competency. After a hearing on that same date based on written reports, the court
found appellant not competent to stand trial. The next day, the court issued a Judgment
of Mental Incompetence and ordered that evaluations be prepared to determine the
appropriate placement. The court also ordered a psychiatric evaluation of appellant, who
was 48 years of age, in order to determine whether the involuntary administration of
psychotropic medication should be authorized.
       On May 23, 2014, the court found that the appropriate placement was Napa State
Hospital and that appellant lacked capacity to make decisions regarding antipsychotic
medication and found that if such medication was not administered it was probable
appellant would suffer serious harm. The court also found appellant was a danger to
herself and was charged with a serious crime against person or property. On the basis of
those findings, the court ordered the involuntary administration of antipsychotic
medication.
       Appellant filed a notice of appeal on July 3, 2014.8
                                            III.
       The evidence pertinent to the issues of competency and the administration of
psychotropic drugs essentially consisted of (1) the Forensic Psychiatric Evaluation of
appellant by Robert E. Soper, M.D., and a supplemental evaluation, both dated February
5, 2014; (2) the report to the court of Jason G. Roof, M.D., who met with appellant in
2014; and (3) the May 5, 2014 evaluation of appellant by Staff Psychiatrist Jennifer
Wilson, M.D., of the Humboldt County Department of Health and Human Services.


       7
           People v. Marsden (1970) 2 Cal.3d 118.
       8
         The trial court did not issue a formal order of commitment until July 16, thirteen
days after the filing of the notice of appeal. However, since the court’s manifest intention
to issue that order was apparent long before the filing of the notice of appeal, we deem
the notice of appeal timely rather than premature.


                                             5
       Dr. Soper noted that appellant’s abnormal behavior over a period of years was
“well documented in copious police and victim documents” indicating that she “has
persistently harassed, been verbally abusive and outright threatening to numerous parties”
in the community. For example, one of appellant’s victims, Jane Shor, owned a home at
which her deceased husband, Mr. Morgan, had allowed appellant to store her belongings.
When Morgan died and appellant was told she would have to remove her belongings she
refused to do so, stating she would “burn down the home” of anyone who removed her
belongings. She began harassing the parents of Morgan, claimed he was not dead but
“just missing,” and posted numerous notices on the property asserting her right to be on
the property and making threats. Dr. Soper also noted that appellant both questioned
whether Morgan was actually dead and suggested his wife had killed him. Videotapes
made by a friend of Shor, provided to law enforcement authorities, showed appellant
physically assaulting her. In May 2011, appellant began constructing barricades of the
house, and placed her non-operational vehicle on the premises. The victim reported that
she was unable to use her home for fear of appellant “and her erratic and irrational
behavior.”
       Shor stated that a restraining order against appellant had issued in Siskiyou
County, and Tehama County had issued a warrant relating to appellant holding at
gunpoint the owner of a ranch in that county. In a letter to Humboldt law enforcement
authorities, the rancher stated that it took 18 months to remove appellant from the
property, after she claimed ownership of the property and changed the locks on the doors.
       Dr. Soper stated that appellant’s “copious” handwritten legal filings (which
account for the unusual size of the clerk’s transcript, and speak for themselves)
“demonstrate a thought style which is vague, circumloquacious, and focused on a sense
of persecution. While full of legalese, [these materials are] so viscous and rambling in its
verbiage that it is hard to understand.” Dr. Soper felt there was “a clear delusional
quality” to appellant’s interpretation of the laws and thoughts, many of which were
“bizarre.” For example, appellant “suggests” that one of her victims “is a clearing house



                                             6
for a sex change operation for law enforcement system,” and that the victim “has a
number of surgically altered ‘look a likes’ positioned in the community.”
       In Dr. Soper’s opinion, appellant “appears to be not competent to stand trial” and
“in need of further neuropsychiatric intervention” although “[t]here is not current
treatment as the [appellant] does not recognize there is any problem.” He diagnosed
appellant as suffering “Delusional Disorder NOS [i.e., not otherwise specified]—
severe,” with “schizotypal traits.”9
       According to Dr. Soper, “[a]ntipsychotic medications are not only medically
appropriate” for appellant, but “they are medically necessary.” He also believes appellant
“is not medically competent to refuse medications as she does not understand the risks
and benefits of using them,” that antipsychotic medications are necessary to restore
appellant to competence, and that appellant “would reasonably be considered gravely
disabled under [Welfare and Institutions Code section 5150, a provision of the
Lanterman-Petris-Short Act]” and “[s]he has relied on her abuse of others to maintain
shelter for herself.” According to Dr. Soper, “[t]he benefits of treatment with
antipsychotic medications far outweigh the risks. Alternative treatments are unlikely to
be sufficient to restore [her] to competence.”
       Jason G. Roof, M.D., a clinical professor in the Department of Psychiatry and
Behavioral Science at the University of California at Davis, interviewed appellant while
she was detained at the Humboldt County jail. She did not acknowledge his presence or
that of the two officers who brought him to her quarters; except that “in an irritable,
angry manner [she] complained that she had no proof who I was and that she had been
presented with no court order regarding my appointment.” When Dr. Roof offered to
provide his court appointment form, she paused for a length of time, refused to answer
the question, and “began a bizarre narrative about how she was also a medical
professional but went to ‘a different college.’ ” Telling Dr. Roof that people with his


       9
        According to the Oxford English Dictionary, “schizotypal” is “a personality type
in which schizophrenia is potentially or actually present.”


                                              7
“form of medical training/belief system would be unable to adequately understand her.
She would not further describe what type of medical training/belief system she belonged
to or why western medicine/psychiatry would be ineffective in evaluating her capacity to
stand trial. She remained angry, fearful, and guarded. It was clear that she perceived me
as a threat. She remained greatly concerned that I was misrepresenting myself.”
       Appellant became increasingly guarded and hostile and accused deputy sheriffs of
putting her in danger, and failing to provide warning of Dr. Roof’s visit. After appellant
began talking about matters unrelated to Roof’s repeated requests that she agree to be
interviewed, “[s]he irritably stated that she had decided that we were not ‘a good match’
and she would therefore not participate in an interview.”
       On the basis of his interview and various documents provided him regarding
appellant’s behavioral history and the criminal charges against her, as well as the
hundreds of handwritten documents appellant had filed with the court, Dr. Roof
concluded that appellant “has suffered from a primary psychotic disorder for many years
and the manifestations of her psychosis have negatively impacted a number of individuals
in various communities.” In his opinion, appellant “holds multiple delusional beliefs
with clear paranoid themes,” such as “persecution, being in grave danger from others
which necessitates ‘Safer House’ residence.”
       In Dr. Roof’s medical opinion, appellant was more likely than not “unable to
understand the nature of the criminal proceedings which she faces and could not assist
counsel in the conduct of a defense in a rational manner . . . [and] has exhibited
fundamental and ongoing misunderstanding of her legal situation. Additionally, she has
been unable to assist her attorney instead stating that she wants to represent herself.
[Appellant] has expressed belief that the court lacks jurisdiction to pursue the current
legal action and to order an evaluation of her competency to stand trial.”
       Dr. Roof also opined, “with reasonable medical certainty,” that appellant “did pose
an increased acute risk of danger to herself and others. While she did not specifically
report active suicidal or homicidal ideation, her active psychosis and increased level of
hostility increase her risk of violence toward others.”


                                              8
       In light of her schizophrenia, Dr. Roof believed appellant “will require an
antipsychotic medication for treatment of her symptoms and restoration to competency”
but it is “probable she will be unwilling to consent” and “lacks capacity to make
decisions about such medications and will require an order to involuntarily medicate.”
       When she interviewed appellant at the Humboldt County Correctional Facility, Dr.
Jennifer Wilson, the staff psychiatrist of the Humboldt County Department of Health and
Human Services, was aware that appellant was charged with felony stalking,
misdemeanor trespass, resisting an officer, and contempt of court, and had read Dr.
Soper’s report. As was the case with Dr. Soper and Dr. Roof, appellant refused to
respond to Dr. Wilson’s questions. After a while, however, “she began to verbalize a
long confusing list of incidents in which she felt that she was being harmed and rights
were violated by law enforcement and judges. She was unable to stop talking for a long
time, and asked multiple times for me to contact Jerry Brown, Diane Feinstein, and
Donald Trump on her behalf because ‘they are my family and will know what to do to
help me.’ ” Appellant also stated that “she owns 50 million dollars worth of gold . . .
amongst her many properties and ranches throughout Nevada and California,” “that she
believes that the correctional staff has been ‘moving the gold around,’ ” “that she has
currently hundreds of employees who depend on her,” and that she does not feel safe in
the Humboldt County jail.
       Like doctors Soper and Roof, Dr. Wilson concluded that appellant suffered a
“psychotic disorder,” “lacks the ability to participate in her legal case,” “is not capable of
participating in medication decision-making and that [appellant] suffers from severe
delusional disorder not otherwise specified.”
                                             IV.
       As counsel for appellant says, in order to find a person not competent to stand
trial, the trier of fact is required to find that the presumption of competence has been
rebutted by a preponderance of the evidence and the appellate court, viewing the
evidence in the light most favorable to the prevailing party, must “ ‘ “ ‘ensure the
evidence is reasonable, credible, and of solid value.’ ” ’ ” (People v. Clark (2000) 82


                                              9
Cal.App.4th 1072, 1082.) In the context of competency, substantial evidence “has been
defined as evidence that raises a reasonable doubt concerning the defendant’s
competence to stand trial.” (People v. Welch (1999) 20 Cal.4th 701, 738; see also People
v. Johnson (1980) 26 Cal.3d 557, 576-577.)
       With respect to the validity of the order authorizing involuntary administration of
antipsychotic medication we look to section 1370. Where, as here, the trial court issued
the order on the ground that a defendant unwilling to consent to administration of such
medication “lacks capacity to make decisions regarding antipsychotic medication, the
defendant’s mental disorder requires medical treatment with antipsychotic medication,
and, if the defendant’s mental disorder is not treated with antipsychotic medication, it is
probable that serious harm to the physical or mental health will result,” the applicable
provision of section 1370 is subdivision (a)(2)(B)(i)(I). Under that provision, the validity
of the order “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 the defendant has a diagnosis of mental disorder does not alone establish
probability of serious harm to the physical or mental health of the defendant.”
       Having reviewed the entire record, we conclude that the psychiatric evaluations
and diagnoses of appellant by Doctors Soper, Roof, and Wilson, and their expert
opinions, provide substantial evidence that (1) raises a reasonable doubt concerning
appellant’s competence to stand trial, and (2) establishes that appellant is presently
suffering adverse effects to her mental health and lacks capacity to make decisions
regarding the administration of antipsychotic medication. For those reasons, we also
conclude that the orders finding appellant not competent to stand trial and authorizing
involuntary administration of psychotropic medication, and the judgment incorporating
those orders, are supported by substantial evidence.
       We also find that appellant was at all material times represented by competent
counsel who acted to protect her rights and the superior court had jurisdiction to issue the



                                             10
orders finding appellant not competent to stand trial and authorizing involuntary
administration of psychotropic medication.
                                     DISPOSITION
       For the foregoing reasons, the orders finding appellant not competent to stand trial
and authorizing involuntary administration of psychotropic medication, and the judgment
entered thereon, are affirmed.



                                                  _________________________
                                                  Kline, P.J.


We concur:


_________________________
Richman, J.


_________________________
Stewart, J.




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