P. v.
Filed 6/28/12 P. v. Hopkins CA1/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
ALLYN HOPKINS,
Defendant and Appellant.
A133355
(Del Norte County
Super. Ct. No. 92-187-X)
Defendant
challenges an order authorizing involuntary administration of
him. We conclude that the prosecution
adequately proved defendant is a danger to others without medication, and
affirm the judgment.
Defendant has a lengthy, essentially
unrelenting history of violent criminal
conduct, substance abuse, mental disorders, and psychiatric hospitalizations. He was first committed to juvenile hall at
age 15 for three counts of battery and making false bomb threats. He was convicted in 1991 of attempted murder
and assault with a deadly weapon on a California Youth Authority correctional
officer (Pen. Code, §§ 664/187, 245, subd. (c)). Subsequently, while under the influence of auditory
hallucinations, he assaulted a cell mate with a weapon, smashed his head to the
floor, and attempted to strangle him with a rope. In 1994, he was found not guilty by reason of
insanity of two counts of possession of a weapon by a prisoner and one count of
assault with a deadly weapon by a prisoner (Pen. Code, §§ 4502, subd. (a),
4501). His insanity plea was vacated in
2004, and he plead guilty to the charges.
Defendant
was subsequently found to be a mentally disordered offender (MDO) pursuant to
Penal Code section 2970, and committed to Coalinga
State Hospital
in December of 2009.
name="_ftnref2" title="">[2] Thereafter, he was repeatedly found to meet
the criteria for involuntary treatment as an MDO through November of 2011. Most recently, defendant was found to suffer from
a severe mental disorder that renders him a substantial danger of physical harm
to others, and was ordered recommitted to Coalinga
State Hospital
until November of 2011. An order was
also granted to administer involuntary psychotropic medication to defendant.
On July 20, 2011, a petition for an
order to further extend defendant’s commitment as an MDO was filed, along with
a subsequent request to extend the order to
administer involuntary psychotropic medication to
defendant. Defendant waived a jury trial
on the MDO extension petition and submitted the matter on the extension
evaluation report submitted by the Coalinga
State Hospital
forensic psychologist. The trial court
found that defendant meets the criteria specified in section 2962, subdivision
(a), for continued commitment as an MDO, and granted the petition. Defendant’s commitment was extended until November 26, 2012.
A
the request to extend the order to administer psychotropic medication to
defendant, on the basis that he is a continued danger to others. The prosecution offered expert testimony from
Dr. Joseph Cook, defendant’s current treating psychiatrist at Coalinga
State Hospital. Dr. Cook reviewed defendant’s recent
psychiatric records and forensic evaluations.
Dr. Cook
testified that the reports indicate recent assaultive behavior by defendant.
and kicked a peer, and “stuck him with a sharp object,” that was recovered by
staff. After defendant was transferred
to Dr. Cook’s unit, on June 4, 2011,
he began “slamming doors” in the hallway, and when confronted by a peer “began
hitting him.”
On June
27th, in the dining room defendant hit someone several times in the head and
neck. On July 11th, during an argument
with a peer “regarding television,” defendant assumed a “fighting stance” until
staff intervened. On July 18th, he advised
staff that “someone was ‘mad-dogging him’ and . . . he would have to
do something about it.” On one occasion
defendant became angry that his medication was changed to crushed or liquid
form – to prevent him from placing it in his cheek, and subsequently spitting
it out – and “kicked the door to the psychologist’s office.”
Dr. Cook
also provided a description of defendant’s reported symptoms: both manic and
depressive disorders, manifested by extremely hostile and aggressive behavior;
auditory hallucinations; and, both paranoid and delusional thinking. Dr. Cook diagnosed defendant as suffering
from “severe psychotic disorder along with a mood disorder,” “schizoaffective
disorder, bipolar type,” along with antisocial personality disorder. Defendant is on numerous medications to treat
both the psychotic and mood disorders: the anti-psychotic medication Haldol to
treat his auditory hallucinations and paranoid/delusional thinking; lithium and
Depakote act as mood stabilizers; anti-depressant medication; Cogentin to treat
side effects from the anti-psychotic medications; Klonopin to reduce anxiety
and frustration; and, “intramuscular back-up agents.”
Dr. Cook
testified that the medication regimen has been effective in reducing
defendant’s paranoia, his delusional thinking, and auditory hallucinations,
diminishing his aggressiveness, keeping his mood stable to moderate his manic
and depressive episodes, and “reducing dangerousness” due to “schizoaffective
disorder.” If defendant stopped taking
the medication he “would become extremely paranoid,” irritable and angry, with
a loss of impulse control. His degree of
aggression and violence would immensely increase. Dr. Cook offered the opinion that without the
prescribed medication defendant would become “extremely dangerous” to others
within a day or two. He also testified
that defendant vacillates between agreeing to “take these medications,” and
becoming oppositional to the extent that he has “cheeked” and expelled the
medications.
Defendant
testified that he suffers side effects from the medication:
concentration, dry throat and mouth, and fatigue. He has voluntarily taken his prescribed
medication, despite the side effects, except when he was previously “involved
with Christian Science” while at Vacaville Hospital. Defendant recognizes that he suffers from a
mental illness, and has made a conscious decision to continue to take the
medications, which he agreed are “helpful” to him.
At the
conclusion of the hearing the trial court found that defendant represents a
“substantial danger” to the “life or physical safety of others” if he is not
ordered to take his medications. The
court granted the request to continue the involuntary administration of
psychotropic medication to defendant until September 9, 2012, and this appeal
followed.
Defendant
argues that the “order for involuntary medication” is “not supported by
substantial evidence and must be reversed.”
He points out that Dr. Cook’s expert opinion testimony was based on
“hearsay statements” of “hospital records and other information” gained from
looking at reports or discussions with staff, rather than personal
knowledge. He submits that while the
psychiatrist was justified in considering the hearsay information as “the basis
of his opinion,” the admission of the “details contained in the hospital
materials” was inadmissible for the truth of the matter to prove the element of
“recent incidents of violence” necessary to sustain the continuation of
involuntary administration of medication.
Defendant claims there is no hearsay exception on which to base
admission of the facts of the “incidents of violence” articulated in the
medical records, and without the hearsay evidence the order for continuation of
involuntary medication does not have adequate support in the record. He adds two additional contentions: first,
that his voluntary compliance with treatment obviates the need for the order;
and second, that “less intrusive alternatives” were not considered.
We preface
our analysis by observing that defendant’s commitment as an MDO does not mean
that he is incompetent to participate in his own medical decisions. (In re
Qawi (2004) 32 Cal.4th 1, 24 (Qawi).) “[T]he coercive administration of
[antipsychotic] medication, with its potentially serious side effects, imposes
a significant additional burden on the MDO’s liberty interest.” (In re
Calhoun (2004) 121 Cal.App.4th 1315, 1353.) “The
right to refuse necessary medical treatment, including antipsychotic drugs, is
a liberty interest that is protected by the due process clause of the Fifth
Amendment of the United States Constitution.
[Citation.] The right of a
competent adult to refuse antipsychotic drugs is also protected by the common
law and article I, section 1 of the California Constitution.” (People
v. Fisher (2009) 172 Cal.App.4th 1006, 1012–1013.) “The right of privacy guaranteed by the
California Constitution, article I, section 1,” which “ ‘guarantees to the
individual the freedom to choose to reject, or refuse to consent to, intrusions
of his bodily integrity[]’ [citation]” “clearly extends to the
right to refuse antipsychotic drugs.” (
176, 183; People v. McDuffie (2006)
144 Cal.App.4th 880, 886–887.)
The right
of a person committed as an MDO “to refuse antipsychotic drugs is qualified[,]
and may be overcome in nonemergency situations by a judicial determination
either that the person is incompetent or that he or she is dangerous within the
meaning of [Welfare and Institutions Code] section 5300: ‘[A]n MDO can be compelled to be treated with
antipsychotic medication under the following nonemergency circumstances: (1) he is determined by a court to be incompetent to refuse medical treatment; (2) the
MDO is determined by a court to be a
danger to others within the meaning of Welfare and Institutions Code section
5300.’ ” (People v. Fisher, supra, 172 Cal.App.4th 1006, 1013,
“We review
an order authorizing involuntary administration of antipsychotic medication for
substantial evidence. [Citation.] In the case of the MDO, the order must be
supported by evidence that either the MDO is incompetent to refuse medical
treatment or that the MDO is a danger to others within the meaning of [Welfare
and Institutions Code] section 5300.
[Citation.] [Welfare and
Institutions Code s]ection 5300 requires a particularized showing that the
person is a demonstrated danger and that he or she was recently dangerous. [Citation.]
In the case of an MDO, the commitment offense may establish demonstrated
dangerousness and recent dangerousness consists of ‘violent or threatening acts
specified in section 5300 within the year prior to the commitment or
recommitment.’ [Citation.]” (People
v. Fisher, supra, 172 Cal.App.4th 1006, 1016.) In our review we draw all reasonable
inferences and resolve all conflicts in favor of the judgment. (People
v. Martin (2005) 127 Cal.App.4th 970, 975; People v. Valdez (2001) 89 Cal.App.4th 1013, 1016;
830.)
I. The Admissibility of the
Evidence Offered in Support of the Involuntary Medication Order.
The focus
of defendant’s challenge to the involuntary medication order is upon the
testimony of his treating psychiatrist at Coalinga State Hospital, Dr. Cook,
who relied on hearsay references in reports to numerous incidents of recent
assaultive behavior by defendant. “The
law governing this issue is well settled.
‘Expert testimony may . . . be premised on material that is
not admitted into evidence so long as it is material of a type that is
reasonably relied upon by experts in the particular field in forming their
opinions. (Evid. Code, § 801, subd. (b);
[citations].) . . . [¶]
. . . And because Evidence Code section 802 allows an expert witness
to “state on direct examination the reasons for his opinion and the matter
. . . upon which it is based,” an expert witness whose opinion is
based on such inadmissible matter can, when testifying, describe the material
that forms the basis of the opinion.
[Citations.]” (
608.) “An expert may generally base his
opinion on any ‘matter’ known to him, including hearsay not otherwise
admissible, which may ‘reasonably . . . be relied upon’ for that
purpose.” (People v. Montiel (1993) 5 Cal.4th 877, 918.) “So long as this threshold requirement of
reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion
testimony.” (People v. Gardeley (1996) 14 Cal.4th 605, 618; see also
142; In re Fields (1990) 51 Cal.3d
1063, 1070.)
But
“ ‘[w]hile an expert may state on direct examination the matters on which
he relied in forming his opinion, he may not testify as to the details of such
matters if they are otherwise inadmissible. . . .’ [Citation.]”
(People v. Coleman (1985) 38
Cal.3d 69, 92.) The expert’s ability to
relate hearsay statements in explaining the basis of his or her opinions has
always been limited by Evidence Code section 352. (People
v. Gonzales (2011) 51 Cal.4th 894, 923.)
Though experts are “given considerable leeway as to the material on
which they may rely, the rules governing actual communication to the jury of
any hearsay matter reasonably relied on by an expert are more
restrictive.” (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1524.) The basis of this restriction is Evidence
Code section 352, which limits the general admissibility of hearsay basis
evidence under Evidence Code section 802.
(People v. Gardeley, supra, 14
Cal.4th 605, 618–619.) “[P]rejudice may
arise if, ‘ “under the guise of reasons,” ’ the expert’s detailed
explanation ‘ “[brings] before the jury incompetent hearsay
evidence.” ’ [Citations.]” (People
v. Montiel, supra, 5 Cal.4th 877, 918–919.) “Nor may a
court rely on hearsay as related by an expert as the basis for his or her
opinion as independent proof of the facts asserted in the hearsay statement:
‘[A] witness’s on-the-record recitation of sources relied on for an expert
opinion does not transform inadmissible matter into “independent proof” of any
fact. [Citations.]’ [Citations.]”
(People v. Baker (2012) 204
Cal.App.4th 1234, 1246.)
“ ‘[D]isputes
in this area must generally be left to the trial court’s sound judgment.’ [Citation.]”
(People v. Catlin (2001) 26
Cal.4th 81, 137.) A trial court
“ ‘ “has considerable discretion to control the form in which the
expert is questioned” ’ ” to prevent the admission of incompetent
hearsay and the associated risk of improper consideration of the evidence
“ ‘ “as independent proof of the facts recited therein.” [Citation.]’
[Citation.]” (
608.) The trial court’s ruling “will not
be upset unless there is a clear showing of abuse of discretion.” (People
v. Dean (2009) 174 Cal.App.4th 186, 199.)
Upon
defendant’s objection the trial court limited the consideration of the reports
of recent violence to providing the basis for the treating psychiatrist’s
opinion. The reports were reliable,
derived as they were from hospital records and staff observations. (See
People v. Dean, supra, 174 Cal.App.4th 186, 196; Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 743.) “Psychiatrists, like other expert witnesses,
are entitled to rely upon reliable hearsay, including the statements of the
patient and other treating professionals, in forming their opinion concerning a
patient’s mental state.
[Citations.] On direct
examination, the expert witness may state the reasons for his or her opinion,
and testify that reports prepared by other experts were a basis for that
opinion.” (People v. Campos (1995) 32 Cal.App.4th 304, 307–308 (
formulating their opinions is not testimonial because it is not offered for the
truth of the facts stated but merely as the basis for the expert’s
opinion.” (People v. Cooper (2007) 148 Cal.App.4th 731, 747.)
Nor did the
court abuse its discretion by admitting the hearsay information as a basis for
the psychiatrist’s opinion. (Cf.,
308.) Defendant was tried by the court,
rather than a jury. We must assume the
trial court considered the testimony solely for the proper purpose of assessing
the expert’s credibility, and not as independent proof of the facts contained
therein. (People v. Martin, supra, 127 Cal.App.4th 970, 977.) In rendering its decision the court noted the
“hearsay nature” of some of the testimony, but found it “reliable
hearsay.” We agree, and find that
admission of the evidence relied on by Dr. Cook to support his opinion was not
error.
As for
proof of recent acts of violence as required to justify an involuntary
medication order, the court was presented with additional supporting admissible
evidence. In addition to defendant’s
lengthy history of violence that demonstrated his dangerousness, evidence of
violent or threatening acts within the year prior to the recommitment was
presented, even without consideration of the hearsay information. Some of the incidents of violent behavior
were personally reported by defendant to Dr. Cook or staff, and thus were
properly considered as admissions by the trial court to establish
dangerousness. (See People v. Townsend (2010) 182 Cal.App.4th 1151, 1156;
1287, 1299.) Dr. Cook also personally
observed defendant yell and kick the door of the psychologist’s office when he
became angry due to the change in form of his medications to prevent disposal
through expulsion.
II. The Evidence to Support the
Involuntary Medication Order.
The
admissible evidence, considered in its entirety, convincingly supports the
order to continue the involuntary administration of psychotropic medication to
defendant. Defendant’s extensive,
protracted violent history and continuing assaultive or threatening acts
adequately establish that he is dangerous within the meaning of Welfare and
Institutions Code section 5300. Dr.
Cook’s opinion that defendant is dangerous is supported not only by the myriad
of reported instances of anger and violence, but his personal observations and
treatment of defendant. He diagnosed
defendant as suffering from severe schizoaffective disorder, bipolar type, and
antisocial personality disorder, with symptoms that include paranoid and
delusional thinking, auditory hallucinations, racing thoughts, very loud and
pressured speech, extremely hostile and aggressive behavior, anxiety and
frustration. Dr. Cook testified that the
prescribed medications have been effective in decreasing defendant’s distress,
aggression, hallucinations, and lack of impulse control. He added that without the medications
defendant would become extremely paranoid, irritable, angry, and aggressive,
and his level of “violence would go extremely high.”
Defendant
maintains that the “involuntary treatment”
was not established as a “medical necessity,” given his voluntary “compliance”
with his medication regime. His argument
suffers from two flaws. First, the
standards articulated by the California Supreme Court in Qawi do not demand proof that the MDO has refused to take
medication. Instead, the determinative
and essential finding is defendant is a demonstrated danger and that he or she
was recently dangerous. (
1315, 1354.) Second, the record does not
establish that defendant is consistently compliant with his prescribed course
of therapy. Dr. Cook testified that
defendant “has a great deal of ambivalence about his medications.” According to Dr. Cook, defendant will
cooperate on some occasions, but the “following day” may state, “I don’t want
to take medications.” Dr. Cook further
testified that defendant “cheeked” medication, meaning that instead “of
swallowing it,” he “would keep it alongside his cheeks or gums,” then walk away
and “spit it out.” The record proves
that defendant cannot be consistently relied on to take his medication
voluntarily, and is dangerous unless required to do so.
Finally,
defendant claims the prosecution failed to establish that “less intrusive
alternatives” to antipsychotic medication were considered. In Sell
v. United States (2003) 539 U.S. 166, 180–181, the United States Supreme
Court held antipsychotic drugs may be involuntarily administered to a mentally
ill criminal defendant in order to render him competent to stand trial only if
four factors were present: (1) “
stake”; (2) taking account of less intrusive alternatives, involuntary
medication will “significantly further”
the concomitant state interests of timely prosecution and a fair trial; (3)
“involuntary medication is necessary
to further those interests”; and (4) “administration of the drugs is
at p. 186; Carter v. Superior Court
(2006) 141 Cal.App.4th 992, 1000; People
v. O’Dell (2005) 126 Cal.App.4th 562, 569.)
The court in Sell
“acknowledged that the question of involuntary medication to restore an
accused’s ability to stand trial is different from involuntarily medicating an
inmate who is dangerous to himself or others when the refusal to take the
medication puts his health gravely at risk.”
(Carter, supra, at p.
1000.) The consideration of less
intrusive alternatives has not been found to be a requirement when determining
the propriety of involuntary administration of medication to an inmate who is
dangerous to others. (See
Cal.App.4th 1040, 1049, fn. 4.) In any
event, as we read the record less intrusive alternatives were taken into
account in defendant’s case. Dr. Cook
confirmed that without the current “psychiatric medications” defendant would be
“extremely dangerous.” He also testified
that defendant’s medication was adjusted to address his complaints of
“restlessness” as an adverse side effect.
We conclude
that the requisite finding of dangerousness is supported by admissible,
substantial evidence. Accordingly, the
judgment is affirmed.
__________________________________
Dondero,
J.
We
concur:
__________________________________
Marchiano,
P. J.
__________________________________
Margulies,
J.
name="_ftn1" title="">[1] Part of our recitation of the pertinent facts is
taken from our prior opinion in People v.
Hopkins ((Aug. 23, 2011, A130130) [nonpub. opn.]), which is included in the
record on appeal.
name="_ftn2" title="">[2] All further statutory references are to the Penal
Code unless otherwise indicated.
