1 Filed 3/4/15 State Dept. State Hospitals v. L.F. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELL ATE DISTRICT DIVISION TWO

STATE DEPARTME NT OF STATE HOSPITALS, Plaintiff and Respondent,

v. L.F., Defendant and Appellant. E060569 (Super.Ct.No . FELSS1303948) OPINION

APPEAL from the Superior Court of San Bernardino County. James M. Dorr, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Michele Anne Cella, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, and Richard T. Wald ow and KristenT. Dalessio, De puty Attorneys General, for Plaintiff and Respondent.2 Defendant and appellant L.F., a mentally disordered offender (MDO) as defined by Penal Code section 2960 et seq., appeal s from an order authorizing plaintiff and respondent Department of State Hospitals, Pa tton State Hospital (Patton) to involuntarily administer psychotropic medications during L.F.’s treatment. He contends his due process rights have been violat ed because there is insufficient evidence to establish that (1) he meets the criteria for involuntary medi cation, and (2) he is dangerous due to his mental disorder. We reject his contentions and affirm. I. FACTS AND PROCEDURAL BACKGROUND L.F. has been diagnosed with schizophreni a, paranoid type. On March 7, 2012, he was certified as an MDO pursuant to the Ment ally Disordered Offender Act (Pen. Code, § 2960, et seq.). Beginning on November 8, 2012, he was admi nistered involuntary antipsychotic medications under an order rendered pursuant to In re Qawi (2004) 32 Cal.4th 1 ( Qawi ); however, the order was set to expire on November 8, 2013. 1 As a result, on September 13, 2013, Patton filed a verified petition seeking authorization to administer appropriate involuntary psychotrop ic medications to L.F. in the dosage and frequency deemed necessary. Counsel was ap pointed to represent L.F., and a hearing date was set, which was later c ontinued to December 13, 2013. On December 13, 2013, th e trial court conducted a Qawi hearing. Both L.F. and his treating psychiatrist, Dr. Steven Galarza, testified. According to Dr. Galarza’s testimony, he is a sta ff psychiatrist at Patt on and has been L.F.’s treating psychiatrist

1 The parties stipulated to continue the order to December 13, 2013.3 since fall 2012. L.F. was, and remains, di agnosed with schizophrenia, paranoid type, characterized by debilitating symptoms, including “a signifi cant history of delusions, hallucinations . . . causing a significant impairme nt in functioning.” L.F. “believes that people want to poison him, harm him, atta ck him, kill him.” He also suffers from delusions that he is a “descendent of some one important,” he has “millions of dollars,” the “members of the state hospital such as [Dr. Galarza] . . . are Nazis,” “judges are pirates,” and he is bein g kept against his will. Although L.F. is currently under a court order that allows Patton to involuntarily medicate him, on occasion he refuses his medi cation, requiring the staff to “check his mouth to make sure he has swallowed the me dication.” When he is on his medications, he is “less paranoid” and “less aggressive.” In contrast, when he refuses to take them, he “show[s] an increase in psychotic and aggre ssive symptoms.” Without an involuntary medication order, Patton is unable to prev ent L.F. from refusing his medication. Although Dr. Galarza acknowledged that the medications L.F. needs may have side effects, 2 the doctor explained that he has chos en medications with the least side effects. Those medications have improved L. F.’s physical well-being, causing him to lose weight. Also, L.F. has “shown a grea ter participation in groups” while under treatment of the medications. To the extent L.F. experienced any significant side effects from taking the medications, Dr. Galarza would “lower the dose and look for alternatives [or] switch his medication around.”

2 Such side effects include weight gain , causing diabetes, high blood pressure and cholesterol problems, and decr ease in white blood cell count.4 Based upon his discussions with and obse rvations of L.F., along with examination of L.F.’s records, Dr. Galarza opined that L.F. does not have the capacity to effectively weigh the risks and the benefits of medication. L.F. “would choose to stop medications,” which would “dramatically escalate” his paranoi d, aggressive symptoms. According to Dr. Galarza, even under the safety of Patton, L. F. “has been unable to control some of his behaviors.” To illustrate his concern, Dr. Ga larza described an incident that occurred on November 24, 2013, a few weeks before the Qawi hearing. When another patient stepped on L.F.’s toe, L.F. hit the patient, injuring him. Both L.F. and the other patient were evaluated by the physicians , and the other patient’s injuri es were consistent with a “hard hit.” Such assaultive behavior is consiste nt with L.F.’s paranoid feelings that he is under attack. More frequently, L.F. is verba lly assaultive to staff members, “using racial terms and verbiage that’s frankly threatening, ” while using his hand to mimic the use of a gun. Thus, Dr. Galarza opined that if the Qawi order is not extended, L.F. would present a danger to staff and other patients at Patton. According to L.F.’s testimony, he does no t want to take the medications, stating “it’s bad for my body, and I want the right to choose not to take [them].” When asked about the incident in November 2013, L.F. explained, “I can’t let people just assault me and abuse me and get away with it.” L.F. opined that Patton want ed to medicate him because they wanted to “alter” his mind. He stated: “They want to control my mind . . . and then . . . rehabilitate my mind and my brai n . . . and send me to school and teach me new things and rehabilitate me into the community.” L.F. admitted that he has schizophrenia, but he opined th at he could deal with his de lusions with counseling. If5 given the choice, he would not take the medica tions. He complained that because he had taken Zyprexa, he is now diabetic and must take insulin every day. Dr. Galarza never prescribed Zyprexa for L.F. At the conclusion of the hearing, the tr ial court found that L.F. was incompetent and a danger to others, and ordered Patton to administer the necessary psychotropic medication involuntarily to L.F. II. DISCUSSION A. Applicable Law Individuals in custody may refuse to take psychotropic medication. ( Qawi , supra , 32 Cal.4th at p. 14.) Howeve r, the right of a person committ ed as an MDO “to refuse antipsychotic drugs is qualified . . . .” ( People v. Fisher (2009) 172 Cal.App.4th 1006, 1013.) Such right of refusal may be overcome by a judicial determination that (1) the MDO is incompetent or incap able of making decisions about his or her medical treatment, or (2) the MDO is dangerous within the meaning of Welfare and Institutions Code section 5300. ( Qawi , supra , at p. 27.) “We review an order authorizing invo luntary administration of antipsychotic medication for substantial evidence. [Citation.]” ( People v. Fisher , supra , 172 Cal.App.4th at p. 1016.) B. Substantial Evidence Supports the Trial Court’s Finding that L.F. is Incompetent or Incapable of Making Decisions About His Medical Treatment L.F. argues the evidence is insufficient to sh ow that he is incompetent. We disagree.6 Judicial determination of whether an MD O is competent to re fuse antipsychotic medication focuses on three factors: (1) whet her the patient is aware of his situation; (2) whether the patient understands the be nefits and risks of the treatment; and (3) whether the patient is able to understand and knowingly, intelligently, and rationally evaluate and participate in the treatment decision. ( Qawi , supra , 32 Cal.4th at pp. 17-18.) Here, there is substantial evid ence that these factors each weigh in support of the trial court’s finding. The evidence and all reasonable inferenc es therefrom support the trial court’s determination of incapacity. Dr. Galarza testified that L.F. suffers from delusions that are “grandiose,” believing that he is a “descenda nt of someone important”; he has “millions of dollars”; Patton’s staff members are “Nazis ”; and judges are “pirates.” The doctor stated that such delusions caus e a “significant impairment in [L.F.’s] functioning.” While L.F. points out that he ack nowledged he has schizophreni a, such acknowledgment is irrelevant to whether the court’s decision is supported by substa ntial evidence. In deciding the sufficiency of the evidence, we draw all r easonable inferences from the record to support the judgment. ( People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We do not weigh the evidence or decide th e credibility of the witnesses. ( Ibid. ) Dr. Galarza testified that Patton’s staff members have attempted to educate L.F. about his need for medication and the desire d treatment course; however, L.F. remains unreceptive to the benefits of medicati on and his “insight remains limited and superficial.” While under cour t order to take his medication, L.F. refused, requiring staff to intervene and confirm that he had done so. Dr. Gala rza pointed out that L.F.7 demonstrates symptoms of paranoia and delusi ons (believing the hospital staff is out to harm him and his prescribed medication is poisoning him) while on medication, and opined that such symptoms would escalate with out the medication. Thus, L.F. benefits from the medication. Nonetheless, he argues th at he understands the benefits and risks of treatment as evidenced by his testimony that his current medications “poison” him, he contracted diabetes when he was prescribed Zyprexa, and he is willing to participate in counseling as a means of treatment. Howeve r, L.F. is not currently being prescribed Zyprexa and the side effects of his medicati ons have been more positive than negative. Moreover, L.F. believes that Patton staff want s to medicate him in order to “control” or “alter” his mind. Thus, if given the choice, he would not take the medication. Based on the record before this court, the evidence supports a finding that L.F. was unable to understand the benefits and risks of medica tion and was unable to evaluate the proposed

treatment. C. Substantial Evidence Supports the Tria l Court’s Finding that L.F. Is Dangerous L.F. asserts that complaints of foul language or conclusory statements about events that took place over a year ago are insufficient to show that he poses a “demonstrated danger.” He argues that his psychotic symptoms (irritability, grandiosity, and belief that Patton staff members are pirate s) failed to indicate a physical danger to others. Additionally, he submits that the one incident where he hit a patient who had stepped on his toe is better charac terized as an act of self-defen se rather than a product of his mental disorder. We are not persuaded.8 In order for a trial court to determine an MDO to be a danger to others, Welfare and Institutions Code section 5300 requires “t wo types of findings of dangerousness.” ( Qawi , supra , 32 Cal.4th at p. 20.) In addition to a finding of “‘demonstrated danger’ to others” as a result of mental disorder, We lfare and Institutions Code section 5300 “requires a finding of recent dangerousness as evidenced by tangible acts or threats of violence.” ( Qawi , supra , at pp. 20, 24.) “Demonstrated danger may be based on assessment of present mental condition, which is based u pon a consideration of past behavior of the person within six years prior to the time the person attempted, inflicted, or threatened physical harm upon another, an d other relevant evidence.” (Welf. & Inst. Code, § 5300.5, subd. (c ).) A finding of recent dangerou sness may consist of violent or threatening acts specifi ed in section 5300 within the ye ar prior to the commitment or recommitment. ( Qawi , supra , at p. 28, fn. 7.) The record contains subs tantial evidence of both types of dangerousness. Dr. Galarza described several incidents in whic h L.F. inflicted, attempted to inflict, and threatened to inflict substantial physical ha rm on others. The tria l court could reasonably infer that hitting another patient constitutes the infliction or attempted infliction of substantial physical harm, even if L.F. claime d self defense. According to Dr. Galarza’s expert opinion, L.F. “feels like people are focusi ng on him. He misinterprets social cues and feels he’s under attack and he will react.” Because this incident occurred merely weeks before the Qawi hearing, it occurred during his mo st recent term of commitment. The trial court could also infer that L. F.’s gesture of mimicking the use of a gun while threatening to shoot Patton’s staff me mbers was a serious threat of substantial9 physical harm. Dr. Galarza testified that “[v] ery frequently [L.F.] ve rbally assaults staff on my unit using racial terms and verbiage that’s frankly threatening.” The doctor observed that even with Patton’s 24-hour-a-d ay monitoring and safety measures, L.F. “had been unable to c ontrol some of his behaviors,” causi ng Dr. Galarza to fear that “off medications, these behaviors will be very dangerous actually.” We conclude the record contains s ubstantial evidence that L.F. poses a “demonstrated danger,” given his history of unprovoked a ssaultive behavior since being treated at Patton. III. DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST J. We concur:

RAMIREZ P.J. MCKINSTER J.