People v. C.D.D. CA4/2 ( 2015 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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 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
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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.
7
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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