People v. Velez CA2/6

Filed 12/19/13 P. v. Velez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B250633 (Super. Ct. No. F488055) Plaintiff and Respondent, (San Luis Obispo County)

v.

LUIS VELEZ,

Defendant and Appellant.

Luis Velez appeals from the judgment entered after the trial court determined that he was a mentally disordered offender (MDO; Pen. Code, § 2962.)1 Appellant claims that he has a constitutional and statutory right to refuse medication which trumps the MDO requirement that a prisoner voluntarily comply with his or her treatment plan. (§ 2962, subd. (a)(3).) We affirm. Appellant denies that he has a mental illness and has refused to take his prescribed medication which supports the finding that the severe mental disorder cannot be kept in remission without treatment. ((Ibid.; In re Qawi (2004) 32 Cal.4th 1, 24; People v. Beeson (2002) 99 Cal.App.4th. 1393, 1399.) Appellant suffers from a severe mental disorder (paranoid schizophrenia), manifested by auditory and tactile hallucinations, and delusional thinking. In 2008 he

1 All statutory references are to the Penal Code.

was convicted of assault with a deadly weapon and battery on a peace officer and sentenced to state prison. On March 28, 2013, the Board of Parole Hearings (BPH) certified that appellant was an MDO. Appellant filed a superior court petition challenging the MDO determination and waived jury trial. (§ 2966, subd. (b).) Doctor Brandi Mathews, a psychologist at Atascadero State Hospital (ASH), testified that appellant met all the MDO criteria2 and the mental disorder could not be kept in remission without treatment. Appellant refused to attend most of his treatment groups and in June 2012 refused to take medication prescribed by his treating psychiatrist. Doctor Matthews testified that appellant was asymptomatic at the time of the BPH hearing but would suffer a relapse without treatment. The hospital did not obtain a Qawi order to involuntarily medicate appellant because he was not violent and made no threats. Voluntary Compliance with Treatment Plan Appellant argues that he has a statutory and constitutional right to refuse prescribed antipsychotic medication. (Welf. & Inst. Code, § 5325.1, subd. (c); Sell v. United States (2003) 539 U.S. 166, 178-179 [156 L.Ed.2d 197, 210-211]; Washington v. Harper (1990) 494 U.S. 210, 221 [108 L.Ed.2d. 178, 197-198]; In re Qawi, supra, 32 Cal.4th at pp. 14-16.) A court may order an MDO to take antipsychotic medication in a non-emergency situation only if the court "makes one of two findings: (1) that the MDO is incompetent or incapable of making decisions about his medical treatment; or (2) that the MDO is dangerous within the meaning of Welfare and Institutions Code section 5300." (Id., at pp. 9-10.) A similar right is afforded mentally ill persons incarcerated in