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People v. Fisher

March 27, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TODD WARREN FISHER, DEFENDANT AND APPELLANT.



(Santa Barbara County Super. Ct. No. 1068742). Frank J. Ochoa, Judge.

The opinion of the court was delivered by: Coffee, J.

CERTIFIED FOR PUBLICATION

Todd Warren Fisher, a mentally disordered offender (MDO), appeals from an order authorizing Atascadero State Hospital (ASH) to forcibly administer psychotropic medications during his treatment. Appellant contends that his due process and statutory rights were violated by the order because he did not personally waive his right to be present for the hearing and was not advised of a right to a jury trial. He also contends that the order was not supported by substantial evidence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant pleaded guilty to forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)) and was sentenced to three years in state prison. Upon release on parole, he was transferred to ASH pursuant to Penal Code section 2962 as an MDO. After an incident with a staff member, he was returned to prison for 18 months. He was then transferred back to ASH in October of 2007. Two months into this second period at ASH, the medical director requested authority to involuntarily administer psychotropic medication to appellant. The request was supported by a psychiatric evaluation signed by ASH staff psychiatrist Oghenesume Umugbe, M.D., as well as the medical director of ASH.

According to the December 2007 evaluation, appellant had been admitted two months earlier and was diagnosed as schizophrenic and polysubstance dependent with pedophilia not otherwise specified and antisocial personality disorder. Appellant was dangerous. Administration of medication was medically appropriate, likely to render him not dangerous and the least intrusive means of achieving that result. Specifically, appellant had stated he was very dangerous and said, "'[T]he last dude I fought, I hurt him bad.'" He believed he was married to God, could control people's minds and could predict the future. On one occasion he took papers from a staff member, threw them on the floor, became physically threatening and had to be restrained. He shouted at a janitor in an angry tone and approached staff members saying, "'I picture you swinging from ropes.'" He also exceeded his allotted time on the telephone and threatened force when "redirected." He said, "'You will have to use force each time to give me psychotropic medications,'" and "'I will never accept[] psychotropic medications voluntarily.'"

The prosecution moved for a judicial determination authorizing involuntary psychotropic medication pursuant to Welfare and Institutions Code section 5300*fn1 and In re Qawi (2004) 32 Cal.4th 1. On January 28, 2008, the court appointed the public defender to represent appellant. Appellant was not present and the court continued the matter to give counsel an opportunity to interview his client. Counsel appeared twice more to obtain continuances. Appellant was not present. On the first occasion, counsel indicated that the People needed to arrange witnesses. On the second occasion, counsel stated that he would "do a transport order" and "call the hospital, and if [appellant] wants to simply submit it, then we'll do that . . . ."

The matter came on for court hearing on February 25, 2007. Appellant was not present. His counsel stated, "He is in Atascadero. I'm about to issue the order to bring him down." "When I talked to him today to explain that I didn't get the order, he said -- at one point in the conversation, he said he wanted to be here. At another -- at the initial part of the conversation, he did not make that request." By stipulation, the court heard the testimony of Dr. Umugbe, received his evaluation in evidence without objection and continued the matter to allow appellant and his counsel to confer and decide whether appellant wished to appear and testify.

Dr. Umugbe attested to the truth of his evaluation at the time it was written more than two months earlier. On cross-examination, he stated that after getting to know appellant better, it was his opinion that appellant did not suffer from schizophrenia but that he suffered from a mood disorder not otherwise specified. Appellant had been taking Depakote since December when a panel approved temporary involuntary medication pending court hearing. Initially, he fought the medication and it was injected intramuscularly. However, he was now taking it in pill form, under protest, but without resistance. He was responding to the medication and his behavior had improved. Dr. Umugbe did not testify about the specific conduct described in his written evaluation, but did comment that before appellant was medicated, "He was beginning to be physically very aggressive, and we had to call for help to try to contain him, and [he] had to be going on restraint, full bed restraint, and sometimes positive restraint." The matter was continued for two days so that appellant's counsel could describe the testimony to appellant and appellant could decide whether he wished to appear.

Appellant's counsel appeared two days later and requested a further continuance, stating that he had been ill, and that when he called appellant, appellant could not come to the telephone. The court continued the matter for two more days. Counsel appeared and reported that "[appellant] said he would like to address the Court. If you could give us a date, I'll prepare a transportation order. . . . [¶] I was trying to bring it with me right now, but I just didn't finish it. [¶] . . . [¶] I'll have it finished this afternoon." No evidence or argument was offered at these interim appearances.

The hearing resumed on March 24, 2008. Appellant was present and testified. He had been at ASH five months. He said he was still taking Depakote under protest but without resistance. He denied having a mental illness. He admitted having done something "violent" when he smacked a newspaper out of the hands of a staff person, but said the man had provoked him earlier that day and that he did not assault or threaten the man. He expressed concern that the medication could cause heart disease or death. He said he was present at ASH for a hearing regarding involuntary medication, but he was not allowed to present witnesses, make a statement or question the psychiatrist.

On cross-examination, appellant said that he had been returned to prison 23 months earlier after telling a female janitor that he had not "been with a woman in quite a long time," and asking her if that made her uncomfortable. When asked if he masturbated in her presence, appellant replied, "I don't think so. I wasn't. I don't think she could have." She complained about the incident and his parole officer was called to the unit. Appellant admitted that he kicked a door out of frustration.

At the close of evidence, the court granted the prosecution's petition, finding that the criteria for involuntary administration of psychotropic ...


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