Tuesday, January 29, 2019
Court of Appeal:
Fifth District Says Judge’s Use of Incorrect Evidentiary Standard in Finding Violent Sexual Predator Incapable of Refusing Treatment Not Harmless
By a MetNews Staff Writer
An order that an institutionalized sexually violent predator continue to submit involuntarily to administration of antipsychotic drugs has been reversed by the Fifth District Court of Appeal because the judge who issued the order applied the wrong evidentiary standard, with the justices rejecting the contention of the Office of Attorney General that in light of medical evidence, the error is harmless.
According to that testimony, appellant Ardell Moore Jr., lacks the capacity to make competent decisions for himself as to his treatment and, if not medicated, would seek out and attempt to rape women. He has a history of child molestation and had raped four women while in his twenties.
In the course of the opinion, filed Friday and not certified for publication, Presiding Justice Brad R. Hill declared that although the matter is a civil one, the subject of a hearing under the Sexually Violent Predators Act (“SVPA”) has not only a statutory right to court-appointed counsel, but a due-process right to one who is competent.
Moore has been held at a state hospital at Coalinga, in Fresno County, since 2006 in connection with a mental condition manifesting itself in sexual violence. The hospital in 2017 made the latest of its successive motions through the years for renewal of an order, first made in 2012, authorizing the administration of medication over Moore’s protest.
Wrong Standard Identified
At a Jan. 29, 2018 hearing on the motion, it was Moore’s own counsel, a deputy public defender, who told retired Fresno Superior Court Judge James R. Oppliger, who was sitting on assignment, that the proponent’s burden was to produce “substantial evidence.”
After Oppliger granted the motion, Moore appealed on the ground that the burden is actually a showing by clear and convincing evidence.
The Office of Attorney General argued that the issue was forfeited. Moore’s lawyer on appeal, Linda Zachritz, asserted that if there was a forfeiture—which she disputed—there should be a reversal based on incompetence of counsel.
Hill said the court would not decide if the issue was forfeited, either based on a failure to object or invited error, declaring:
“[R]egardless of the basis for claiming forfeiture we will exercise our discretion to review the allegation of error in this case.”
Due Process Right
“We note that, were we to find the issue forfeited, we would have proceeded to consider the issue under appellant’s ineffective assistance of counsel claim.”
Hill pointed to the 2013 holding by the Fourth District’s Div. Two in People v. Hill that where a civil commitment is sought under the SVPA, the subject has a due process right to a Marsden hearing—generally reserved for criminal cases—to seek replacement of appointed counsel.
In a footnote, Hill, pointed to authorization in Probate Code §1471 for appointment of counsel in SVPA proceedings, and said:
“[W]e have little doubt the involuntary medication of a detained individual is significant enough of a deprivation of liberty to trigger certain due process rights, including the right to competent counsel when statutorily authorized.”
Rejecting the position of the Attorney General’s Office that the error was harmless, Hill wrote:
“The record in this case shows that the state of the evidence strongly supported a finding appellant was incompetent under the clear and convincing evidence standard. Dr. Chan provided detailed testimony showing appellant believed he was a lion, had no capacity to make decisions about his mental illness, did not understand the risks and benefits or side effects of treatment, and did not understand the possible consequences of not being treated….
“The record, however, is not as strong on the other points.”
The jurist went on to say:
“There is little doubt given appellant’s own testimony that he is severely mentally ill. However, his testimony showed, at a minimum, that he was aware of and acknowledged his diagnosis as schizophrenic, that he recognized his medicine calmed him, and that the medicine caused him to sleep excessively….The weight to give this testimony, particularly considering the substantial evidence that appellant did not have an actual understanding of his condition or otherwise was competent to give informed consent, was therefore a critical component of the hearing. The court’s application of a lower burden of proof than required leaves open the reasonable probability that appellant’s testimony was sufficient to keep the court from finding the clear and convincing standard was met.”
The case is State Department of State Hospitals at Coalinga v. A.M., F077042.
The California Supreme Court on Aug. 19, 2010, in Moore v. Superior Court, reversed the Court of Appeal’s determination that proceedings to extend Moore’s commitment as a sexually violent predator (“SVP”) could not be conducted until his sanity was restored. The high court’s 5-1 majority said, in an opinion by then-Justice Marvin Baxter (now retired):
“[T]he strong governmental interest in protecting the public through the proper confinement and treatment of SVP’s…would be substantially impeded by recognizing an SVP’s right to delay or avoid targeted confinement and treatment for a sexually violent mental disorder because his mental problems make him incompetent to stand trial.”
The Fifth District on Nov. 7, 2013, Dec. 16, 2014, and May 19, 2016 upheld orders for the involuntary medication of Moore, and on March 15, 2018 dismissed an appeal by Moore as moot because the order in question had expired.
Copyright 2019, Metropolitan News Company