In re Sean Allen Greenshields

Persons committed for mental health treatment under the Lanterman-Petris-

Short Act ("LPS patients") (Welf. & Inst. Code, § 5000 et seq.) have a statutory and

constitutional right to refuse antipsychotic medication under certain circumstances. So

do persons committed for treatment under the Mentally Disordered Offenders Act

("MDO's") (Pen. Code, § 2960 et seq.).1 (In re Qawi (2004) 32 Cal.4th 1.)

In In re Calhoun (2004) 121 Cal.App.4th 1315, we held that equal

protection principles give persons committed for treatment under the Sexually Violent

Predators Act ("SVP's") (Welf & Inst. Code, § 6600 et seq.) the same right to refuse

similar treatment as MDO's.

Here we decide that persons who are found not guilty by reason of insanity

("NGI's") have the same constitutional right as MDO's and SVP's to refuse antipsychotic

medication. (Welf. & Inst. Code, § 5300, hereafter "section 5300.") We disapprove our

opinion in In re Locks (2000) 79 Cal.App.4th 890, which holds otherwise.

1 All statutory references are to the Penal Code unless otherwise stated.

2

Petitioner Sean Alen Greenshields was found not guilty by reason of

insanity ("NGI") and committed to a state hospital. We issue an order for writ of habeas

corpus. Greenshields is entitled to a hearing to determine whether he may be forcibly

medicated.

PROCEDURAL BACKGROUND

Greenshields suffers from paranoid schizophrenia. In 1993, a jury found

him not guilty of attempted murder by reason of insanity. (§ 1026.) The superior court

committed him to a state hospital for a term of years, with a maximum commitment date

of July 2, 2012.2 In 2012, the court extended that commitment pursuant to section

1026.5.3 In a companion direct appeal (People v. Greenshields (July 14, 2014, No.

B243827) [nonpub. opn.]), we affirm the order extending this commitment.

Throughout his commitment, Greenshields has been treated against his will

with antipsychotic medication. He is presently treated at Atascadero State Hospital

(ASH) with Zyprexa, an antipsychotic, and Depakote, a mood stabilizer.

Greenshields denies that he suffers from a mental illness and believes his

medications are toxic. He declares that twice before he had been forcibly injected, and

saw other patients being forcibly injected. He now accepts his medications to avoid

forcible injection. At the hearing on the petition to extend Greenshields's commitment,

staff psychiatrist Joshua Deane confirmed that Greenshields "has been compliant with

medication to this extent, . . . because . . . he knows that if he refuses medication, we will

2 Section 1026, subdivision (a) provides that a defendant found to be insane at the time he

committed the offense shall be "confined in a state hospital for the care and treatment of

the mentally disordered or any other appropriate public or private treatment facility

approved by the community program director, or . . . on outpatient status," unless the

court finds the defendant's sanity is fully recovered.

3 Section 1026.5 authorizes the court to extend the term of commitment for treatment for

NGI's beyond "the longest term of imprisonment which could have been imposed for the

offense" (subd. (a)(1)) if "by reason of a mental disease, defect, or disorder [the NGI

defendant] represents a substantial danger of physical harm to others" (subd. (b)(1)).

Trial on the petition to extend commitment is by jury unless waived by the parties. (Id.,

subd. (b)(4).)

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give him an injectable form of delivery." Deane opined, "[Greenshields] cannot refuse

medication; . . . [under section] 1026, [NGI's] do not have the right to refuse medication."

While the most recent petition to extend his commitment was pending,

Greenshields asked the trial court to enjoin the state hospital from treating him with

antipsychotic medications against his will. The court denied his request without an

evidentiary hearing. Greenshields then filed this petition for writ of habeas corpus. We

ordered the director of ASH to show cause why a writ of habeas corpus should not issue,

ordering it "to refrain from involuntarily administering antipsychotic medication to

petitioner in a nonemergency situation unless: (1) petitioner is determined by a court to

be incompetent to refuse medical treatment; or (2) he is determined by a court to be a

danger to others within the meaning of section 5300 of the California Welfare and

Institutions Code."4

Respondent Department of State Hospitals ("Department") responded on

behalf of ASH. Department relies on our opinion in In re Locks, supra, 79 Cal.App.4th

890, 897, to support its contention that it may administer antipsychotic medication to

Greenshields without his consent.

4 Section 5300 detention requires proof of a recent overt act as follows:

"At the expiration of the 14-day period of intensive treatment, a person may be confined

for further treatment pursuant to the provisions of this article for an additional period, not

to exceed 180 days if one of the following exists:

"(a) The person has attempted, inflicted, or made a serious threat of substantial physical

harm upon the person of another after having been taken into custody, and while in

custody, for evaluation and treatment, and who, as a result of mental disorder or mental

defect, presents a demonstrated danger of inflicting substantial physical harm upon

others.

"(b) The person had attempted, or inflicted physical harm upon the person of another,

that act having resulted in his or her being taken into custody and who presents, as a

result of mental disorder or mental defect, a demonstrated danger of inflicting substantial

physical harm upon others.

"(c) The person had made a serious threat of substantial physical harm upon the person

of another within seven days of being taken into custody, that threat having at least in

part resulted in his or her being taken into custody, and the person presents, as a result of

mental disorder or mental defect, a demonstrated danger of inflicting substantial physical

harm upon others."

4

DISCUSSION

A competent adult has a constitutional and common law right to refuse

even necessary medical treatment. (Cal. Const., art. I, § 1; In re Qawi, supra, 32 Cal.4th

1, 14.) The right to refuse medication may be limited by countervailing state interests

such as caring for persons who are unable to care for themselves and "institutional

security." (Qawi, at p. 16.) In California, certain classes of mentally ill people may be

involuntarily committed for mental health treatment because either they are unable to

care for themselves or they are dangerous.

No Statutory Right to Refuse Antipsychotic Medication

MDO's and LPS patients must submit to mental health treatment, but have a

statutory right to refuse antipsychotic medication. The statutes that apply to mentally ill

prisoners (§ 2602, subd. (c)(5)), LPS patients (Welf. & Inst. Code, §§ 5300, 5303, 5332,

subd. (b); see also Riese v. St. Mary's Hospital & Medical Center (1987) 209 Cal.App.3d

1303, 1310), and MDO's (§ 2972) grant a right to a hearing to determine whether the

person (1) is competent to refuse antipsychotic medication, or (2) has been recently

dangerous, before the person may be treated with antipsychotic medication against his

will. But the statutory framework pertaining to NGI's does not include the right to such a

hearing. After a unanimous jury adjudicates a person to be NGI, the person may be

committed to a state hospital regardless of amenability to treatment. (People v. Buttes

(1982) 134 Cal.App.3d 116, 122.) And this treatment has included the forcible

administration of antipsychotic medication.

Equal Protection

A defendant found to be NGI requires a finding beyond a reasonable doubt

that at the time of the offense he had a mental disorder that rendered him dangerous to

others. A defendant found to be NGI is presumed to be insane during his confinement.

(In re Franklin (1972) 7 Cal.3d 126, 141.) We now conclude that a judgment of NGI is

not a determination that the defendant is incompetent to refuse treatment or that he

recently committed a dangerous act. In the absence of such determination, equal

5

protection principles preclude treatment with antipsychotic medication in nonemergency

situations.

A meritorious claim under the equal protection clause requires a showing

that the state has adopted a classification that affects two or more similarly situated

groups in an unequal manner. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.)

The inquiry is not whether persons are similarly situated for all purposes, but whether

they are similarly situated for purposes of the law challenged. (Ibid.) NGI's are similarly

situated to persons civilly committed who may be subject to treatment with antipsychotic

medication against their will.

We concluded in Locks that NGI's are not entitled to a hearing to determine

incompetence to refuse treatment or recent dangerousness because, unlike prisoners and

LPS patients, "[b]y implication, section 1026.2 presumes that [Locks] is a danger to

others," and Locks had the opportunity to seek a determination that he was no longer

dangerous. (In re Locks, supra, 79 Cal.App.4th 890, 897.)5 Subsequently, the California

Supreme Court decided that MDO's have a statutory right to a hearing to determine

whether they are incompetent to refuse antipsychotic medication (In re Qawi, supra, 32

Cal.4th 1, 9-10) or whether they are "recently dangerous" (id. at p. 21). We also decided

that SVP's have the same right under equal protection principles. (In re Calhoun, supra,

121 Cal.App.4th 1315, 1350-1354.) We conclude Locks is no longer binding precedent

and we disapprove the decision.

Qawi decided that MDO's, like LPS patients, have a statutory right to refuse

antipsychotic medication in nonemergency situations unless a court determines the

person (1) is incompetent to refuse the treatment, or (2) has been recently dangerous,

because MDO's are statutorily guaranteed the "same rights" as LPS patients (§ 2972). (In

re Qawi, supra, 32 Cal.4th 1, 9; id. at p. 24.) LPS patients have the right to a hearing on

5 Section 1026.2, subdivision (e) provides, in part, "The court shall hold a hearing to

determine whether the person applying for restoration of sanity would be a danger to the

health and safety of others, due to mental defect, disease, or disorder, if under supervision

and treatment in the community."

6

their competence to refuse unless they are detained pursuant to section 5300. (Welf. &

Inst. Code, § 5332; Qawi, at p. 19.) Qawi decided that a court should "consider whether

[a defendant] has committed the types of violent or threatening acts specified in section

5300 within the year prior to the commitment or recommitment" when determining

whether a person is dangerous within the meaning of section 5300. (Qawi, at p. 28,

fn. 7.)

Qawi criticized Locks, because we did not consider whether Locks had

committed recent acts of dangerousness pursuant to section 5300. (In re Qawi, supra, 32

Cal.4th 1, 27.) Qawi reserved for another day, however, the question whether NGI's also

are entitled to a hearing upon refusal to accept antipsychotic medication. (Ibid.) Here we

decide that day has arrived.

Qawi concludes that "to give MDO's the same rights as LPS patients, an

MDO can be compelled to take antipsychotic medication in a nonemergency situation

only if a court, at the time the MDO is committed or recommitted, or in a separate

proceeding, 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. . . . The rights of MDO's to

refuse medication can be further limited by State Department of Mental Health

regulations necessary to provide security for inpatient facilities." (In re Qawi, supra, 32

Cal.4th 1, 9-10.)

In Calhoun, we held that equal protection principles require that an SVP be

provided the same right as an MDO to refuse antipsychotic medication unless a court

determines the person is (1) incompetent to refuse the treatment, or (2) dangerous within

the meaning of section 5300. (In re Calhoun, supra, 121 Cal.App.4th 1315, 1351-1352.)

Although SVP's have been adjudicated to be "likely [to] . . . engage in sexually violent

criminal behavior," an SVP commitment does not require proof of recent dangerousness.

(Welf. & Inst. Code, § 6600, subd. (a)(1).) We concluded that SVP's are similarly

situated to MDO's because each has been adjudicated to be dangerous to others, but has

7

not necessarily been found to be recently dangerous as required by section 5300.

(Calhoun, at pp. 1351-1352.) No proof of recently dangerous acts is required to establish

either that the MDO "represents a substantial danger of physical harm to others" (§ 2972,

subd. (c)),6 or that "it is likely that [the SVP] will engage in sexually violent criminal

behavior" (Welf. & Inst. Code, §§ 6600, subd. (a)(1), 6604).7

Like the MDO in Qawi, Greenshields has been adjudicated to "represent[] a

substantial danger of physical harm to others." (§§ 1026.5, subd. (b)(1) [NGI's],8 2972,

subd. (c) [MDO's].) But also like the MDO, and the SVP in Calhoun, Greenshields has

not yet been adjudicated to be (1) incompetent to refuse antipsychotic medication, or (2)

6 For MDO extended commitment, section 2972 provides,

"(a) The court shall conduct a hearing on the petition under Section 2970 for continued

treatment. . . . [¶] (c) If the court or jury finds that the patient has a severe mental

disorder, that the patient's severe mental disorder is not in remission or cannot be kept in

remission without treatment, and that by reason of his or her severe mental disorder, the

patient represents a substantial danger of physical harm to others, the court shall order the

patient recommitted . . . ."

7 For SVP commitment, Welfare and Institutions Code sections 6600 and 6604 provide:

"'Sexually violent predator' means a person who has been convicted of a sexually violent

offense against one or more victims and who has a diagnosed mental disorder that makes

the person a danger to the health and safety of others in that it is likely that he or she will

engage in sexually violent criminal behavior." (Welf. & Inst. Code, § 6600, subd. (a)(1).)

"The court or jury shall determine whether, beyond a reasonable doubt, the person is a

sexually violent predator. . . . If the court or jury determines that the person is a sexually

violent predator, the person shall be committed for an indeterminate term to the custody

of the State Department of State Hospitals for appropriate treatment. . . ." (Welf. & Inst.

Code, § 6604.)

8 For NGI's, section 1026.5, subdivision (b) provides:

"(1) A person may be committed beyond the term prescribed by subdivision (a) only

under the procedure set forth in this subdivision and only if the person has been

committed under Section 1026 for a felony and by reason of a mental disease, defect, or

disorder represents a substantial danger of physical harm to others. [¶] . . . [¶]

"(8) If the court or jury finds that the patient is a person described in paragraph (1), the

court shall order the patient recommitted to the facility in which the patient was confined

at the time the petition was filed. This commitment shall be for an additional period of

two years . . . ."

8

dangerous within the meaning of section 5300. No proof of recently dangerous acts was

required to extend Greenshields's commitment. Because Greenshields is similarly

situated to the defendants in Qawi and Calhoun in this respect, he is entitled to similar

treatment absent a compelling state interest to the contrary.

Department argues that NGI's are not similarly situated to MDO's because

they have been recognized as belonging to a "separate, distinct class." (In re Qawi,

supra, 32 Cal.4th 1, 27, fn. 6, in dicta quoting Stats. 1985, ch. 1419, 2.75, p. 5018; see

also Jones v. U.S. (1983) 463 U.S. 354, 370 [commitment beyond maximum prison term

for NGI's permissible because "insanity acquittees constitute a special class that should

be treated differently from other candidates for commitment"]; People v. Tilbury (1991)

54 Cal.3d 56, 68 [lack of a jury trial for NGI defendant on a petition for outpatient

treatment does not offend equal protection principles because, unlike LPS patients, NGI's

plead insanity, reducing the risk of erroneous commitment].)

But the inquiry is not whether persons are similarly situated for all

purposes, it is whether they are similarly situated for purposes of the law challenged.

(Cooley v. Superior Court, supra, 29 Cal.4th 228, 253; see also People v. O'Dell (2005)

126 Cal.App.4th 562, 571 [necessity for involuntarily medicating NGI's against their will

must be based on substantial evidence that doing so would significantly further

governmental interests].) NGI's, MDO's and SVP's are similarly situated for purposes of

determining whether they may be treated with antipsychotic medication against their will.

Administration of unwanted antipsychotic medication involves a constitutionally

protected liberty interest. (Odell, at pp. 568-569, citing Washington v. Harper (1990) 494

U.S. 210, 221-222.)

Department argues that Greenshields has already been adjudicated

incompetent to make medical decisions, because he has been adjudicated to be NGI and

NGI's are subject to treatment regardless of amenability. But whether Greenshields may

be treated with antipsychotic medication against his will is a different issue. Qawi

rejected a similar argument concerning MDO's and "emphasize[d] that this opinion is

9

concerned with the right to refuse antipsychotic medication and not mental health

treatment in general." (In re Qawi, supra, 32 Cal.4th 1, 15, fn. 4.) "Whether an

individual already deprived of substantial liberty through an MDO commitment may

refuse to participate in noninvasive treatments incidental to that commitment, or to opt

out of a treatment program altogether, presents very different considerations from

whether he or she may refuse antipsychotic medication. As explained, the coercive

administration of such medication, with its potentially serious side effects, imposes a

significant additional burden on the MDO's liberty interest." (Ibid.)

Department has not demonstrated a compelling state interest that justifies

the distinction between NGI's and MDO's. (People v. Olivas (1976) 17 Cal.3d 236, 251

[when legislative classification affects a fundamental interest, the state must establish a

compelling interest that justifies the law and that the distinctions drawn by the law are

necessary to further that state interest].)

The trial court denied Greenshields's habeas petition before it heard

evidence of his current dangerousness adduced at the recommitment hearing.

Greenshields is entitled to a hearing in the trial court to determine whether he is

incompetent to refuse treatment or dangerous within the meaning of section 5300.

Greenshields also argues that treatment with antipsychotic medication

against his will violates his right to religious freedom under the First Amendment. He

has not submitted sufficient evidence to support this contention and we do not consider

his argument. (Shakur v. Schriro (9th Cir. 2008) 514 F.3d 878, 885 [only those beliefs

that are both sincerely held and religious in nature are entitled to constitutional

protection].)

We issue an order for writ of habeas corpus. We direct Department to

refrain from administering antipsychotic medication to Greenshields against his will in a nonemergency situation unless a trial court determines he is (1) incompetent to refuse the treatment, or (2) a danger to others within the meaning of section 5300, i.e., whether he committed the types of violent or threatening acts specified in section 5300 within the year prior to the recommitment.