The Sixth Appellate District of California’s District Court of Appeal found that a probation condition in People v. Murrillo requiring the defendant to take all prescribed medication was vague and that it may have been overbroad.

Angela Murillo, age 21, was charged with having sex with a minor, her sixteen year old boyfriend. She was quite remorseful during her probation interview. She told the probation officer that she had taken drugs since she was ten years old and that she was an alcoholic. Furthermore she said that she used a inhaler for asthma and that she had been diagnosed with ADHD and bipolar disorder but that she did not take any medication for mental disorders.

At sentencing Murillo’s counsel objected to three of the probation officer’s recommendations: 1) chemical testing, 2) possession or consumption of drugs or alcohol or being any place that either of them were being used or sold, and 3) entering a rehabilitation program. the court accepted the probation officer’s recommendation and added two more conditions: that Murillo obtain psychological counseling as directed by probation and that she take all medications prescribed by her doctor. The trial Court asked Murillo whether she accepted the conditions and she agreed to them.

On appeal she objected to the condition that she refrain from use of alcohol and that she take all prescribed medications on the grounds that they were not related to her criminal behavior. The Appellate Court found that the alcohol condition related to her criminal behavior in that she had a long term history of alcohol abuse and that alcohol reduced inhibitions and could lead to future criminal conduct.

As to the requirement that take all prescribed medication the court found the condition vague since under the facts of the case it is not clear whether the judge meant that she had to take all prescribed medications or just psychiatric medications. There is no evidence that she failed to take any medication for physical problems. Therefore, there is no relationship between taking physical medications and criminal behavior. As a result the condition is an abuse of discretion.

But the question remained whether by failing to object to the conditions at sentencing, Murillo waived the right to object on appeal. The court found that there was no logical reason for her not to have objected at trial and therefore the failure to object was incompetence of counsel. The court found, citing In Re Sheena K., Murillo did not waive the right by failing to object at sentencing. Under the Sheena K. test waiver occurs if proof of the illegal condition needs the fact finding ability of the trial court. In this case only the trial court can determine whether the condition is unconstitutional and therefore the failure to object result in waiver. But because the appellate court found incompetence of counsel without needing a factual input from the trial court waiver is not an issue.

Before remanding the case to the trial court for a determination of the necessity of requiring the defendant to take psychiatric medications the appellate court put forth several issues for the trial court’s consideration. First, since the medication issue infringes Murillo’s right of privacy any condition must be closely tailored to an important state right. Second, Murillo has a Fourteenth Amendment liberty interest protecting her from the forced taking of psychotropic medication and any probation condition enforceable by jail or prison is a coerced. Citing Sell v. United States the Court found that the Court should consider the following conditions before order the taking of psychotropic medications: 1) that an important governmental interest is at stake, 2) that the involuntary taking of medication will insure a timely prosecution and a fair trial (its hard to see how this is appropriate in a post conviction probation sentencing) 3) that the involuntary use of medication will significantly further the state interest, and 4) that the taking of medication is medically necessary.