Opinion
H044610
08-23-2018
Conservatorship of the Person of B.W. JAMES J. RAMONI, as Public Guardian, etc., Petitioner and Respondent, v. B.W., Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 1-70-MH021652)
I. INTRODUCTION
After a jury found appellant B.W. to be gravely disabled within the meaning of the Lanterman-Petris-Short Act (LPS Act) (Welf. & Inst. Code, § 5000 et seq.), the trial court reappointed respondent Public Guardian for Santa Clara County as conservator of appellant. On appeal, appellant contends that the trial court erred by: (1) allowing him to be called as witness by the public guardian in violation of his rights to equal protection, (2) failing to instruct the jury on how to properly evaluate expert testimony, and (3) permitting the jury to consider case-specific hearsay testimony from an expert witness.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
For reasons that we will explain, we will affirm the judgment.
II. BACKGROUND
In August 2016, the public guardian filed a petition for reappointment as conservator of the person of appellant. The public guardian also sought to deny certain rights to appellant, including the right to drive, to enter contracts, and to refuse medical treatment.
A jury trial was held in December 2016. The public guardian called three witnesses to testify: (1) a lead deputy public guardian, (2) a licensed psychologist, and (3) appellant as an adverse witness.
The lead deputy public guardian testified as an expert on conservators in LPS conservatorships. She was also appellant's assigned deputy public guardian, and she supervised appellant's assigned conservator. She testified that appellant had been on and off conservatorships since 1971, and that he had been on conservatorships with the public guardian's office continuously since 2004. Appellant had been residing at Napa State Hospital since March 2016.
The psychologist testified as an expert in psychology and regarding grave disability. Although he was not appellant's treating psychologist, he had evaluated appellant 12 times since 1998. The most recent evaluation occurred the week before trial. As part of his evaluation of appellant, the psychologist talked to the treatment staff at Napa State Hospital and reviewed various records, including from the public guardian and Napa State Hospital.
Appellant was first hospitalized for a mental illness in 1967, when he was 17 years old. He has had 40 acute psychiatric admissions since that time.
The psychologist testified that appellant suffers from schizoaffective disorder, which is a disorder that has elements of schizophrenia and bipolar disorder. There is no cure for schizoaffective disorder, but medications can help control the symptoms. Even when medicated, appellant still harbors paranoid ideation and is suspicious of others. Regarding paranoid delusions for example, he believes that blood drawn from him takes away his "essential essence as a person and his energy." Appellant is preoccupied and can be observed talking to himself. He refuses medications and does not understand the positive impact they may have on his symptoms. Appellant can be grandiose and unrealistic in his thinking and make nonfactual statements. He has a history of violent and aggressive behavior. For example, since being admitted to Napa State Hospital in March 2016, he has had three physical altercations, including one incident in which he punched a psychologist. Appellant also has "a tendency to behave in a racist fashion," such as with staff at Napa State Hospital.
The psychologist testified that appellant does not believe he has a mental disorder, does not acknowledge that he needs psychiatric medicine, and does not accept the medication that controls his mood and impulses. Based on appellant's recent and frequent refusals to take the medication that is effectively controlling his symptoms, the psychologist did not believe appellant would take the medication if he was off the conservatorship and on his own in the community. Appellant wanted to take vitamins and herbal supplements to help control his illness, but that treatment would not be sufficient by itself to manage his symptoms of mental illness. Appellant has also been inconsistent in complying with necessary treatments for physical health issues.
The psychologist testified that it was "extremely important" for appellant to take his psychiatric medicine. If appellant did not, he would decompensate and become increasingly more psychotic, more paranoid, more forgetful, more internally preoccupied, and less capable of attending to his daily needs.
The psychologist testified that when appellant has been out in the community, he stops taking his medications. Within 48 hours he decompensates and becomes agitated. He gets into verbal and physical altercations or neglects himself. Within two to four weeks, he is back in the psychiatric emergency room, and then he is admitted to a higher level of care. When appellant is picked up after being in the community, he is always emaciated, unkempt, and malnourished.
The psychologist testified that it was in appellant's best interest to be medicated for his mental health condition, and that appellant was not ready to leave Napa State Hospital. If appellant was not in a conservatorship, the psychologist was concerned that appellant would be attacked and victimized in the community; that he would not care for his own nourishment and eat properly; and that his other medical conditions would not be monitored, including his heart and liver conditions and his seizure disorder. In the psychologist's opinion, appellant was not currently able on his own to provide for his needs for food, clothing, or shelter. The psychologist believed that appellant was gravely disabled and that he was unwilling to accept meaningful treatment.
Outside the presence of the jury, the psychologist testified that appellant should be disqualified from possessing a firearm or other deadly weapon. The psychologist also testified that appellant should not have the privilege of a driver's license, the right to enter into contracts, the right to refuse or consent to routine medical treatment unrelated to his grave disability, and the right to refuse or consent to psychiatric treatment and the administration of medication. The psychologist explained that appellant has a chronic mental illness, schizoaffective disorder, and that he has ongoing symptoms that impair his judgment, impulse control, and his ability to engage in simple contracts such as obeying the rules of the facility. Because of his mental illness, appellant also has difficulty engaging for extended periods of time in reciprocal social interaction that is rational, logical, and makes sense.
In the presence of the jury, appellant was called to testify as an adverse witness under Evidence Code section 776. He testified that although he may have had a mental illness in the past, he was no longer mentally ill. Appellant did not believe he needed psychiatric medication. He believed that he was no longer disabled, and that he could take care of himself regarding the necessities of life, including food, shelter, and clothing.
Evidence Code section 776, subdivision (a) states: "A party to the record of any civil action . . . may be called and examined as if under cross-examination by any adverse party at any time during the presentation of evidence by the party calling the witness."
On December 8, 2016, the jury found that appellant was gravely disabled due to a mental disorder. After the jury was discharged, the court found that appellant should not have certain rights and privileges.
On December 19, 2016, the trial court filed a judgment reappointing the public guardian as conservator of the person of appellant. The court further ordered that appellant lose (1) the privilege of possessing a driver's license, (2) the right to refuse or consent to psychiatric treatment and the administration of psychotic medications specifically related to him being gravely disabled, (3) the right to refuse or consent to routine medical treatment unrelated to remedying or preventing the recurrence of him being gravely disabled, and (4) the right to enter into contracts, and that appellant (5) be disqualified from possessing a firearm or other deadly weapon.
III. DISCUSSION
A. The LPS Act
"The LPS Act governs the involuntary detention, evaluation, and treatment of persons who, as a result of mental [health] disorder, are dangerous or gravely disabled. [Citation.] The Act authorizes the superior court to appoint a conservator of the person for one who is determined to be gravely disabled [citation], so that he or she may receive individualized treatment, supervision, and placement [citation]. As defined by the Act, a person is 'gravely disabled' if, as a result of a mental [health] disorder, the person 'is unable to provide for his or her basic personal needs for food, clothing, or shelter.' [Citation.]" (Conservatorship of John L. (2010) 48 Cal.4th 131, 142.) "In addition to physical restraint, '[t]he gravely disabled person for whom a conservatorship has been established faces the loss of many other liberties . . . .' [Citation.]" (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 540.) For example, the conservatee may lose the right to possess a driver's license, to enter into contracts, to refuse certain types of medical treatment, and to possess firearms. (§ 5357, subds. (a), (b), (d), (e) & (f).)
" 'The proposed conservatee is entitled to demand a jury trial on the issue of his or her grave disability, and has a right to counsel at trial, appointed if necessary. [Citation.] The party seeking imposition of the conservatorship must prove the proposed conservatee's grave disability beyond a reasonable doubt and the verdict must be issued by a unanimous jury. [Citation.]' [Citation.]" (Conservatorship of Ben C., supra, 40 Cal.4th 529 at p. 541.)
If a person is found to be gravely disabled and a conservatorship is imposed, the "conservatorship automatically terminates at the end of a year. [Citation.]" (Conservatorship of Ben C., supra, 40 Cal.4th 529 at p. 542.) "[T]he conservatorship may be extended for additional one-year periods, so long as the person remains gravely disabled. [Citation.]" (Id. at p. 540.) "At a hearing to reestablish a conservatorship after its automatic expiration, the standard of proof beyond a reasonable doubt and the rights to appointed counsel, to a court or jury trial, and to a unanimous jury verdict again apply. [Citations.]" (Id. at p. 542.)
B. Mootness
As an initial matter, we address the issue of mootness. Appellant acknowledges that his one-year conservatorship under the LPS Act will expire before this court can dispose of his appeal. He argues that this court should nevertheless address the merits of his claims because they involve issues that are capable of reoccurring without ever being addressed.
" 'It is well settled that an appellate court will decide only actual controversies and that a live appeal may be rendered moot by events occurring after the notice of appeal was filed. We will not render opinions on moot questions or abstract propositions, or declare principles of law which cannot affect the matter at issue on appeal.' [Citations.]" (Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 866-867 (Building a Better Redondo, Inc.).) "A case is moot when the decision of the reviewing court 'can have no practical impact or provide the parties effectual relief. [Citation.]' [Citation.]" (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214.)
"The general rule regarding mootness, however, is tempered by the court's discretionary authority to decide moot issues. When an action involves a matter of continuing public interest that is likely to recur, a court may exercise an inherent discretion to resolve that issue, even if an event occurring during the pendency of the appeal normally would render the matter moot. [Citations.]" (Building a Better Redondo, Inc., supra, 203 Cal.App.4th at p. 867.)
In this case, the trial court reappointed the public guardian as conservator in December 2016. The conservatorship expired in 2017 by operation of law. (§ 5361; Conservatorship of Ben C., supra, 40 Cal.4th at p. 542.) The issues raised by appellant in challenging the conservatorship are therefore technically moot. However, the issues of (1) whether a proposed conservatee may refuse to testify at a conservatorship proceeding, and (2) whether the jury was properly instructed regarding expert testimony, are issues of recurring importance. We will therefore consider the substance of appellant's appeal. (See Conservatorship of John L., supra, 48 Cal.4th at p. 142, fn. 2.)
C. The Right to Refuse to Testify Based on Equal Protection Principles
Appellant contends that the trial court "erred in allowing [the public guardian] to call [him] as a witness." Appellant observes that in Hudec v. Superior Court (2015) 60 Cal.4th 815 (Hudec), the California Supreme Court determined that a person found not guilty of a criminal offense by reason of insanity (NGI; Pen. Code, § 1026), who is facing the extension of his or her commitment to a state hospital, has the right to refuse to take the witness stand at the commitment extension hearing by virtue of Penal Code section 1026.5, subdivision (b)(7). (Hudec, supra, at p. 818.) Appellant acknowledges that the pertinent language in Penal Code section 1026.5, subdivision (b)(7)—"[t]he person shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings"—does not appear in the LPS Act.
Appellant contends, however, that equal protection principles require that he has the same right as an NGI to refuse to testify at an LPS conservatorship proceeding. He observes that subsequent to Hudec, the appellate courts have determined that a sexually violent predator (SVP; § 6600 et seq.) and a person committed as a mentally disordered offender (MDO; Pen. Code, § 2960 et seq.) are similarly situated to NGI's for purposes of whether they may refuse to testify at their commitment hearings. (E.g., People v. Curlee (2015) 237 Cal.App.4th 709, 720-721, 722-23 (Curlee) [determining that SVP's are similarly situated to NGI's for purposes of the right to refuse to testify but remanding the matter for an evidentiary hearing regarding whether the differential statutory treatment is justified]; People v. Landau (2016) 246 Cal.App.4th 850, 864-865 (Landau) [determining that SVP's are similarly situated to NGI's and allowing the parties on remand to address whether sufficient justification exists for allowing only NGI's the right to refuse to testify]; People v. Dunley (2016) 247 Cal.App.4th 1438, 1450, 1453-1454, fn. 14 (Dunley) [determining that MDO's are similarly situated to NGI's and SVP's for purposes of the refusal to testify, that a compelling state interest for the differential treatment had not been shown, but that the appeal should be dismissed as moot]; People v. Alsafar (2017) 8 Cal.App.5th 880, 887, 888 [agreeing with Dunley that MDO's are similarly situated to NGI's and SVP's but dismissing the appeal as moot].) Appellant contends that he is similarly situated to NGI's, SVP's, and MDO's for purposes of the right not to testify, and that the disparate treatment under the LPS Act, which does not contain the statutory right to refuse to testify, does not pass the strict scrutiny test. He further argues that the court's error in allowing him to be called to testify was prejudicial.
Appellant also contends that his equal protection claim was not forfeited although his trial counsel failed to object to him being called as a witness. Appellant argues that it would have been "pointless" for his trial counsel to object because in Conservatorship of Baber (1984) 153 Cal.App.3d 542 (Baber), the appellate court held that a proposed conservatee under the LPS Act can be required to testify. Based on Auto Equity Sales, Inc. v. Superior Court (1962i9i) 57 Cal.2d 450 (Auto Equity), appellant argues that the trial court was required to follow Baber.
The public guardian contends that appellant forfeited his equal protection claim by failing to object in the trial court when he was called to testify. The public guardian also argues that (1) Baber, supra, 153 Cal.App.3d 542, which held that proposed conservatees under the LPS Act can be required to testify, did not involve an equal protection claim, (2) Baber predated Hudec, supra, 60 Cal.4th 815, the primary authority on which defendant relies for his equal protection claim, and (3) some of the appellate court opinions addressing Hudec in the context of SVP's or MDO's were decided several months before appellant's trial (e.g., Curlee, supra, 237 Cal.App.4th 709; Dunley, supra, 247 Cal.App.4th 1438). Under the circumstances, the public guardian argues that appellant cannot claim that an objection in the trial court on equal protection grounds would have been futile. The public guardian further argues that compelled testimony in an LPS conservatorship proceeding does not violate equal protection because the proposed conservatee is not similarly situated to NGI's, SVP's, or MDO's.
" ' "No procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." [Citation.]' [Citation.]" (People v. Saunders (1993) 5 Cal.4th 580, 590; see People v. Barnum (2003) 29 Cal.4th 1210, 1224-1225, fn. 2 [forfeiture doctrine applies to constitutional privilege against compelled self-incrimination]; People v. Carpenter (1997) 15 Cal.4th 312, 362 [forfeiture doctrine applies to equal protection claim].) Appellant admits that he never objected below to the public guardian calling him to testify at trial. Appellant has therefore forfeited his equal protection claim.
We are not persuaded by appellant's contention that his equal protection claim is "purely a legal one," and that therefore this court should address his claim in the first instance. For example, in Curlee, the appellate court determined that an evidentiary hearing was necessary to determine whether the differential statutory treatment of SVP's and NGI's, regarding the right to refuse to testify, is justified. (Curlee, supra, 237 Cal.App.4th at p. 722; see Landau, supra, 246 Cal.App.4th at p. 865.)
We are also not persuaded by appellant's contention that an objection on equal protection grounds would have been "pointless" because "the trial court would have been required to overrule that objection" based on Baber. (See Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1283 ["failure to raise an issue at trial is generally excused where an objection would have been futile or wholly unsupported by existing substantive law"].)
In Baber, the trial court refused to allow the public guardian to call the proposed conservatee to testify at the LPS conservatorship proceeding "on the ground that this might compromise [the proposed conservatee's] Fifth Amendment right not to be called as a witness against himself in a criminal proceeding." (Baber, supra, 153 Cal.App.3d at p. 548.) The jury ultimately found that the proposed conservatee was not gravely disabled within the meaning of the LPS Act, and the public guardian appealed. (Id. at p. 546.) The appellate court determined that the trial court erred and that "a prospective conservatee may not refuse to testify in his own conservatorship trial." (Id. at p. 550.) Baber thus did not involve an equal protection claim like the one appellant raises here, and the trial court in this case would not have been required to reject appellant's equal protection claim outright under Auto Equity, supra, 57 Cal.2d 450, had he raised it below.
Moreover, the legal authority on which appellant primarily relies to support his equal protection claim, including Hudec, existed prior to his December 2016 jury trial during which he was called to testify. As appellant fails to establish that his equal protection claim "would have been futile or wholly unsupported by existing substantive law" at the time of his trial (Conservatorship of K.W., supra, 13 Cal.App.5th at p. 1283), we conclude that he has forfeited the claim.
D. Jury Instruction Regarding Expert Testimony
Prior to the presentation of evidence, the trial court orally instructed the jury regarding expert witness testimony pursuant to CACI No. 219 as follows: "During the trial you may hear testimony from expert witnesses. The law allows an expert to state opinions about matters in his or her field of expertise even if he or she has not witnessed any of the events involved in the trial. [¶] You do not have to accept an expert's opinion. As with any other witness, it's up to you to decide whether you believe the expert's testimony and choose to use it as a basis for your decision. [¶] You may believe all, part, or none of an expert's testimony. In deciding whether to believe an expert's testimony, you should consider the expert's training and experience, the facts the expert relied on, and the reasons for the expert's opinion."
CACI No. 219 states: "During the trial you heard testimony from expert witnesses. The law allows an expert to state opinions about matters in his or her field of expertise even if he or she has not witnessed any of the events involved in the trial. [¶] You do not have to accept an expert's opinion. As with any other witness, it is up to you to decide whether you believe the expert's testimony and choose to use it as a basis for your decision. You may believe all, part, or none of an expert's testimony. In deciding whether to believe an expert's testimony, you should consider: [¶] a. The expert's training and experience; [¶] b. The facts the expert relied on; and [¶] c. The reasons for the expert's opinion." --------
When the trial court instructed the jury at the close of evidence, the court did not orally instruct the jury pursuant to CACI No. 219. However, the court told the jury that it "must follow" the instructions "previously given," and that it would be given a copy of the instructions in the jury deliberation room. The record reflects that the written instructions given to the jury included CACI No. 219.
On appeal, appellant does not contend that the failure to read CACI No. 219 at the close of evidence was prejudicial. Rather, we understand appellant to argue as follows: "inadmissible case-specific hearsay was being offered for its truth" through expert testimony, the trial court erroneously allowed such hearsay to be admitted for its truth, and CACI No. 219 is "wrong" because the instruction failed to tell the jury that it "could not consider case-specific hearsay for its truth."
The public guardian contends that appellant forfeited his claim of instructional error by failing to object below, and that there is no possibility that any alleged instructional error misled the jury.
In reply, appellant contends that a party is not required to object to jury instructions that incorrectly state the law.
We are not persuaded that CACI No. 219 contains an incorrect statement of the law, or that the trial court in this case should have instructed the jury that it could not consider case-specific hearsay for its truth.
In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), the California Supreme Court held that "case-specific statements" related by a gang expert as the basis for the expert's opinion constituted inadmissible hearsay. (Id. at p. 670.) The court explained that "[c]ase-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried" and are distinguished from "generally accepted background information." (Id. at p. 676.)
The court also determined that CALCRIM No. 332, which informed the jury that it " 'must decide whether information on which the expert relied was true and accurate,' " conflicted with a jury instruction that a gang expert's testimony concerning the defendant's statements, police reports, and other out-of-court statements, should not be considered " 'proof that the information contained in those statements was true.' " (Sanchez, supra, 63 Cal.4th at p. 684.) The court explained that "[i]f an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception" (ibid., italics added & fn. omitted), or "independently proven by competent evidence" (id. at p. 686).
The California Supreme Court further explained that, "[o]rdinarily, an improper admission of hearsay would constitute statutory error under the Evidence Code." (Sanchez, supra, 63 Cal.4th at p. 685.) "[H]earsay . . . problems cannot be avoided by giving a limiting instruction that such testimony should not be considered for its truth." (Id. at p. 684.) The court disapproved its prior decisions holding that a limiting instruction on hearsay evidence admitted as expert basis testimony cured hearsay problems. (Id. at p. 686, fn. 13.)
Therefore, the trial court did not err by failing to instruct the jury that it "could not consider case-specific hearsay for its truth" as urged by appellant on appeal.
E. Evidentiary Error
Prior to trial, the parties entered into two written stipulations. In the first stipulation, the parties agreed that medical records from Napa State Hospital and Santa Clara Valley Medical Center were authentic, and that no witness testimony was required on that issue. The parties further stipulated that the medical records were "made in the ordinary course of business at or near the time of the event(s) in question," and that "the information contained in the records was compiled in an appropriate manner indicating reliability and trustworthiness."
In the parties' second stipulation, which became an order of the court, the parties agreed to admit into evidence certain "events and statements" involving defendant. The stipulation described 11 incidents that occurred in October and November 2016, in which appellant was verbally abusive toward medical staff and/or threatened them, refused to take his medication or have blood drawn, or made racial statements to staff. Neither the medical records nor the two stipulations were admitted into evidence at trial.
On appeal, appellant contends that the trial court erred by allowing the experts to testify about case-specific hearsay in violation of Sanchez, where the testimony did not fall within an exception to the hearsay rule or within the stipulations. Although appellant acknowledges that he did not object to every instance of case-specific hearsay, he argues that he did not forfeit the issue. He contends that the trial court ruled adversely to one hearsay objection at one point during the trial, and that the court deemed it a continuing objection. Regarding prejudice, appellant argues as follows: "Given the nature of the other evidence in this case, appellant does not contend that the case-specific hearsay was itself individually prejudicial in this case. Instead, appellant contends that the case-specific hearsay was cumulatively prejudicial when considered in combination with the jury instruction issue . . . and the erroneous decision to allow [the public guardian] to call appellant as a witness." Lastly, to the extent his evidentiary claim has been forfeited, appellant contends that his trial counsel rendered ineffective assistance.
The public guardian contends that appellant forfeited his claim of evidentiary error by failing to object below. The public guardian further argues that the testimony at issue was properly admitted based on the experts' personal knowledge or based on the stipulations. Lastly, the public guardian contends that appellant has not established ineffective assistance of counsel.
We need not decide whether appellant forfeited his evidentiary claim, or whether the trial court erred in allowing one or more pieces of testimony by the experts, because we determine that appellant has failed to show prejudice from any purportedly erroneous admission of evidence. Appellant expressly states that he "does not contend that the case-specific hearsay was itself individually prejudicial in this case." Rather, appellant's claim of prejudice is based on his contention that the cumulative effect of this and other purported errors resulted in prejudice. As we have explained, however, appellant forfeited his equal protection challenge to the trial court's purportedly erroneous decision to allow him to be called to testify by the public guardian. We have also determined that appellant fails to show instructional error. In the absence of more than one error, appellant fails to demonstrate prejudice from cumulative error.
IV. DISPOSITION
The judgment is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.