Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. MH103264, Charles G. Rogers, Judge.
HUFFMAN, Acting P. J.
Johnny D. appeals a judgment establishing a one-year conservatorship of his person under the Lanterman-Petris-Short Act (LPS Act, Welf. & Inst. Code, § 5000 et. seq.) In May 2010, the superior court accepted a stipulated judgment and established a one-year conservatorship of Johnny's person, pursuant to sections 5350 and 5361. On appeal, Johnny contends the judgment should be reversed because he did not expressly waive his right to a jury trial in order to agree to the stipulation. We affirm the judgment.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On December 15, 2009, respondent San Diego Health and Human Services Agency (Agency) filed a petition to reestablish the conservatorship of Johnny pursuant to section 5361 of the LPS Act. Following a contested hearing on February 16, 2010, the court reestablished Johnny's conservatorship in a closed, locked facility for one year.
Seven days after the hearing, Johnny filed a demand for jury trial pursuant to section 5350, subdivision (d) of the LPS Act. The court scheduled the jury trial for May 24, 2010. Prior to selecting a jury, Johnny, both counsel, and the court met in chambers for an off the record discussion of a proposed stipulation. On the record, the court asked Johnny if he wanted to proceed with the trial or enter into the stipulation. The proposed stipulation would amend the February 16 order from placement in a closed, locked facility to placement in an independent living facility if one became available. Until such a facility became available, or if Johnny's condition deteriorated after placement, he would remain in a closed, locked facility.
Both the court and Johnny's counsel asked Johnny whether he understood the stipulation and whether he wished to waive his right to a jury trial. In all, Johnny was asked whether he understood the situation by counsel for the Agency once, by the court four times, and by his counsel seven times. Whenever Johnny had a question or appeared confused by the proceedings, either counsel or the court stopped and explained it to him further and ask whether he wished to waive his rights.
After lengthy and substantial questioning by counsel and the court, Johnny was deemed to have a sufficient level of understanding and competence to waive the right to a jury trial and enter into the stipulation. The judgment was formally entered on May 28, 2010, and was retroactive to February 16, 2010. Johnny filed a notice of appeal on June 7, 2010, claiming that he had not knowingly or voluntarily waived his right to a jury trial.
DISCUSSION
The question of whether a conservatee is competent to knowingly and intelligently waive his right to a jury trial presents a question of fact. (Conservatorship of John L. (2010) 48 Cal.4th 131, 154.) We review the entire record in the light most favorable to the trial court's findings and resolve all conflicts and draw all reasonable inferences in favor of the findings. (Conservatorship of Ramirez (2001) 90 Cal.App.4th 390, 401.) Therefore, the findings of the trial court will not be disturbed on appeal if there is substantial evidence to support them, even if there exists evidence to the contrary. (Conservatorship of Isaac O. (1987) 190 Cal.App.3d 50, 57.)
"[B]efore accepting a stipulated judgment on placement, disabilities, and conservator powers, the court on the record must consult with the conservatee to instruct him or her on the consequences of the stipulation and obtain the conservatee's express consent to the stipulation on those issues." (Conservatorship of Christopher A. (2006) 139 Cal.App.4th 604, 613.) Failure to consult with a conservatee directly and obtain an express waiver of rights violates the conservatee's due process rights. (Ibid.)
Here, the court spent a substantial amount of time talking directly with Johnny about his level of understanding, the terms of the stipulation, and the risks and benefits of continuing with the jury trial as opposed to entering into the stipulation. He repeatedly explained the difference between the jury trial and the stipulation, the possible outcomes, and asked Johnny over and over whether he understood. At one point he paused the proceedings to allow Johnny to confer with his attorney off the record. The type of questioning is exactly the type the law intends, and his conclusions derived from this discussion are entitled to deference on appeal.
While Johnny was nonresponsive in some of his answers, and lucid and responsive in others, this alone is not reason to overturn the judgment. (Conservatorship of Waltz (1986) 180 Cal.App.3d 722, 732 [a conservatee who had lucid, responsive moments in addition to manic, psychotic ones was not incompetent for purposes of waiving his rights].) Upon consultation with his counsel and the court, Johnny was able to eventually understand the circumstances and implications of his situation.
As required by law and in addition to the court's questioning, Johnny's counsel engaged in extensive conversation with Johnny to help him understand his options and make an informed decision. (Christopher A., supra, 139 Cal.App.4th at p. 613 [counsel may accept a stipulation after consultation with and the express consent of the client].) Johnny's counsel, like the court, took every opportunity to confer with Johnny, explain the situation, and ensure he understood the consequences of his decision. Counsel only accepted the stipulation with Johnny's express consent. Johnny therefore received competent representation by his counsel.
DISPOSITION
The judgment of the trial court is affirmed.
WE CONCUR: NARES, J., HALLER, J.