Opinion
A161519
06-16-2022
Conservatorship of the Person of C.B., v. C.B., Defendant and Appellant. PUBLIC GUARDIAN OF CONTRA COSTA COUNTY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. MSP0900109)
NEEDHAM, J. [*]
C.B. appeals from an order reappointing respondent as the conservator of his person after a trial pursuant to the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.; LPS Act). He contends (1) the trial court failed to adequately advise him of his right to a jury trial, and C.B. did not waive that right intelligently; and (2) the court's involuntary medication order was not supported by substantial evidence. We conclude the record does not affirmatively show that C.B.'s waiver of his jury trial right was voluntary and intelligent under the totality of the circumstances, and we reverse the order.
I. FACTS AND PROCEDURAL BACKGROUND
A. Prior Proceedings
In January 1998, C.B. was committed to Atascadero State Hospital for restoration of competency to stand trial on criminal charges (Pen. Code, § 1370) and was thereafter transferred to Patton State Hospital. In May 1998, C.B. was transferred to Napa State Hospital for continued psychiatric treatment and restoration to competency; in November 2000, Napa State Hospital determined that C.B. could not be restored to competency and referred him for an LPS conservatorship.
From 2000 through 2019, C.B. was continuously committed under a series of LPS conservatorships (Welf. & Inst. Code, § 5350, et seq.). As to at least the last eleven of those conservatorships (2009-2019), C.B. had accepted the conservatorship without a trial.
B. Proceeding at Issue
In March 2020, the Director of the Contra Costa County Health Services Department (Public Guardian) again filed a petition for reappointment as the conservator of the person of C.B. Supported by the declarations of two physicians, the petition alleged that C.B. remained gravely disabled under Welfare and Institutions Code section 5008, subdivision (h)(1)(A) due to a mental disorder.
The initial hearing on the reappointment petition was held on May 12, 2020. Through his attorney, C.B. objected to reappointment and asked for a court trial by May 26, 2020 or 10 days thereafter. The court found good cause to set the trial on June 23, 2020 due to court congestion, emergency court closure, the expert witness schedule, and the availability of only one public defender for LPS trials. The trial was continued several times for good cause until it finally convened by Zoom videoconferencing on October 27, 2020.
1. Jury Trial Waiver
Before the trial commenced, the court found that C.B. waived his jury trial right in the following exchange: "[COURT]: Sir, you have a right to have a jury trial on this matter. Do you understand that right? [¶] [C.B.]: Yeah. [¶] [COURT]: What's being proposed is that you waive that right and allow the Court to hear your matter and not a jury. Do you understand that, sir? [¶] [C.B.]: Yes, I do, your Honor. [¶] [COURT]: Okay. And understanding that the jury will not hear your case, the Court, this judge, will hear your case and decide beyond a reasonable doubt whether a conservatorship should be granted in your case. Do you understand that, sir? [¶] [C.B.]: Yes, your Honor. [¶] . . . [¶] [COURT]: All right. Thank you. Counsel, do you join and concur in your client's waiver? [¶] [DEFENSE COUNSEL]: Yes, Judge, I do. Thank you. [¶] [COURT]: Thank you. The Court will find that [C.B.] has knowingly, intelligently, and voluntarily waived his right to a jury trial in this matter. . . . Are both sides ready to proceed with the court trial at this time?" Counsel replied in the affirmative.
2. Testimony of Dr. Michael Levin
The Public Guardian presented the testimony of psychiatrist Michael Levin, M.D., who was accepted by the court as an expert in the field of psychiatry and determining grave disability. In preparation for trial, Dr. Levin reviewed records from Idylwood Care Center (the skilled nursing facility where C.B. was placed), met with C.B. via Zoom, and spoke with C.B.'s conservator, Edward Bachmann.
In their interview, C.B. expressed confusion and was unable to state his age. He acknowledged that he was internally preoccupied at times-which meant he heard voices-and that he had a psychiatric illness. C.B. told Dr. Levin that he wanted to live in a place in Richmond given to him by a relative, but he did not know where it was. He thought he had been married at some point, but he did not know his ex-wife's name or where she was. C.B. was confined to a wheelchair and required assistance with bathing and general activities of daily living. Regarding day-to-day events and his overall situation, C.B. reiterated, "I am so confused."
The Idylwood Care Center records indicated that C.B. showed signs of increased paranoia and agitation in December 2019, and in March 2020 he continued to display internal preoccupation, anxious requests, delusional states, and increased paranoia regarding his funds. Dr. Levin opined that paranoia and agitation are symptoms of schizoaffective disorder, a mental illness listed in the DSM-5. In addition, Dr. Levin testified, fixed false beliefs about owning property is a delusion-a belief that cannot be changed even if contradicted by reality-testing-and is a symptom of schizoaffective disorder as well.
Dr. Levin diagnosed C.B. with schizoaffective disorder and opined that C.B.'s symptoms rendered him unable to provide for his shelter and that his persistent issues with reality-testing, delusions, auditory hallucinations, and paranoia would interfere with his functioning outside a skilled nursing facility. C.B. was also unable to live independently because he required nursing care and medications. Dr. Levin concluded that C.B. was gravely disabled.
As to medications, Dr. Levin testified that C.B. had previously been prescribed mood stabilizers (Depakote and Lithium) and an antipsychotic (Haldol). At the time of the trial, C.B. was prescribed Clozaril, an atypical antipsychotic medication. Dr. Levin testified that Clozaril can suppress immune response, so someone taking Clozaril must be checked regularly to ensure that the medication is not causing adverse effects. A skilled nursing facility, like Idylwood Care Center, could provide the necessary monitoring. Records also indicated that C.B. sometimes had trouble swallowing, which required the facility to crush his medication to give it to him.
During cross-examination, Dr. Levin acknowledged that the records showed C.B. was compliant with his psychotropic medication. During redirect examination, however, Dr. Levin explained that C.B. needed supervision with his medication due to a potential choking hazard and to ensure he took the right dosage at the right time. Dr. Levin also testified that C.B. may have difficulties administering his medication due to his confusion and his internal preoccupation, which can interfere with linear thought and focus.
3. Testimony of Deputy Conservator Edward Bachmann
Edward Bachmann, a licensed marriage and family therapist, had been the assigned deputy conservator for C.B. since 2017 and was accepted by the court as an expert in the field of psychology and grave disability. As C.B.'s conservator, Bachmann looked into C.B.'s claim of owning property and an alleged fraud involving his inheritance of a house. Bachmann determined that the papers C.B. gave him were not legal documents and the current owner of the property did not match any family names. Bachmann spoke with C.B.'s ex-wife, who did not indicate that C.B. owned any property or any place he could live. C.B had spoken about his work on cars, but Bachmann found he no longer owned any cars. C.B. told Bachmann his bank account contained thousands of dollars, but Bachmann learned the account was closed. According to Bachmann, statements C.B. made about owning property, cars, or bank accounts were likely delusions, a symptom of mental illness.
4. Testimony of C.B.
C.B. testified that he wanted to live in Richmond or San Pablo with his wife but had not seen her or his children for 35 years. He believed he could take care of his needs on his own or have someone check on him. He testified that he would take the medications he was prescribed, but he could not name his psychotropic medication or specify how he would obtain his medication if on his own.
5. Court's Decision
The court granted the reappointment petition and found beyond a reasonable doubt that C.B. was gravely disabled due to a mental illness (Welf. & Inst. Code, § 5008, subd. (a)) and was at the least-restrictive placement level. The court also granted powers to the conservator and imposed disabilities on C.B. as requested in the petition. As relevant to C.B.'s claims on appeal, the court found by clear and convincing evidence that C.B. lacked the capacity to consent or refuse treatment for the mental illness that was related to his grave disability, granting the conservator the power to involuntarily administer psychotropic medication.
On November 13, 2020, the court issued a written order reappointing the Public Guardian as the conservator of C.B.'s person for a one-year period starting April 21, 2020. This appeal followed.
The conservatorship that C.B. challenges expired in April 2021. C.B. acknowledges the appeal is therefore moot but urges us to decide the issues nonetheless because they are of general interest and likely to recur. (Conservatorship of Manton (1985) 39 Cal.3d 645, 647 fn. 1.) As C.B. points out, virtually every LPS appeal becomes moot before the appeal is decided because the conservatorship lasts only a year, and mootness arguments are typically rejected in the LPS context because errors would otherwise escape review. (Conservatorship of George H. (2008) 169 Cal.App.4th 157, 161, fn. 2.) The Public Guardian did not argue in its respondent's brief that the appeal should be dismissed, but filed a motion to that effect approximately three weeks before the oral argument hearing date. We deny the motion and proceed to the merits.
II. DISCUSSION
A. Waiver of Jury Trial Right
The court must inform a proposed conservatee of the right to have a jury decide the issue of the establishment of the conservatorship. (Prob. Code, § 1828, subd. (a)(6); Welf. & Inst. Code, § 5350 [procedures for LPS conservatorships are the same as that for probate conservatorships, with certain exceptions].) A personal waiver by the proposed conservatee is required, even if the conservatee expressed no preference for a jury trial. (Conservatorship of Heather W. (2016) 245 Cal.App.4th 378, 381, 383 (Heather W.).) A court will uphold the validity of a purported jury waiver" 'if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.'" (People v. Daniels (2017) 3 Cal.5th 961, 991 (Daniels).)
No specific method is required to ascertain whether the defendant's waiver of a jury trial is knowing and intelligent. (People v. Sivongxxay (2017) 3 Cal.5th 151, 167 (Sivongxxay).) However, our Supreme Court has recommended that the trial court advise the defendant of the "basic mechanics of a jury trial in a waiver colloquy, including but not necessarily limited to the facts that (1) a jury is made up of 12 members of the community; (2) a defendant through his or her counsel may participate in jury selection; (3) all 12 jurors must unanimously agree in order to render a verdict; and (4) if a defendant waives the right to a jury trial, a judge alone will decide his or her guilt or innocence." (Id. at p. 169.) Further, the court has recommended that "the trial judge take additional steps as appropriate to ensure, on the record, that the defendant comprehends what the jury trial right entails," such as asking whether the defendant discussed the matter with counsel or whether the defendant understands or has questions about the right being waived. (Id. at pp. 169-170.)
In Sivongxxay, supra, 3 Cal.5th at pp. 167-168, the court held that the defendant's jury trial waiver was knowing and intelligent, even though the court had not advised the defendant that the jury must be impartial and render a unanimous verdict to convict, where the defendant had signed jury trial waivers in prior cases and the trial court had advised him in the present case that he had a right to a jury trial, a jury consists of 12 people from the community, he could participate in the selection of the jury, and a waiver of the right would mean the judge alone would determine guilt or innocence.
The "guidance" set forth in Sivongxxay is "advisory," and "a trial court's adaptation of or departure from the recommended colloquy in an individual case will not necessarily render an ensuing jury waiver invalid." (Sivongxxay, supra, 3 Cal.5th at p. 170.) Thus, the omission of one of the recommended advisements is not fatal per se, and the question remains whether the waiver was knowing, intelligent, and voluntary under the totality of the circumstances. (See People v. Weaver (2012) 53 Cal.4th 1056, 1072-1073 [jury waiver upheld where court advised the defendant that he had a right to the unanimous verdict of 12 jurors and his attorney had explained the difference between a jury trial and a court trial, even though he was not advised of his right to participate in jury selection].)
Nonetheless, it is clear that the trial court must communicate something regarding the nature of the jury trial right that the defendant is about to relinquish. In Daniels, supra, 3 Cal.5th 961, our Supreme Court held that a jury waiver was not valid where the trial court had advised an unrepresented defendant that he had a right to a jury and, by waiving that right, the judge alone, instead of a jury, would make the determination of guilt, special circumstances, and death, but did not "explain anything about the nature of the jury-for example, what constitutes a jury, how a jury is selected, or that jury members must be impartial and their verdict unanimous," and "never inquired whether-even in a general sense-[the defendant] understood what a jury trial entailed, or if he had any questions about the waiver of the jury right." (Id. at p. 994; see id. at p. 987.)
Similarly, in People v. Jones (2018) 26 Cal.App.5th 420, 436-437, the court ruled that the record did not affirmatively show that the defendant's waiver was voluntary and intelligent under the circumstances, where there was no indication the defendant discussed the nature of a jury trial with counsel, and the court had not advised the defendant that she had a right to a jury comprised of individuals drawn from the community; the court merely asked the defendant if she understood she had a right to a jury trial and stated that the trial judge alone would decide the case. (See also People v. Blancett (2017) 15 Cal.App.5th 1200, 1202-1203, 1207 [jury waiver invalid where mentally disordered offender's attorney represented to the court that the defendant was" 'okay'" with having a judge rather than a jury, and the court asked the defendant nothing more than," '[t]hat's okay with you, '" because the court failed to explain the attributes or mechanics of a jury trial, inquire whether the defendant discussed his decision with his attorney, ask whether his attorney explained the differences between a bench and jury trial, or ask the defendant if he had any questions about the waiver].)
Most recently in the context of a reappointment of an LPS conservator, the court in Conservatorship of Joanne R. (2021) 72 Cal.App.5th 1009 rejected the argument that a jury trial waiver was invalid merely because the court had not told the conservatee that she could participate in jury selection. (Id. at p. 1019.) The court instead upheld the waiver, where the trial court had advised the conservatee that a jury is comprised of 12 people from the community, that the jury would hear the evidence and then decide whether the evidence proves beyond a reasonable doubt she is gravely disabled, and that all 12 jurors would have to agree, as distinguished from a court trial in which the judge would make the decision alone. (Id.)
Here, the record does not affirmatively show that C.B.'s waiver of his jury trial right was intelligent under the totality of the circumstances. C.B. said "yes" when the court asked if he understood his right to a jury trial and that, in waiving that right, the judge rather than a jury would decide whether a conservatorship should be granted. But that was essentially what was found to be inadequate in Daniels and Jones, as the court gave C.B. no information explaining the nature of what he was giving up by having the judge alone decide his fate. In particular, unlike Joanne R., the court did not advise C.B. that a jury is comprised of 12 people from the community and that all 12 jurors would have to agree that the evidence proves beyond a reasonable doubt he is gravely disabled. Although C.B.'s attorney concurred in his client's waiver without requesting any further inquiry or admonition, the attorney's silence does not establish that C.B. knew anything about what he was waiving. Nor was there any indication, let alone an inquiry from the court, as to whether the attorney had discussed the jury trial right and waiver with C.B. And while C.B. had been the subject of conservator appointments in the past, none in at least the prior decade had involved a trial at which he would have been informed of his jury trial rights. Under the totality of the circumstances presented by the record, there is no affirmative showing of a knowing and voluntary waiver. (Jones, supra, 26 Cal.App.5th at pp. 435-437 [waiver invalid where no indication the defendant discussed the nature of a jury trial with counsel and court had inquired only if the defendant understood she had a right to a jury trial and stated that the judge alone would decide the case].)
The Public Guardian contends that C.B. forfeited any objection to the validity of his jury trial advisement and waiver because his attorney did not object at trial. C.B. counters there can be no forfeiture because the trial court has an affirmative duty to ensure that the waiver is knowing and intelligent. (Heather W., supra, 245 Cal.App.4th at pp. 382-383.) We find no forfeiture.
Where, as here, the record does not affirmatively show a valid waiver, reversal is required. (People v. Blackburn (2015) 61 Cal.4th 1113, 1135-1136 [total deprivation of a jury trial without a valid waiver in a MDO commitment proceeding requires automatic reversal; the failure to properly advise an MDO defendant of the right to a jury may be deemed harmless only if the record affirmatively shows that the defendant's waiver was knowing and voluntary]; People v. Tran (2015) 61 Cal.4th 1160, 1169 [an "error- resulting in a complete denial of the defendant's right to a jury trial on the entire cause in a commitment proceeding-is not susceptible to ordinary harmless error analysis and automatically requires reversal"].)
Respondent contends we may review for harmless error under People v. Watson (1956) 46 Cal.2d 818, 836, urging that C.B. would not have obtained a better result before a jury given the evidence of his grave disability. For this proposition, respondent relies on Conservatorship of C.O. (2021) 71 Cal.App.5th 894, 919. In Conservatorship of C.O., however, the court found there was substantial evidence to support the conclusion that the conservatee had knowingly and voluntarily waived his right to a jury trial, ruling only that there was a statutory error in failing to obtain the waiver personally from the conservatee. (Conservatorship of C.O., supra, 71 Cal.App.5th at p. 914.) There was no such substantial evidence in this case, so reversal is required. (See Heather W., supra, 245 Cal.App.4th at pp. 382-383 [error in failing to obtain a personal waiver from a LPS conservatee is not harmless, even if the testimony supports the finding that the conservatee is gravely disabled]; Blancett, supra, 15 Cal.App.5th at pp. 1206-1207 [reversing MDO commitment where defendant had not knowingly, voluntarily and intelligently waived his jury trial right].)
Because we reverse the reappointment order, we need not decide whether the court erred in granting the Public Guardian authority to medicate C.B. involuntarily, a ruling that was based on the testimony presented to the trial court alone.
III. DISPOSITION
The order is reversed.
We concur. JACKSON, P.J., BURNS, J.
[*] Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.