Opinion
A160841
04-04-2022
Conservatorship of the Person of S.P. v. S.P., Objector and Appellant. PUBLIC GUARDIAN OF CONTRA COSTA COUNTY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. P20-00147)
BURNS, J.
S.P. appeals from an order appointing the Public Guardian of Contra Costa County (public guardian) as his conservator under the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.) for a one-year period. He asserts that the trial court erred in instructing the jury that it could consider his failure to deny or explain the evidence against him in determining whether he was gravely disabled. Because his appeal is moot, we dismiss the appeal without reaching the merits.
Background
Under the Lanterman-Petris-Short Act, "[a] conservator of the person . . . may be appointed for a person who is gravely disabled as a result of a mental health disorder." (Welf. & Inst. Code, § 5350.) Pursuant to Welfare and Institutions Code section 5008, subdivision (h)(1)(A), a person is "gravely disabled" if the "person, as a result of a mental health disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter."
In a separate criminal matter, S.P. was found incompetent to stand trial (Pen. Code, § 1368) and could not be restored to competency. The criminal trial court ordered the public guardian to initiate proceedings to establish a conservatorship for S.P. (Welf. & Inst. Code, §§ 5350, 5008, subd. (h)(1)(A)). The public guardian then filed a petition to establish a conservatorship of the person for S.P.
S.P. requested a jury trial and asserted that he had a right, based on equal protection of the laws, not to be compelled to testify at trial. (See Conservatorship of E.B. (2020) 45 Cal.App.5th 986 (E.B.), review granted June 24, 2020, S261812.) The public guardian presented evidence from three experts that S.P. was gravely disabled because he had a mental illness that made him unable to provide for his food, clothing, and shelter needs. S.P. did not testify at trial and, at the close of the public guardian's case, S.P. rested his case without presenting any evidence.
Based on an instruction proposed by the public guardian, the trial court instructed the jury that:
If a party failed to explain or deny evidence against him when he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence.
It is up to you to decide the meaning and importance of the failure to explain or deny evidence against the party.
(See CACI 205.)
The jury returned a verdict finding S.P. gravely disabled due to a mental disorder. The court appointed the public guardian as the conservator over the person of S.P. for a one-year period, denied S.P. the power to refuse psychotropic medication, and determined that the state hospital was the least restrictive placement for S.P. The one year conservatorship began on August 20, 2020.
After S.P. appealed, the public guardian filed a motion to dismiss the appeal as moot, citing the expiration of the conservatorship on August 20, 2021. In a summary order, this court denied the motion to dismiss.
In the same order, the court deferred ruling on the public guardian's request for judicial notice of the trial court's November 2, 2021 decision granting the petition for reappointment of the conservator after finding S.P. gravely disabled. We grant the request. (See Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
Discussion
The public guardian contends that the appeal should be dismissed as moot, and we agree.
As an initial matter, this court's earlier summary denial of the public guardian's motion to dismiss the appeal as moot does "not preclude later full consideration of the issue, accompanied by a written opinion, following review of the entire record and the opportunity for oral argument." (Kowis v. Howard (1992) 3 Cal.4th 888, 899-901; see also In re Christopher A. (1991) 226 Cal.App.3d 1154, 1161.)
S.P. does not dispute that his appeal is moot because his original one-year conservatorship has expired. (See Conservatorship of J.Y. (2020) 49 Cal.App.5th 220, 225 (J.Y.), review granted Aug. 19, 2020, S263044.) Even so, as S.P. correctly asserts, we have "discretion to decide this otherwise moot case" if we conclude that "it raises important issues that are capable of repetition but likely to evade review." (In re Lemanuel C. (2007) 41 Cal.4th 33, 38, fn. 4; see, e.g., J.Y., supra, 49 Cal.App.5th at p. 225 [addressing question of conservatee's right to refuse to testify, notwithstanding mootness of the appeal, "based on the continuing public importance of the issue, its likely continuing impact on [J.Y.], as well as the inherent difficulty of resolving such an appeal before the expiration of a one-year conservatorship"].)
Here, S.P. asserts that the trial court violated his right to refuse to testify when it instructed the jury that it could consider his failure to "deny [the] evidence against him when he could reasonably be expected to have done so based on what he knew" (CACI 205). (See, e.g., Griffin v. California (1965) 380 U.S. 609, 614-615 [jury instructions or comment by the prosecution that the defendant's failure to testify is evidence of guilt "cuts down on the privilege [of remaining silent] by making its assertion costly"]; People v. Vargas (1973) 9 Cal.3d 470, 477 (Vargas) [instruction allowing jury to take into account the defendant's silence violated the defendant's right to refuse to testify].) Our Supreme Court is currently reviewing the underlying question of whether Lanterman-Petris-Short Act conservatees have a testimonial privilege based on equal protection principles. (See Conservatorship of E.B. (2020) 466 P.3d 1157 [granting review].)
Although there can be no doubt that the question whether Lanterman-Petris-Short Act conservatees have a testimonial privilege is one of public importance, we decline to exercise our discretion to review the propriety of the jury instruction here. Our Supreme Court will issue its decision in Conservatorship of E.B. shortly. One way or the other, the issue will be clarified for courts and litigants. At that point, the instruction issue presented here will be much less likely to recur. (See Vargas, supra, 9 Cal.3d at p. 477.) At the very least, we would expect an attorney representing a conservatee to object to such an instruction, which would allow the trial court to consider the question in the first instance, unlike in this case.
Disposition
The appeal is dismissed.
We concur: JACKSON, P.J., SIMONS, J.