Opinion
B291525
10-31-2019
CONSERVATORSHIP OF the Person and ESTATE OF D.P., Public Guardian of the County of Los Angeles, Petitioner and Respondent, v. D.P., Objector and Appellant.
Christopher Lionel Haberman, under appointment by the Court of Appeal, for Objector and Appellant. No appearance for Petitioner and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of section II and section III, subsections B and D.
Christopher Lionel Haberman, under appointment by the Court of Appeal, for Objector and Appellant.
No appearance for Petitioner and Respondent.
KIM, J. I. INTRODUCTION
The Public Guardian of the County of Los Angeles (County) filed a petition under the Lanterman-Petris-Short Act (LPS Act) ( Welf. & Inst. Code, § 5000 et seq. ) for reappointment as the conservator of appellant D.P., alleging that he was gravely disabled as the result of a mental disorder. Following a trial at which the jury found D.P. to be gravely disabled, the trial court granted the petition and ordered reappointment of the County as D.P.’s conservator.
The LPS Act governs the detention and treatment of persons who are dangerous or gravely disabled as a result of a mental disorder. All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On appeal from the reappointment order, D.P. contends, among other things, that the trial court committed prejudicial error by failing to instruct the jury on an element necessary to the gravely disabled finding. In the published portion of this opinion, we hold that the trial court properly instructed the jury using the applicable statutory definition of gravely disabled. In the unpublished portion this opinion, we address and reject D.P.’s other contentions on appeal. We therefore affirm the trial court’s reappointment order. II. FACTUAL AND PROCEDURAL BACKGROUND
See footnote *, ante .
III. DISCUSSION
A. The LPS Act: An Overview
"The LPS Act governs the involuntary detention, evaluation, and treatment of persons who, as a result of mental disorder, are dangerous or gravely disabled. (§ 5150 et seq.) The Act authorizes the superior court to appoint a conservator of the person for one who is determined to be gravely disabled (§ 5350 et seq.), so that he or she may receive individualized treatment, supervision, and placement (§ 5350.1). As defined by the Act, a person is ‘gravely disabled’ if, as a result of a mental disorder, the person ‘is unable to provide for his or her basic personal needs for food, clothing, or shelter.’ (§ 5008, subd. (h)(1)(A).) [¶] ... [¶] The procedures for establishing a conservatorship include a number of requirements pertaining to notice, hearing and trial rights, and other matters. Specifically, the petition for appointment of a conservator of the person and the citation for conservatorship must be served upon the proposed conservatee at least 15 days before the scheduled hearing date, and the proposed conservatee must be given notice of the privileges and rights subject to deprivation as part of the conservatorship. (§ 5350; Prob. Code, §§ 1823, 1824.) A hearing must be held within 30 days of the date of the petition, and the court must ‘appoint the public defender or other attorney for the ... proposed conservatee within five days after the date of the petition.’ (§ 5365.) The proposed conservatee ‘shall have the right to demand a court or jury trial on the issue whether he or she is gravely disabled,’ but must do so before or within five days following the hearing on the conservatorship petition. (§ 5350, subd. (d).)" ( Conservatorship of John L . (2010) 48 Cal.4th 131, 142–143, 105 Cal.Rptr.3d 424, 225 P.3d 554 ( John L . ).) "Court or jury trial shall commence within 10 days of the date of the demand." (§ 5350, subd. (d)(2).)
"The party seeking imposition of the conservatorship must prove the proposed conservatee’s grave disability beyond a reasonable doubt, and a jury verdict finding such disability must be unanimous. ( Conservatorship of Roulet (1979) 23 Cal.3d 219, 235, [152 Cal.Rptr. 425, 590 P.2d 1].) An LPS conservatorship automatically terminates after one year, and reappointment of the conservator must be sought by petition. (§ 5361.)" ( John L., supra , 48 Cal.4th at p. 143, 105 Cal.Rptr.3d 424, 225 P.3d 554.) B. Failure to Commence Jury Trial Within Statutory Time Limit
See footnote *, ante .
C. Instructional Error: Modified CACI No. 4000
D.P. contends that the trial court erred when it failed to instruct the jury with the third element of the CACI No. 4000 definition of "gravely disabled," i.e., to prove a proposed conservatee is gravely disabled, it must be shown "[t]hat [the conservatee] is unwilling or unable voluntarily to accept meaningful treatment." According to D.P., the omission of that element reduced the County’s burden of proof to "less than beyond a reasonable doubt."
1. Background
Prior to commencement of trial, D.P.’s counsel objected to the County’s modified version of CACI No. 4000, which read: "The [County] claims that [D.P.] is gravely disabled due to a mental disorder and therefore should be placed in a conservatorship. In a conservatorship, a conservator is appointed to oversee, under the direction of the court, the care of persons who are gravely disabled due to a mental disorder. To succeed on this claim, the [County] must prove beyond a reasonable doubt all of the following: [¶] 1. That [D.P.] has a mental disorder; and [¶] 2. That [D.P.] is gravely disabled as a result of the mental disorder." The unmodified CACI No. 4000 included a third element in brackets that read: "[3. That [name of respondent ] is unwilling or unable voluntarily to accept meaningful treatment.]" D.P.’s counsel argued that the modified instruction improperly omitted the third element. Counsel also noted, however, that a slightly modified version of that element had been added to the County’s proposed version of CACI No. 4002. Specifically, the last line of the County’s proposed version of CACI No. 4002 was modified to include: "In determining whether [D.P.] is presently gravely disabled, you may consider whether he is able or willing voluntarily to accept meaningful treatment." After a colloquy with counsel, the trial court ruled that it would give the County’s proposed CACI Nos. 4000 and 4002 as modified.
2. Standard of Review/Legal Principles
We review claimed errors in the accuracy or completeness of the jury instructions under the de novo standard of review. ( Conservatorship of P.D . (2018) 21 Cal.App.5th 1163, 1167, 231 Cal.Rptr.3d 79.) "In considering the accuracy or completeness of a jury instruction, we evaluate it in the context of all of the court’s instructions." ( Caldera v. Department of Corrections & Rehabilitation (2018) 25 Cal.App.5th 31, 44–45, 235 Cal.Rptr.3d 262.)
D.P. cites Conservatorship of Davis (1981) 124 Cal.App.3d 313, 177 Cal.Rptr. 369 ( Davis ) and Conservatorship of Walker (1987) 196 Cal.App.3d 1082, 242 Cal.Rptr. 289 ( Walker ) in support of his position that the trial court erred in failing to include CACI No. 4000 ’s third element, which, as noted, requires an additional finding that a proposed conservatee "is unwilling or unable voluntarily to accept meaningful treatment" before a proposed conservatee is considered gravely disabled. The County disagrees and contends the trial court was not required to instruct the jury on the third element, citing Conservatorship of Symington (1989) 209 Cal.App.3d 1464, 1467, 257 Cal.Rptr. 860 ( Symington ), in support.
The Directions for Use for CACI No. 4000 note that there is a split of authority as to whether a jury must be instructed on the third element. The recent decision in Conservatorship of K.P. (2019) 39 Cal.App.5th 254, 251 Cal.Rptr.3d 769 notes this split in authority and follows the reasoning of Symington, supra , 209 Cal.App.3d 1464, 257 Cal.Rptr. 860, which reasoning, as explained below, we also find persuasive.
3. Davis
In Davis, supra , 124 Cal.App.3d 313, 177 Cal.Rptr. 369, the trial court in an LPS Act conservatorship proceeding initiated by the County gave the following instruction to the jury: " ‘You are instructed that before you may consider whether [the proposed conservatee] is gravely disabled you must first find that she is, as a result of a mental disorder, unwilling or unable to accept treatment for that mental disorder on a voluntary basis. If you find that [the proposed conservatee] is capable of understanding her need for treatment for any mental disorder she may have and capable of making a meaningful commitment to a plan of treatment of that disorder she is entitled to a verdict of "not gravely disabled." ’ " ( Id. at p. 319, 177 Cal.Rptr. 369.) At trial, the jury found the proposed conservatee not gravely disabled. ( Id. at p. 317, 177 Cal.Rptr. 369.) The County appealed, arguing that the trial court erred in delivering the instruction. ( Id. at p. 320, 177 Cal.Rptr. 369.) The Court of Appeal disagreed, finding no prejudicial error. ( Id. at pp. 329, 331, 177 Cal.Rptr. 369.)
In reaching that conclusion, the court attempted to harmonize the purpose of the LPS Act, which includes safeguarding individual rights, with section 5008, subdivision (h)(1), which defines the term "gravely disabled." ( Davis, supra , 124 Cal.App.3d 313, 322, 177 Cal.Rptr. 369.) The court noted that section 5352 additionally "provides that a petition to establish a conservatorship shall be filed only after a preliminary determination has been made that the person is gravely disabled as a result of mental disorder and is unwilling, or incapable of accepting, treatment voluntarily." ( Davis, supra , 124 Cal.App.3d at p. 322, 177 Cal.Rptr. 369.) Given the LPS Act’s purpose, the court concluded that "a person sought to be made an LPS conservatee subject to involuntary confinement in a mental institution, is entitled to have a unanimous jury determination of all of the questions involved in the imposition of such a conservatorship ...." ( Id. at p. 329, 177 Cal.Rptr. 369.)
4. Walker
In Walker, supra , 196 Cal.App.3d 1082, 242 Cal.Rptr. 289, the trial court, using the language of the section 5008, subdivision (h)(1) definition, instructed the jury that the term "gravely disabled" means " ‘a condition in which a person, as a result of a mental disorder, is unable to provide for his or her basic personal needs for food, clothing or shelter.’ " ( Walker, supra , 196 Cal.App.3d at p. 1091, 242 Cal.Rptr. 289.) But the trial court further instructed: " ‘If you find that [the proposed conservatee] can survive safely in freedom by himself or with the help of [an] available, willing and responsible family member, friend or other third party and that [the proposed conservatee] is willing and capable of accepting voluntary treatment, then you must find that [the proposed conservatee] is not gravely disabled.’ " ( Ibid ., italics omitted.) The jury found the proposed conservatee to be gravely disabled. ( Id. at p. 1088, 242 Cal.Rptr. 289.)
The court in Walker, supra , 196 Cal.App.3d 1082, 242 Cal.Rptr. 289, held the latter instruction was erroneous because it advised the jury that a conservatorship was inappropriate only if the proposed conservatee "can provide for his needs and is willing to accept treatment." ( Id. at p. 1092, 242 Cal.Rptr. 289.) In reaching this conclusion, the court interpreted the holding in Davis, supra , 124 Cal.App.3d 313, 177 Cal.Rptr. 369 as follows: "The jury should determine if the person voluntarily accepts meaningful treatment, in which case no conservatorship is necessary. If the jury finds the person will not accept treatment, then it must determine if the person can meet his basic needs on his own or with help, in which case a conservatorship is not justified." ( Walker, supra , 196 Cal.App.3d at pp. 1092–1093, 242 Cal.Rptr. 289.)
5. Symington
In Symington, supra , 209 Cal.App.3d 1464, 257 Cal.Rptr. 860, the trial court found the proposed conservatee to be gravely disabled and further concluded that "it was not necessary to determine additionally whether the conservatee was unwilling or unable to accept treatment on her own ...." ( Id. at p. 1466, 257 Cal.Rptr. 860.) On appeal, the conservatee argued, " ‘Grave disability, by definition , includes an unwillingness and/or inability on the part of the proposed conservatee to voluntarily accept treatment for the mental disorder making the conservatee unable to provide for the necessities of life.’ " ( Id. at p. 1467, 257 Cal.Rptr. 860.) The court disagreed. ( Ibid . )
In rejecting the additional requirement for a gravely disabled determination, the court in Symington, supra , 209 Cal.App.3d 1464, 257 Cal.Rptr. 860, noted that "gravely disabled" as defined in section 5008, subdivision (h)(1) was " ‘[a] condition in which a person, as a result of a mental disorder, is unable to provide for his basic personal needs for food, clothing, or shelter[.]’ " ( Symington, supra , 209 Cal.App.3d at p. 1468, 257 Cal.Rptr. 860.) It also noted that the statutory definition of gravely disabled made no mention of a proposed conservatee’s refusal or inability to consent to treatment and that language concerning whether a proposed conservatee was unable or unwilling to accept treatment appeared only in section 5352. ( Symington, supra , 209 Cal.App.3d at pp. 1467–1468, 257 Cal.Rptr. 860.) The court reasoned that section 5352 was enacted to allow treatment facilities to initiate conservatorship proceedings at the time of admission if a patient is uncooperative. ( Symington, supra , 209 Cal.App.3d at p. 1467, 257 Cal.Rptr. 860.) According to the court, that section was not enacted "as an additional element to be proved to establish the conservatorship itself." ( Ibid. ) As the court observed, "many gravely disabled individuals are simply beyond treatment." ( Ibid . ) The court also explained that the language of section 5352 is "not intended to be a legal term, but is a standard by which mental health professionals determine whether a conservatorship is necessary in order that a gravely disabled individual may receive appropriate treatment. A person who, as a result of a mental disorder, is unable to care for her food, clothing, and shelter needs is more likely than not unable to appreciate the need for mental health treatment. If a mental health professional determines this to be so, the person may appropriately be recommended for a conservatorship. Put another way, mental health facilities may initiate conservatorship proceedings before they accept a gravely disabled patient. But the terms are simply not interchangeable, and an individual who will not voluntarily accept mental health treatment is not for that reason alone gravely disabled." ( Symington, supra , 209 Cal.App.3d at p. 1468, 257 Cal.Rptr. 860.) In so concluding, the court disagreed with the implicit holding of Walker, supra , 196 Cal.App.3d at pages 1092–1093, 242 Cal.Rptr. 289. It also distinguished the facts and the jury instructions at issue in Davis, supra , 124 Cal.App.3d 313, 177 Cal.Rptr. 369, noting that "the issue resolved in [ Davis ] did not call for an analysis of the propriety of the instruction. And none was offered." ( Symington, supra , 209 Cal.App.3d at p. 1469, 257 Cal.Rptr. 860.)
We have expressed skepticism of the rationale in Walker, supra , 196 Cal.App.3d 1082, 242 Cal.Rptr. 289. (Conservatorship of George H. (2008) 169 Cal.App.4th 157, 162, fn. 3, 86 Cal.Rptr.3d 666.)
6. Symington is persuasive
We agree with the reasoning of Symington, supra , 209 Cal.App.3d 1464, 257 Cal.Rptr. 860. (See also Conservatorship of K.P., supra , 39 Cal.App.5th at pp. 267–268, 251 Cal.Rptr.3d 769.) In reaching this conclusion, we begin our analysis with the well-established principle that " " ‘[i]nstructions in the language of an applicable statute are properly given.’ " " ( Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1131, 72 Cal.Rptr.3d 382, 176 P.3d 654, quoting Conservatorship of Gregory (2000) 80 Cal.App.4th 514, 520, 95 Cal.Rptr.2d 336 ; 7 Witkin Cal. Procedure (5th ed. 2008) Trial, § 268, p. 321.)
Here, the applicable statute is section 5350, subdivision (b)(1), which provides that a conservator may be appointed "for a person who is gravely disabled as defined in subparagraph (A) of paragraph (1) of subdivision (h) of section 5008." As noted, section 5008, subdivision (h)(1) defines "gravely disabled" as "[a] condition in which a 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." Thus, an instruction based on the express language of this definition, as given by the trial court here, is presumptively correct.
Our conclusion concerning the instruction on the definition of gravely disabled is further informed by section 5350, which provides an exception to the definition of "gravely disabled." It states that a person is not " ‘gravely disabled’ if that person can survive safely without involuntary detention with the help of responsible family, friends, or others who are both willing and able to help provide for the person’s basic personal needs for food, clothing, or shelter." (§ 5350, subd. (e)(1).) But section 5350 provides no similar exception for persons who are able or willing to accept treatment, an omission that strongly suggests the Legislature did not consider an inability or unwillingness to voluntarily accept treatment as an essential element of the gravely disabled definition.
Moreover, section 5008, subdivision (h)(1)(A) makes no cross-reference to other provisions of the LPS Act that do refer to being unable or unwilling to accept treatment. (See, e.g., §§ 5250, subd. (c); 5252; 5350.5; 5352.) Because the role of the court when construing a statute is not to insert what has been omitted ( Code Civ. Proc., § 1858 ; California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 939, 222 Cal.Rptr.3d 210, 401 P.3d 49 ), we cannot expand upon the section 5008, subdivision (h)(1) definition of "gravely disabled."
As D.P. notes, section 5352 "provides that a petition to establish a conservatorship shall be filed only after a preliminary determination has been made that the person is gravely disabled as a result of mental disorder and is unwilling, or incapable of accepting, treatment voluntarily." But, as the court in Symington, supra , 209 Cal.App.3d 1464, 257 Cal.Rptr. 860, explained, section 5352 allows "treatment facilities to initiate conservatorship proceedings at the time a patient is accepted where the individual may prove uncooperative," but does not add an element for proving a person is gravely disabled. ( Symington, supra , 209 Cal.App.3d at p. 1467, 257 Cal.Rptr. 860 ; see also Conservatorship of K.P., supra , 39 Cal.App.5th at p. 268, 251 Cal.Rptr.3d 769.) Further, here, D.P. was subject to a reappointment petition pursuant to section 5361, which requires the state "to prove beyond a reasonable doubt that the conservatee remains gravely disabled." ( Conservatorship of Deidre B . (2010) 180 Cal.App.4th 1306, 1312, 103 Cal.Rptr.3d 825, italics added.) Thus, section 5352 and the third element of CACI No. 4000 would not apply in this context.
The trial court therefore did not err in instructing the jury with modified CACI No. 4000 because D.P.’s unwillingness or inability to accept voluntarily meaningful treatment was not a required element under section 5008, subdivision (h)(1). We note, however, that here the trial court also instructed the jury that it was permitted to consider D.P.’s willingness to accept treatment as one factor in deciding whether D.P. was gravely disabled by delivering its modification to CACI No. 4002 described above.
D. Sufficiency of Evidence: Grave Disability
See footnote *, ante .
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IV. DISPOSITION
The trial court’s order reappointing the County as the conservator of the person and estate of D.P. is affirmed. No costs are awarded on appeal.
We concur:
BAKER, Acting P. J.
MOOR, J.