Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. MH98382, Patricia A. Y. Cowett, Judge.
HUFFMAN, J.
T. L. appeals a judgment after jury trial, reestablishing a conservatorship of the person for her under the Lanterman-Petris-Short Act (LPS Act). (Welf. & Inst. Code, § 5000 et seq.) T. L. contends the trial court abused its discretion when, during jury deliberations, it responded to the jury's question about how to proceed due to its current 11-1 deadlock, by allowing the case to be reopened to permit the introduction of additional evidence. (People v. Funes (1994) 23 Cal.App.4th 1506, 1520(Funes); Horning v. Shilberg (2005) 130 Cal.App.4th 197, 208-209(Horning).) The petitioner, the Public Conservator of the County of San Diego (petitioner), had previously prepared a chronology of placements in which T. L. had resided from 1997 to the present, and the court admitted that document as Exhibit 1 at trial in response to the jury's question, after discussions with counsel.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
As will be explained, the procedure used by the trial court was an appropriate exercise of discretion in light of the nature of the jury's question and the discussion with counsel. T. L.'s arguments on appeal are not well taken and the judgment will be affirmed.
I
FACTS AND BACKGROUND FROM PRIOR OPINION AND CURRENT RECORD
In a 2007 prior published opinion, this court outlined the facts under which T. L.'s prior conservatorship was reestablished. (Conservatorship of T. L. (2007) 149 Cal.App.4th 1022.) We said, "In April 2006, the Public Conservator of the County of San Diego filed a petition for the reestablishment of a conservatorship of the person for T. L. under the LPS Act on the ground she remained gravely disabled by a mental disorder and was unable to provide for her basic needs of food, clothing and shelter. The petition sought T. L.'s continued placement in a locked facility and the imposition of certain disabilities, including loss of the rights to drive, enter into contracts, possess a firearm, and refuse or consent to medical treatment and medications. Attached to the petition was a declaration by two physicians that stated T. L. suffered from schizophrenia and could not provide basic care for herself, and imposition of the disabilities was necessary because of her psychosis and poor judgment." (Id. at p. 1026.) In the 2006 proceedings, T. L.'s appointed counsel represented in a sworn declaration that T. L. told her she consented to the reestablishment without a formal court hearing on the matter. We upheld the judgment reestablishing the conservatorship on an ex parte basis, over T. L.'s due process objections.
In an order of December 6, 2007, this court granted T. L.'s unopposed motion for judicial notice of the record in this previous appeal.
Since that reestablished conservatorship was about to expire, petitioner began proceedings in April 2007 to reestablish the conservatorship. T. L. requested a jury trial, which began in July 2007. At that time, she testified that she was 39 years old and had emigrated to the United States some 16 years before. She has a degree from a Chinese medical university and has two children who have both been adopted by others. She has been diagnosed with schizo-affective disorder and at the time of trial was residing at a locked treatment facility in Alpine. Immediately before that, she was hospitalized and resided at a different board and care home, but she left there and lived on the streets for two days, where she had no food, money, or medications. She called the police and asked them to take her to the hospital, which they did.
T. L. testified that she takes several medications at different times of the day, and that they prevent her delusions and hallucinations from coming back, as well as allowing her to sleep. If her conservatorship were discontinued, she would go to a psychiatric hospital to get her medication. She planned to get an apartment with her social security allowance, and said she would take the trolley to shop for food, clothing, and medication. She had been off any conservatorships from 2000 to 2005, but one was then created for her due to her increased stress level during her pregnancy with her second child.
Petitioner called Dr. Mark Melden, a psychiatrist who had interviewed T. L. twice, to testify about the results of his examination. He is qualified as an expert and had reviewed her records and talked to her and staff members who knew her. His inquiries disclosed that T. L. had manic-like symptoms and had been assaultive to staff members at her current and previous care facilities. He adjusted her medications and was able to discuss her illness with her more effectively during their second visit. T. L. told him her mental illness became evident during her mid-20s, and that she has been hospitalized over 20 times due to her symptoms of schizophrenia. She has above average intelligence, but suffers from mental illness, which she does not fully comprehend; intelligence and mental illness are two separate issues. Although she told him she would be willing to take medication for the time being, he did not believe that she would continue to do so.
According to Dr. Melden, living at the Alpine facility helps T. L. comply with her medication and treatment, and she has been getting better under its care. He did not believe she would take her medication or be able to care for herself if she were left to her own devices, since she lacks insight into her condition and has grandiose beliefs. He believed she needed more time at the facility to improve and to become more independent.
At the close of the evidence, the jury was instructed with standard form instructions, including CACI No. 4002, providing in part: "The term 'gravely disabled' means a condition in which a person, as a result of a mental disorder, is unable to provide for their basic personal needs for food, clothing or shelter. [¶] You must determine whether respondent is gravely disabled at the present time." This instruction further told the jury that a showing that T. L. suffered from psychosis, delusions or hallucinations was not enough, byitself, to support a disability finding, and it was necessary to show that she was unable to provide for her basic needs because of the mental disorder.
Likewise, the jury received a standard instruction that it was allowed to consider evidence of the historical course of her mental disorder, if it would have a direct bearing on the determination of whether she is gravely disabled as a result of a mental illness. (CACI No. 4011; § 5008.2.) Standard verdict forms in the language proposed by CACI were prepared.
After the jury began deliberations, the presiding juror sent a note to the trial court stating: "We have thought about the issue and it appears we are deadlocked at 11/1. How should we proceed." The court discussed the matter with counsel and initially gave the jury a standard instruction that the jurors should reach a verdict if they reasonably could, and the case was important to the parties. (CACI No. 5006.) The court asked counsel if it would be appropriate to ask the jurors what might be helpful, and both counsel agreed. The presiding juror responded that they were unsure about the timeline of events, in order to be able to understand the series of diagnoses, and to decide whether at the present moment, T. L. was potentially gravely disabled, and also that they did not know if it was important how many facilities she was in. The court reread the instruction about consideration of the historical course of the mental disorder being appropriate if it had a direct bearing on the issue of grave disability, and that any remoteness of time or dissimilarity of circumstances was also relevant to consider.
After some back and forth discussions about who had records of T. L.'s prior hospitalizations, the petitioner's attorney offered a written chronology of her placement history, that did not show whether the various placements (42 in number, from March 1997 through the present) were voluntary or pursuant to conservatorship. The presiding juror said that information would be helpful, and when the court asked for a stipulation, counsel for T. L. objected that it was necessary to make available to the jury the context of whether those placements were voluntary or under conservatorship. After a discussion at sidebar, the court told the jury: "So we are going to give you a new exhibit, [it] has a chronology in it that you can consider. And this exhibit will be [No. 1.] Okay. [¶] And you are also to assume, based on the stipulation of the parties, that she was not in a conservatorship but was in these facilities during the periods of time as specified on the document."
No further objections were argued and the court reread the instruction given about permissible consideration of evidence of any past failure to take mental health medication when prescribed, or any lack of insight into her mental condition, with respect to determining T. L.'s present ability to provide for her basic personal needs.
After continuing deliberations and a brief recess, the jury returned a unanimous verdict that T. L. could not provide for her own shelter and was presently gravely disabled. Judgment was entered granting the petition to reestablish the conservatorship for one year from the judgment date, July 18, 2007. The court took further testimony from T. L.'s case worker about appropriate placements, and standard terms and conditions regarding treatment and placement in a locked facility were imposed.
In her amended notice of appeal, T. L.'s attorney challenged both the judgment and a previous jurisdictional ruling by the mental health court. No arguments are presented on any previous jurisdictional ruling, however.
II
DISCUSSION
A conservatorship under the LPS Act automatically terminates after one year, and in order for the conservator to reestablish it, a petition to the superior court for reappointment is required, and the relevant issue is whether "the conservatee is still gravely disabled as a result of mental disorder . . . ." (§ 5361.) T. L. contends the judgment reestablishing the conservatorship must be reversed because the court abused its discretion in reopening the case upon learning of the jury's 11-1 deadlock, by allowing the additional evidence, a chronology of placements, to be presented. She contends the petitioner did not meet the criteria for obtaining such an order, i.e., a showing of good cause and due diligence. (Horning, supra, 130 Cal.App.4th at pp. 208-209 .)
A trial court has discretion to order a case reopened to permit the introduction of additional evidence. (Funes, supra, 23 Cal.App.4th 1506, 1520.) "In determining whether a trial court has abused its discretion in denying a . . . request to reopen, the reviewing court considers the following factors: '(1) the stage the proceedings had reached when the motion was made; (2) the [requesting party's] diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence.' [Citation.]" (People v. Jones (2003) 30 Cal.4th 1084, 1110.) If error is found, the court must then assess any prejudicial effect. (Id. at pp. 1111, 1117.)
In Funes, the court noted that there is a danger the jury may accord undue weight to evidence that is allowed to come in after deliberations have begun, and in response to a jury request. (Funes, supra, 23 Cal.App.4th at p. 1521.) For example, no opportunity to rebut it or to put it into context might be afforded at that time. (Id. at pp. 1521-1522.)
In T. L.'s case, she contends that the evidence of her placement history was known all along to petitioner, and it could have been presented earlier. She first argues that this evidence "is not all that significant," since she readily admitted at trial that she was in a locked treatment facility and had previously left a voluntary facility. However, she also contends, "[t]here was no particular point in emphasizing that she had been in other facilities at various points in her lifetime." She believes this was equivalent to a dynamite instruction that unfairly coerced the jury to reach an agreement. (People v. Gainer (1977) 19 Cal.3d 835, 850-855 (Gainer).)
Further, T. L. claims that her counsel merely "acquiesced" to the presentation of the "marginally relevant" exhibit during trial, because any formal objection would have been futile.
We agree with T. L. that the focus of this trial was properly upon whether she was presently gravely disabled, not upon whether she had been so in the past. However, we disagree with her that the trial court abused its discretion in allowing the proceedings to be reopened under these circumstances. First, the issues properly included a consideration of her medical history, including her various placements, whether they were voluntary in nature or not. The jury was previously instructed that it could legitimately consider her history of mental illness, including evidence about various mental health or related support services that she had been provided. This was appropriate for purposes of determining her present status. The evidence included an episode when she left a voluntary care facility and briefly lived on the streets, but then called police to take her to the hospital. The jury asked for guidance in evaluating the evidence, and the trial court properly consulted with counsel in formulating its response, including an instruction that they were to assume, based on stipulation, that she was not in a conservatorship but was in the listed facilities during the specified periods of time. This was consistent with the other instructions and put the evidence in the proper context, so that it was not unduly prejudicial. (Funes, supra, 23 Cal.App.4th at pp. 1520-1522.) Nor is there any indication that this evidence must have had a coercive effect upon the jury, for the same reasons. (Gainer, supra, 19 Cal.3d at pp. 850-855.)
Moreover, T. L. cannot legitimately contend on this record that her attorney presented any sufficient objection to the jury's consideration of this additional evidence, by "acquiescing" to it, under silent protest. (See Conservatorship of Gordon (1989) 209 Cal.App.3d 364, 370 [objections to rulings may be waived if not appropriately presented to the trial court].) The trial court apparently believed a stipulation had been reached, and this is borne out by the record. Even if some misunderstanding occurred, the evidence was not reasonably likely to be misconstrued, nor prejudicial in nature in light of the other evidence and instructions given. (Ibid.)
We also observe that the respondent's brief strongly refutes the arguments made in T. L.'s opening brief, but she has not filed a reply brief nor requested oral argument. The proper function of a reply brief is to point out any inadequacies in the respondent's brief arguments or authorities, and it is difficult not to construe the absence of any such effort to be a concession on her part. (See In re Tiffany Y. (1990) 223 Cal.App.3d 298, 302-303 [the proper role of a reply brief].)
In conclusion, the record shows the trial court diligently reinstructed the jury on the relevant points as raised by their question, and these points were well within the scope of the issues presented for determination. The court fully consulted with counsel about the jury's question and its decision to allow the exhibit to be presented, with the acquiescence of counsel, did not in any way exceed the bounds of reason. (Horning, supra, 130 Cal.App.4th at pp. 208-209.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE Acting P. J., AARON J.