Opinion
A150709
06-19-2018
Conservatorship of the Person of J.S. PUBLIC GUARDIAN OF CONTRA COSTA COUNTY, Petitioner and Respondent, v. J.S., Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. P1601095)
I. INTRODUCTION
In January 2015, J.S. was found incompetent to stand trial on charges that he committed multiple sex offenses against a child under age 14 (Pen. Code, § 288, subd. (a)) and against a child 10 years or younger (Pen. Code, § 288.7, subd. (b)). Thereafter, J.S. was committed to Napa State Hospital. (See Pen. Code, § 1370.01 et seq.) In April 2016, Napa State Hospital advised the court there was no substantial likelihood J.S. would regain mental competency prior to the expiration of his commitment, and in January 2017, a jury found the requirements were met to establish a mental health conservatorship for J.S. under the Lanterman-Petris-Short Act (the LPS Act). (Welf. & Inst. Code, § 5000 et seq., § 5350 et seq.)
References to a statute are to the Welfare & Institutions Code, unless otherwise indicated.
The following month, on February 1, 2017, the trial court filed an order appointing the Public Guardian of Contra Costa County (Public Guardian) as J.S.'s conservator and setting a placement hearing (§ 5008, subd. (h)(1)(B)). J.S. appeals from that order, contending that the trial court committed reversible error by permitting the jury to consider evidence of the treatment he would receive if he was placed under conservatorship. We reject this contention and affirm the order.
II. MURPHY CONSERVATORSHIPS
"The LPS Act, which governs the involuntary treatment of the mentally ill in California, was enacted in order to end 'the inappropriate and indefinite commitment of the mentally ill, providing prompt evaluation and treatment of persons with serious mental disorders, guaranteeing and protecting public safety, safeguarding the rights of the involuntarily committed through judicial review, and providing individualized treatment, supervision and placement services for the gravely disabled by means of a conservatorship program.' [Citations.]" (County of Los Angeles v. Superior Court (2013) 222 Cal.App.4th 434, 442 (Kennebrew).)
The present case involves a specific type of conservatorship authorized by the LPS Act, which is commonly referred to as a Murphy conservatorship. "A defendant who, as a result of a mental disorder, is adjudged not competent to stand trial on a felony charge may be committed to a state hospital for no more than three years. [Citations.] If, at the end of the three-year period, the medical staff determines there is no substantial likelihood the defendant will regain mental competence in the foreseeable future, the defendant must be returned to the court for further proceedings. [Citations.] The three-year period under [Penal Code] section 1370, subdivisions (a) and (c), applies to the aggregate of all commitments for treatment for incompetency regarding the same charges. [Citation.]" (People v. Reynolds (2011) 196 Cal.App.4th 801, 806.)
"The Murphy conservatorship was added to 'address the difficult problem of integrating and resolving the conflicting concerns of protecting society from dangerous individuals who are not subject to criminal prosecution, preserving a libertarian policy regarding the indefinite commitment of mentally incompetent individuals who have yet to be convicted of criminal conduct, and safeguarding the freedom of incompetent criminal defendants who present no threat to the public.' [Citation.]" (People v. Karriker (2007) 149 Cal.App.4th 763, 775 (Karriker).) Before this commitment scheme was incorporated into the LPS Act in 1974, there was no specific provision in that statute " 'for commitment of criminal defendants who were found incompetent to stand trial. While such defendants may have fit into the category of persons who are a danger to themselves or others so that short term commitments under the LPS Act were possible, they would not necessarily fit into the category of "gravely disabled" persons necessary for long-term commitment. Thus, if the LPS Act were used to commit incompetent criminal defendants, the maximum period of commitment would typically be ninety days.' " (Id. at p. 776.) Following the enactment of the Murphy commitment scheme, " 'criminal defendants found incompetent to stand trial are now subject to an initial commitment for a definitely limited period not to exceed three years. Thereafter, any further commitment may occur only if the defendant falls within' " the Murphy commitment standards. (Ibid.)
Karriker, supra, 149 Cal.App.4th 763, contains a useful overview of the LPS Act and other statutory schemes for establishing conservatorships for mentally incompetent individuals.
"Once an incompetent defendant has been committed for the maximum commitment period, if it appears to the court that the defendant is 'gravely disabled,' the court shall order the conservatorship investigator to initiate a 'Murphy conservatorship.' [Citations.] The court may impose a Murphy conservatorship if it finds the defendant, as a result of a mental disorder, ' "represents a substantial danger of physical harm to others." ' [Citations.] Alternatively, the court can dismiss the charges and order the defendant released, without prejudice to the initiation of alternative commitment proceedings under the Lanterman-Petris-Short Act. [Citations.]" (People v. Reynolds, supra, 196 Cal.App.4th at p. 806, fn. omitted.)
A defendant for whom a Murphy conservatorship is sought has the right to a jury trial on the issue whether he or she is gravely disabled. (§ 5350, subd. (d).) In this context, a grave disability is defined as: "A condition in which a person, has been found mentally incompetent under Section 1370 of the Penal Code and all of the following facts exist: [¶] (i) The complaint, indictment, or information pending against the person at the time of commitment charges a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person. [¶] (ii) There has been a finding of probable cause on a complaint pursuant to paragraph (2) of subdivision (a) of Section 1368.1 of the Penal Code, a preliminary examination pursuant to Section 859b of the Penal Code, or a grand jury indictment, and the complaint, indictment, or information has not been dismissed. [¶] (iii) As a result of a mental health disorder, the person is unable to understand the nature and purpose of the proceedings taken against him or her and to assist counsel in the conduct of his or her defense in a rational manner. [¶] (iv) The person represents a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder." (§ 5008, subd. (h)(1)(B).)
A Murphy conservatorship automatically terminates after one year. (§ 5361.) "If upon the termination of an initial or a succeeding period of conservatorship the conservator determines that conservatorship is still required, he may petition the superior court for his reappointment as conservator for a succeeding one-year period." (Ibid.)
In the present case, as noted, J.S. was placed in a one-year Murphy conservatorship following a determination by a jury that he suffers from a grave disability and represents a substantial danger of physical harm to others. J.S. contends that jury finding must be reversed.
III. SUMMARY OF EVIDENCE FROM CONSERVATORSHIP TRIAL
A. Pending Criminal Charges Against J.S.
Jane Doe testified she was nine years old when J.S. started dating Jane's mother and moved into her family home. J.S. repeatedly came into Jane's room at night while she was asleep, undressed her, and sexually molested her. It happened many times and J.S. told Jane if she said anything about it something bad would happen to her mother. J.S.'s conduct included penetrating Jane with his finger, orally copulating her, and forcing her to orally copulate him. He also attempted to have intercourse with her but failed. After the family moved, Jane began sharing a room with her brother. J.S. continued to come to her room at night, and sometimes offered her money, but she would just lay there and pretend to be asleep so he would go away. Eventually, Jane moved to her father's house after telling him what J.S. had done.
In April 2010, police officers interviewed J.S. about his interactions with Jane Doe. A video and transcript of that interview was introduced into evidence at the conservatorship trial. J.S., who was 48 when he gave the 2010 interview, told the officers he was bipolar and on medication. He admitted that he had used illegal drugs for 30 years but said he had been clean for one month.
J.S. told the officers about an incident involving Jane Doe that had occurred the previous year when Jane was nine. One night Jane came into his room where he was watching television. According to J.S., "we were just kissing, I was kissing her, and she performed oral sex on me." J.S. said it only happened once, that he did not say anything to Jane beforehand, she just started doing it, and he did not try to have intercourse with her or "finger her." He said that she came on to him, that she was very advanced, and that she approached him as "a boyfriend or a father figure and stuff like that," but he never had sex with her and told her it would never happen again and it never did.
J.S. told the officers that Jane Doe acted like what she was doing was "the thing to do," and he thought she had done it before. J.S. said he guessed it was his fault, but she was the one who pulled down his pants and exposed his penis and she was a "very, very fast little girl." J.S. speculated that Jane Doe had seen it somewhere before because he did not teach her how to do it. He also stated: "I never touched her, fondled her, penetrated her. I don't know where she learned it from, but she's very advanced." J.S. also told the officers that he thought Jane should live with him and Jane's mother because they loved her and took "good care of her." He wanted to continue to have a relationship with Jane Doe as her stepdad.
B. Expert Testimony
Jennifer Weinstein, a licensed clinical psychologist, testified as an expert in psychology and on issues of grave disability and current dangerousness. Weinstein reviewed J.S.'s medical history and records and his police interview, and in November 2016, she interviewed J.S. and conducted an evaluation to determine his level of risk and dangerousness.
Weinstein offered the opinion that J.S. was currently substantially dangerous due to several mental disorders. J.S. has bipolar 1 with psychotic features, the symptoms of which range from hallucinations, to paranoia, to the inability to differentiate reality from fantasy. J.S. also has a neurocognitive disorder not otherwise specified, which impairs his executive functioning, memory, and ability to learn. He has an antisocial personality disorder, which can result in a lack of empathy, risk-taking, impulsivity, irresponsibility, and criminal behavior. And J.S. suffers from amphetamine dependency, alcohol dependency, and polysubstance dependency.
Weinstein testified that the results of her risk assessment supported her conclusion that J.S. was a current substantial danger to the physical well-being of others as a result of his mental disorders. He scored in the 90th percentile as having psychopathic tendencies, and he scored in the moderate to high range on tests assessing his risk of violence and his risk of sexual offense recidivism. Weinstein also concluded that J.S. should receive treatment in a structured setting due to his cognitive deficiencies, impulsivity, and difficulty initiating problem-solving behavior. According to Weinstein, J.S. does not express remorse or appear to comprehend the harm he caused Jane Doe.
Weinstein testified that combining the results of the risk evaluations with J.S.'s complex diagnosis demonstrated that he would be a current danger to others or himself if he was released from a structured environment to a community setting, where he would have to deal with so many complex issues and impairments on his own. Weinstein found no evidence that J.S. had received treatment for his sex abuse or substance abuse and she opined that he would not be able to complete that kind of treatment without structure and assistance due to his mental impairments.
Michael Levin is a psychiatrist who testified as an expert on psychiatry and grave disability. Levin diagnosed J.S. with bipolar disorder, polysubstance abuse, and antisocial personality disorder. J.S. also has a cognitive deficiency attributable to a past physical trauma and his substance abuse. He responds to medication, but his dosages need to be monitored, and he has a history of medication non-compliance. Levin offered the opinion that J.S. is currently dangerous for a combination of reasons including that he suffers from mental disorders, his symptoms can recur even in a controlled environment if he does not take his medication for two days, he cannot be rendered competent to stand trial, and he has never successfully completed a treatment program for substance abuse or sexual offenders.
Melinda Schrock, a licensed marriage and family therapist employed by the Public Guardian, testified as an expert on grave disability. Schrock met with J.S. three times over the summer and fall of 2016 and made the decision on behalf of the Public Guardian to petition for a Murphy conservatorship. Schrock testified that J.S fit the criteria for of a conduct disorder before he was the age of 15 and was first diagnosed with bipolar disorder at age 17. J.S. also has a 30-year history of substance abuse and a documented history of difficulty managing his mental illness. J.S. understands he is mentally ill, but does not understand his symptoms or how to cope with them.
Schrock testified that she did not find any record that J.S. had been treated for substance abuse or being a sex offender and offered the opinion that the path for him to become successful and reduce his dangerousness would be for him to gain "coping skills" so he could "manage his mental illness and his impulse to use substances." Schrock also gave the opinion J.S. is a current substantial danger to the physical well-being of others as a result of mental illness. His mental illness symptoms are the impetus for him to use illegal drugs, his failure to take his medication leads to violent behaviors, and his lack of coping skills makes him violent and a current danger to others.
Christopher Fisher is a psychologist whose license expired because he did not complete continuing education requirements. Over the Public Guardian's objection, the trial court qualified Fisher as an expert in psychology and risk assessment. Fisher diagnosed J.S. with a bipolar disorder and an unspecified major neural cognitive disorder, but concluded he does not have an antisocial personality disorder. According to Fisher, J.S.'s antisocial behaviors are attributable to his bipolar disorder and substance abuse. Furthermore, although J.S. did suffer from substance abuse dependency in the past, he has reached a sustained point of sobriety.
Fisher questioned the validity of tests Weinstein used to assess J.S.'s risk of recidivism, and disagreed with her conclusions. Fisher testified that the assessment he performed showed that J.S. is in the low range for psychopathy traits, and falls within a group of sex offenders that have a 3.6 percent rate of reoffending within five years. According to Fisher, J.S. had demonstrated some understanding of his prior crimes and substance abuse problems. He has a realistic goal of being able to get a job and integrate into the community, and an appropriate plan to live with his brother, away from his mother's home where he had problems in the past. According to Fisher, J.S. has a high level of family support by comparison to other cases.
Fisher also testified that J.S. had never received sex offender treatment, and that it would be "a very good idea" for him to attend sex offender treatment while he lives with his brother in the community. Fisher acknowledged that sex offender treatment does not always work, but testified that internal motivation is important, and that J.S. had taken a good first step by admitting to some of the conduct he was accused of, even though he "definitely has minimized it."
C. J.S.'s Family Support and Release Plan
Three of J.S.'s brothers, John, Eric, and Joe testified about J.S.'s family history and his plan if a conservatorship is not imposed. When J.S. and his brothers were growing up, their mother struggled with mental illness, and their mother and father were both drug addicts. All six children in the family abused drugs at some time or other. J.S. began to show symptoms of mental illness when he was 17, after he was injured in an accident. He used drugs in his 20's and 30's, and in John's opinion, J.S. never gave his mental health mediation a chance to work because he was also taking illegal drugs.
All three brothers testified about their own prior struggles with addiction. John, who spent time in prison for firearms and methamphetamine sales, testified that he has been clean of drugs since March 2000. Eric testified he was addicted to drugs and alcohol for most of his life, but has been clean and sober for 17 years. Eric was in prison from 2001 until 2010 for drug and firearm offenses. Joe testified that he used to have issues with drugs and alcohol, but he has not used drugs for at least 30 years, and occasionally has a glass of wine at dinner.
J.S.'s brothers developed a plan for J.S. should he be released into the community. He will live with Eric, who has a home in Fairfield about seven minutes away from John. Eric will monitor J.S. closely, and if he stops taking his medication or has any type of relapse, Eric will "instantly" take him to a doctor or the hospital and get him into a program. Eric's girlfriend, who works as a resource specialist for women released from prison, will be another resource for J.S.
J.S. cannot stay with John or spend time in his home during the weekdays because John's wife runs a large daycare business out of their home. However, John will be available during the day to help watch over J.S. and provide transportation. John has made arrangements for J.S. to receive therapy from John's personal friend, Bill Haden, who is a "marriage and psych counselor." He will also take J.S. to other programs as suggested by Haden. Joe, the oldest sibling and father figure in the family, will be available to help out on weekends if needed.
D. The Jury's Verdict
The jury completed a special verdict form pursuant to which it made the following findings by a preponderance of the evidence: (1) J.S. "has been found mentally incompetent under section 1370 of the Penal Code"; (2) "the information pending against [J.S.] at the time of commitment charges a felony involving death, great bodily harm, or serious threat of the physical well-being of another person"; (3) "the information has not been dismissed"; (4) "as a result of a mental disorder, [J.S.] is unable to understand the nature and purpose of the proceedings taken against him, and is unable to assist counsel in the conduct of his defense in a rational manner." The jury also found that "beyond a reasonable doubt" J.S. "is gravely disabled because he represents a current substantial danger of physical harm to others due to a mental disorder."
IV. DISCUSSION
A. Issue on appeal
J.S. does not challenge the sufficiency of the evidence to support the jury's findings outlined above, including the finding that he is currently dangerous. Instead, he argues that the trial court committed reversible error by permitting the jury to consider the nature and quality of the treatment he would receive if a Murphy conservatorship was established for him. Specifically, J.S. contends that the following evidence should not have been presented to the jury:
(1) In response to a question about why risk assessments are important, Weinstein testified, among other things, that the higher the risk, the more "things" there are that must be in place to protect the community and assist the individual. Weinstein then confirmed that a conservatorship was one way to control that risk, and explained that "[t]he conservator steps in and assists the—takes over for decision-making and makes treatment decisions in order to protect the patient and the general public," and also has the authority to determine an appropriate placement to meet the needs of the individual.
(2) When Weinstein testified about why she believed J.S. would benefit from sex offender and substance abuse treatment, she stated that "[i]n my opinion, treatment for [J.S.] at this point should be in an institutional setting."
(3) After J.S.'s brothers completed their testimony, the Public Guardian re-called Schrock as a rebuttal witness. Schrock testified, among other things, that J.S. would "benefit from more intense treatment and in a supervised setting," that there is a lot of time consuming work that needs to be done, and if J.S. is "in a supervised setting, he can get that treatment."
(4) After Schrock completed her rebuttal testimony, a juror asked this question: "Should [J.S.] be released to his family, would there be any sort of court supervision in his treatment or handling?" After discussion with counsel, the court made this statement to the jury: "If [J.S.] is not found to be gravely disabled, he will not be under any court orders and will not be legally controlled by the court or anyone else other than the ordinary laws that apply to other adults generally. As I stated at the start of the case, if he's placed on conservatorship, the County Director of Health Services, subject to the direction of the court, will control his day-to-day activities, including placement in an appropriate facility that achieves the purposes of his mental health treatment and the protection of the public."
J.S. does not tailor his analysis to any specific item of evidence listed above. Instead, he contends that all of this evidence was objectionable for the same reason—because it pertained to the consequences of imposing a Murphy conservatorship. J.S. argues that evidence regarding the treatment or supervision that will be available if a conservatorship is imposed was both irrelevant and prejudicial.
B. Mootness
The order appointing a conservator for J.S. was in effect for a one-year period that expired on January 25, 2018. Therefore, we sought supplemental briefs from the parties discussing why this appeal is not moot. " 'As a general rule, an appellate court only decides actual controversies. It is not the function of the appellate court to render opinions " ' " 'upon moot questions or abstract propositions, or . . . declare principles or rules of law which cannot affect the matter in issue in the case before it.' " ' " [Citation.] "[A] case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief. [Citation.]" ' " (People v. Gregerson (2011) 202 Cal.App.4th 306, 321.) However, "[a]n appeal is not moot if it raises issues that are capable of repetition yet avoiding review. [Citation.]" (K.G. v. Meredith (2012) 204 Cal.App.4th 164, 175 [collecting cases].)
J.S. contends that this appeal is not moot because the legality of any subsequent Murphy conservatorship depends on the validity of the finding of current dangerousness in this case. This argument is factually unsound and not supported by legal authority. However, J.S. also contends that he raises an important issue, which is likely to recur but evade review because Murphy conservatorships expire after one year. This argument has merit. (K.G. v. Meredith, supra, 204 Cal.App.4th 164, 175 ["Because of the short terms of temporary and one-year conservatorships and the lengthy process of a typical appellate proceeding, it is likely that any future litigation raising the issues on appeal here would also become technically moot and thus potentially evade appellate review."].)
In response to our request for supplemental briefing, the Public Guardian filed a motion to dismiss this appeal as moot, accompanied by evidence of a February 6, 2018 order reappointing a conservator of the person of J.S. for a one-year period commencing January 25, 2018. The order states that J.S. accepted the current conservatorship with all rights reserved, including the right to a jury trial, and that a review hearing is set for June 5, 2018. The Public Guardian argues that this order demonstrates there is no actual controversy between the parties because J.S. accepted the Public Guardian's reappointment without demanding a jury trial. However, as the Public Guardian concedes, the reason J.S. took this course of action was so that he could complete sex offender treatment before exercising his right to another jury trial regarding the requirements for placing him under a Murphy conservatorship.
Under these circumstances, we conclude the controversy between these parties is likely to recur. Therefore, we deny the Public Guardian's motion to dismiss this appeal and exercise our discretion to address the merits of J.S.'s claim.
We grant the Public Guardian's request for judicial notice of evidence pertaining to the reappointment proceeding. However, the redundant request to take additional evidence pursuant to Code of Civil Procedure section 909 is denied.
C. Analysis
J.S. first contends that, at a trial conducted pursuant to the LPS Act, "the jury is not supposed to consider as part of their deliberations the type of treatment, care or supervision that would be provided to a conservatee." As support for this very general claim, J.S. cites Conservatorship of Baber (1984) 153 Cal.App.3d 542, 543 (Baber).
Baber, supra, 153 Cal.App.3d 542, was a public guardian's appeal from an order denying a petition to reestablish a conservatorship under a provision of the LPS Act, which defines a grave disability as: " '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 . . . .' " (Id. at p. 551.) The appellate court found that the trial court committed reversible errors by (1) refusing to allow the public guardian to call the respondent as a witness, and (2) failing to properly instruct the jury that the respondent could be found gravely disabled if "he was, as a result of a mental disorder, either unwilling or unable to accept treatment." (Id. at p. 554.)
In Baber, supra, 153 Cal.App.3d 542, the public guardian also argued that the trial court erred by refusing to give the jury the following special instruction: " 'You are instructed that the matter of what kind or type of treatment, care or supervision shall be rendered is not a part of your deliberation, and shall not be considered in determining whether or not Robert Baber is or is not gravely disabled. The problem of treatment, care and supervision of a gravely disabled person and whether or not he shall be detained in a sanitarium, private hospital, or state institution, is not within the province of the jury, but is a matter to be considered by the conservator in the event that the jury finds that Robert Baber is gravely disabled.' " (Id. at p. 553, fn. 7.) The public guardian argued this instruction was crucial because without it the jury was free to use evidence regarding the range of available treatments for the respondent's condition as proof that he would likely accept treatment even if a conservatorship was not imposed. The Baber court found that it was highly unlikely the jury drew that conclusion, but nevertheless agreed that the public guardian was entitled to the instruction. (Id. at pp. 553-554.)
Nothing in Baber supports the evidentiary objections J.S. advances in this appeal. Baber did not involve a Murphy conservatorship, but a different type of LPS conservatorship, which is established for individuals whose mental disorder renders them unable to provide for their own basic needs, and which requires proof that the proposed conservatee is unable or unwilling to accept treatment. (Baber, supra, 153 Cal.App.3d at p. 554.) On their face, the reversible errors that occurred in Baber could not have occurred in a case involving a Murphy conservatorship.
The only aspect of Baber that is arguably relevant here pertains to the appellate court's approval of the special jury instruction proposed by the public guardian in that case. (Baber, supra, 153 Cal.App.3d at p. 554.) That analysis is factually inapposite because in Baber it was the public guardian rather than the proposed conservatee who was concerned that the jury would misconstrue evidence regarding the type of treatment that was available for the allegedly grave disability at issue. Regardless, in response to the Baber decision, the Judicial Council of California drafted CACI No. 4004, which states: "In determining whether [name of respondent] is gravely disabled, you must not consider or discuss the type of treatment, care, or supervision that may be ordered if a conservatorship is established." In this case, the trial court gave CACI No. 4004. Thus, J.S.'s jury was explicitly instructed not to use evidence regarding possible treatment options for J.S. as substantive proof that he is gravely disabled.
Taking a different tack, J.S. contends the evidence outlined above was inadmissible because the jury must never consider the consequences of their verdict. This rule derives from criminal cases. (e.g., People v. Moore (1968) 257 Cal.App.2d 740, 750.) As J.S. points out, it has also been applied in some cases involving civil commitments to state hospitals. (People v. Kipp (1986) 187 Cal.App.3d 748 (Kipp); People v. Collins (1992) 10 Cal.App.4th 690 (Collins); People v. Rains (1999) 75 Cal.App.4th 1165 (Rains).)
Kipp, supra, 187 Cal.App.3d 748, was an appeal from an order extending the state hospital commitment of a defendant found not guilty by reason of insanity of committing arson, pursuant to a jury finding that the defendant still suffered from mental disease and posed a substantial danger to others. (Pen. Code, § 1026.5, subd. (b)(6).) The appellate court affirmed the order, but found that the trial court committed nonprejudicial error by giving a special instruction proposed by the prosecution that if the jury found the defendant no longer posed a danger to himself or others, he would be released without further court supervision or future treatment. (Kipp, at pp. 749-750.) The court reasoned that there could "be no purpose to advising a jury of the consequences of its decision . . . except to improperly deflect its attention from the issue of the defendant's current mental condition," but the error was not prejudicial because "[t]he prosecution's evidence that [Kipp] still suffered from severe mental disorders and was not yet ready for release [from] the hospital was consistent, overwhelming, essentially unrebutted, and even found support in Kipp's own testimony." (Id. at pp. 751-752.)
In Collins, supra, 10 Cal.App.4th 690, the appellant was convicted of grand theft, served his sentence, and was then involuntarily committed to a state hospital for treatment during his parole period pursuant to a determination that he met the criteria of a mentally disordered offender (MDO) (Pen. Code, § 2966). (Collins, at pp. 692-693.) The Collins court found that the trial court erred by instructing the jury at the MDO trial that their verdict would determine whether appellant "should be hospitalized or released on parole." (Id. at p. 695.) The court also concluded that this error, other significant instructional errors, and the fact that the prosecutor "devote[d] his opening statement and closing argument to the consequences of the verdict" were cumulatively prejudicial. (Id. at pp. 696, 698.)
Rains, supra, 75 Cal.App.4th 1165, was an appeal from an order subjecting the appellant to an involuntary commitment to a state hospital for treatment as a sexually violent predator (SVP) (Pen. Code, § 6600 et seq.). (Rains, at p. 1167.) The Rains court held that, at a trial under the SVP Act, "evidence of the consequences of the jury's finding as to whether the defendant is or is not a sexually violent predator is not relevant and therefore not admissible." (Ibid.) Thus, the Rains trial court erred by allowing the prosecution's experts to testify that a "true" finding would result in civil commitment to a psychiatric facility for treatment and that the commitment would be reviewed every two years. (Id. at p. 1171.) But the error was not prejudicial because evidence the defendant was an SVP was undisputed, he presented no defense, the testimony was a brief response to a juror's concern that a "true" finding would result in a prison sentence, the trial court instructed the jury not to consider the consequences of the verdict, and the prosecutor told the jury, " ' It is not your function to decide what should happen to' " the defendant. (Id. at pp. 1170-1172.)
J.S. relies on each of the cases discussed above, while the Public Guardian distinguishes them. Neither side discusses Conservatorship of P.D. (2018) 21 Cal.App.5th 1163 (P.D.), which was decided after this appeal was fully briefed. P.D. was an appeal from an order establishing a conservatorship under the LPS Act for an individual who was unable to provide for his own basic needs due to a mental disorder. (Id. at p. 1165.) The P.D. court found the trial court committed nonprejudicial error by giving special jury instructions that informed the jury about the consequences of imposing a conservatorship. The P.D. court framed the issue as a question of relevancy, explaining: "As in Kipp, Collins, and Rains, information about the consequences of conservatorship for P.D. was irrelevant to the only question before P.D.'s jury: whether, as a result of a mental disorder, he is unable to provide for his basic personal needs for food, clothing, or shelter. (§ 5008, subd. (h)(1)(A).)" (Id. at p. 1169.)
Like the other cases discussed above, P.D. did not involve a Murphy conservatorship, but we agree with its reasoning; the determinative issue is whether evidence regarding the consequences of imposing a conservatorship is relevant to any question before the jury. " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
In the present case, the jury was asked to decide whether J.S. "is gravely disabled because he represents a current substantial danger of physical harm to others due to a mental disorder." J.S. presented evidence that he is not gravely disabled because his family has a plan to provide him with supervision and treatment that will make him safe. By taking this position, J.S. put at issue a question that was not raised in any of the published cases discussed above, namely: what level of treatment and supervision is required to ensure that J.S. will not pose a substantial danger of physical harm to others due to his mental disorder. All the evidence challenged on appeal was relevant to that question.
J.S. appears to argue that he was entitled to show that his family plan would make him safe in the community, but the Public Guardian was barred from presenting its own evidence about the type of treatment that would be necessary to reduce J.S.'s dangerousness. We find no authority for this double standard. As the jury was instructed, the treatment available by virtue of a conservatorship is not relevant to prove that the proposed conservatee is gravely disabled. But the primary dispute in this case pertained to a more fundamental issue, i.e., what type of treatment and level of supervision was necessary to make J.S. currently safe. Arguably, testimony on that relevant matter invited an inference that J.S. would receive a high level of care if a conservatorship was imposed, but J.S. invited that inference, as the trial court explained during a break in the trial proceeding: "Well, I understand the concern, but the basis for my ruling was that in the defense case, the relatives came in and said, we'll make sure he gets treated if he comes home with us, so it was fair rebuttal for the petitioner to say he needs to be treated in a supervised setting. I think that's rebuttal. And I understand the problem, but I think my ruling is appropriate." J.S. fails to demonstrate that this discretionary ruling was unsound. (See People v. Sisuphan (2010) 181 Cal.App.4th 800, 813 [evidence rulings reviewed for abuse of discretion].)
In a related argument, J.S. objects to general language in a few jury instructions, which discussed the fact that if a conservatorship was imposed, J.S. would be under court supervision and the conservator would control his day-to-day activities, including his placement in an appropriate facility. J.S. argues that these instructions undermined the function of CACI No. 4004, which was to ensure that the jury would make an objective determination about J.S.'s current dangerousness without performing a comparative analysis to determine which outcome would pose the least danger to the community.
First, J.S. did not object to these instructions in the trial court. Second, we are not persuaded that the jury misconstrued general instructions regarding the nature and purpose of a Murphy conservatorship. The premise of this instructional objection and the appeal generally is that evidence regarding the best way to supervise and treat J.S. was irrelevant. As we have explained, however, that evidence was relevant because it was inextricably related to the determination whether J.S. is a current danger to the community. Furthermore, the jury was explicitly instructed that when it decided whether J.S. suffered from a grave disability, it was not to consider the type of treatment or supervision J.S. would receive if a conservatorship was imposed. J.S. provides no reason to doubt that the jury understood this instruction and followed it here. Thus, any error in giving general instructions about the function of a Murphy conservatorship was harmless.
V. DISPOSITION
The order is affirmed.
/s/_________
SMITH, J. We concur: /s/_________
STREETER, Acting P. J. /s/_________
REARDON, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------