Opinion
C085840
08-30-2018
Conservatorship of the Person and Estate of ROBERT C. BUTTE COUNTY PUBLIC GUARDIAN, as Conservator, etc., Petitioner and Respondent, v. ROBERT C., Objector and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. PR-41723)
Objector Robert C. challenges the renewal of appointment of conservatorship under the Lanterman-Petris-Short Act (LPS Act) (Welf. & Inst. Code, §§ 5,000, 5350 et. seq.). He argues case-specific hearsay was improperly admitted in violation of his constitutional rights under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) and that his counsel was ineffective in not objecting to such evidence. He also complains the grave disability finding and special disabilities imposed were not supported by substantial evidence.
Undesignated statutory references are to the Welfare and Institutions Code.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Butte County Public Guardian (Public Guardian) filed the original petition for appointment of conservator of Robert C.'s person and estate on December 16, 2015. In June 2016, a jury found Robert C. was gravely disabled. Thereafter, the trial court placed him in a one-year conservatorship and imposed special disabilities, restricting him from having a driver's license, entering contracts, refusing treatment, and possessing firearms or other deadly weapons.
On April 27, 2017, the Public Guardian filed a petition to renew the conservatorship in its entirety. Robert C. waived his right to a jury trial, and a court trial was held on August 14, 2017.
The Public Guardian presented the testimony of an expert witness, as well as Robert C.'s deputy public guardian. Robert C. presented testimony from his mental health coordinator and also testified on his own behalf.
Carolyn Kimura, M.D., the medical director of Butte County Behavioral Health and a practicing psychiatrist, testified as an expert witness in the diagnosis and treatment of psychiatric disorders. Dr. Kimura had previous contact with Robert C. during his 39-day commitment to the psychiatric unit at Butte County Behavioral Health, occurring approximately 19 months before the trial. She also reviewed reports from his locked residential placement, spoke with Robert C.'s deputy public guardian and mental health coordinator, and conducted an approximately 20-minute interview of Robert C. on the day of the court trial.
Robert C. told Dr. Kimura on the day of the trial that he did not need his medication and does not have a mental illness. He also said his inattentiveness to soiled garments was not a "big deal" and "[e]veryone leaves their clothing on the floor."
Robert C.'s grandiose illusions about being off conservatorship, as well as his frequent laughing to himself while alone, are consistent with schizophrenia. Dr. Kimura was confident Robert C. was suffering from schizophrenia, for which he takes Thorazine and Haldol, both antipsychotics.
Dr. Kimura opined Robert C. was gravely disabled and was not capable of living independently. His present placement in a locked residential facility was the least restrictive environment suitable for him. Robert C.'s plan for food relied upon a person he called his wife, even though he was not married. His refusal to attend classes concerning financial responsibilities made it unlikely that he would be capable of managing his own funds. Further, she opined he was not capable of managing his own clothing, which becomes soiled due to incontinence, as shown by Robert C.'s refusal to care for those clothes at his present placement and his plan to have his mother wash his clothes.
As we will explain later, testimony from the deputy public guardian and Robert C. shows this person is actually a longtime girlfriend, who has not offered to help Robert C. and did not testify at the trial.
The record supports that Robert C.'s mother was not willing to perform this task.
Dr. Kimura opined Robert C. was not mentally competent to enter contracts or to possess a driver's license or firearms, but "could be allowed the right to vote." On cross- examination, Dr. Kimura explained it was her understanding that Robert C. had been previously living in a trailer provided by his mother.
Robert C.'s deputy public guardian testified to attending quarterly meetings, receiving reports from the care facility, and visiting Robert C. quarterly. Robert C.'s doctors reported he was still gravely disabled, requiring a continuation of the conservatorship. He was not willing to accept treatment voluntarily, although he takes his medication when prompted to do so. Robert C. forbade the deputy public guardian from speaking with Robert C.'s mother about his condition, and his mother had not offered to care for him. Robert C. previously lived on his mother's property, but his mother stated she is unable to care for him because of her age and his required level of care. No one, including Robert C.'s girlfriend, has ever offered to assist in his care. Robert C.'s "lack of insight to his mental illness and his refusal to participate in meaningful treatment of the mental illness" hampers his ability to be released from conservatorship. Robert C.'s participation in core and anchor groups (skill training and mental health) is minimal. He also refuses to attend outings.
Robert C.'s Butte County Behavioral Health Institute for Mental Disease coordinator testified on his behalf that he sees Robert C. every three months in person, in addition to quarterly multidisciplinary meetings concerning him, during which Robert C. is present, but passive. Robert C. prefers not to attend core programs. His coordinator has asked him to attend those kinds of trainings, but Robert C. does not feel those trainings apply to him. Robert C. also has no interest in attending outings and denies having a mental illness. His coordinator has personally observed Robert C. leaving clothing on the floor of his room that smells of urine and has counseled him about it, but Robert C. does not view this behavior as problematic. There is also an acute concern about skin breakdown arising from Robert C.'s failure to: acknowledge soiling of his diaper, change the diaper, and care for his skin without prompting. Robert C. has not been aggressive or assaultive in the past year.
Robert C. testified that where he lives there is nothing to do, so he lies in bed during the day, but he does go to the cafeteria to eat meals. There are no group training programs, and he has never been invited to leave the facility. He does attend daily meetings where a person reads the paper aloud. The only other activity is "coloring and stuff like that," which he does not attend. Robert C. does not notice when he urinates, nor smells anything when his diaper leaks. He denies anyone has discussed the smell or potential skin irritation problems arising from his being in urine. He claims to have no problems with his mental health, and while he takes his medication, it does not affect him. Nevertheless, he would continue to take his medicine. He does not know whether he takes medicine for his incontinence.
Robert C. has a house on his mother's property, and his mother (who is in her 80's) pays the taxes. If allowed to return home, he would pay utilities with his supplemental security income (SSI), but he does not recall how much it would cost. He would get food by calling his wife, which he later clarified to be a longtime girlfriend, to come over. He stated she might live with him at the house. However, she did not know about the trial that day, and it has been about two months since Robert C. spoke with her.
The trial court silently read a letter from Robert C., which was not included in the record. The court then heard the argument of counsel and found Robert C. had a mental disorder that caused him to have a grave disability, and that he was "either unwilling or unable to voluntarily accept meaningful treatment." Thereafter, the trial court issued an order reappointing the Public Guardian as conservator of Robert C.'s person and estate and imposing special disabilities prohibiting Robert C. from possessing a driver's license, entering contracts, refusing treatment related to his grave disability, and possessing firearms or other deadly weapons.
DISCUSSION
1.0 The Sanchez Challenge
Robert C. argues "reversal is required because the trial court relied on case-specific and testimonial hearsay improperly admitted through the testimony of the State's witnesses, in violation of [his] state and federal rights to confrontation, trial, and due process, and to cross-examine witnesses and exclude hearsay" under the Supreme Court's decision in Sanchez, supra, 63 Cal.4th 665. He alternatively argues his counsel was ineffective for not objecting to the admission of hearsay testimony concerning his records.
To the extent that Robert C. argues the confrontation clause was violated by the admission of hearsay, we note the confrontation clause is inapplicable to civil LPS Act proceedings. (Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1284, fn. 6 ["The constitutional rule announced in Sanchez does not extend to civil cases."].) Nonetheless, Sanchez recognized a change in the admissibility of hearsay, proclaiming that while an expert may rely on hearsay in forming an opinion, that expert cannot "relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Sanchez, supra, 63 Cal.4th at p. 686.) However, because Robert C.'s trial occurred in August 2017, over a year after the Sanchez decision, his counsel's failure to object to the admission of case-specific hearsay relayed by the testifying expert has forfeited the hearsay challenge. (See People v. Stevens (2015) 62 Cal.4th 325, 333 ["the failure to object to the admission of expert testimony or hearsay at trial forfeits an appellate claim that such evidence was improperly admitted"].) Therefore, what remains is whether Robert C.'s trial counsel was ineffective for not objecting to the admission of expert testimony relaying case-specific hearsay, allegedly prohibited by the Sanchez decision (see Sanchez, supra, at p. 686), as well as hearsay elicited from the deputy public guardian, who was a fact witness not covered by the Sanchez decision.
To prevail on a claim of ineffective assistance of counsel, Robert C. must show (1) trial counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced him. (Strickland v. Washington (1984) 466 U.S. 668, 688, 692 [80 L.Ed.2d 674, 693, 696].) "Deficient performance cannot be established on direct appeal unless '(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.' " (People v. Bona (2017) 15 Cal.App.5th 511, 521, quoting People v. Mai (2013) 57 Cal.4th 986, 1009.) "The decision whether to object to the admission of evidence is 'inherently tactical,' and a failure to object will rarely reflect deficient performance by counsel." (People v. Castaneda (2011) 51 Cal.4th 1292, 1335.)
We are unconvinced there was no rational tactical purpose for trial counsel's failure to object to the admission of the hearsay in this case. As Robert C. concedes, had such an objection been raised, the records at issue may have been subject to a hearsay exception. (See Sanchez, supra, 63 Cal.4th at p. 675 [medical records and patient's statements may qualify for hearsay exception].) We also acknowledge trial counsel may have had reasons for not wanting the records themselves admitted, such as the possibility that they contained other information trial counsel wished to keep out of the record. Trial counsel may have been concerned that had he raised a hearsay objection, the Public Guardian might have sought to admit the entire record as an exception to the hearsay rule. Further, trial counsel made a tactical decision to cross-examine both Dr. Kimura and the deputy public guardian about additional information from Robert C.'s records. Trial counsel further called Robert C.'s mental health coordinator, eliciting similar hearsay information from facility reports. We see nothing in the appellate record establishing trial counsel acted unreasonably in failing to object to the discussion of the reports so that he could elicit additional information from Robert C.'s records to undermine the Public Guardian's evidence that Robert C. was still gravely disabled.
Nor do we believe the record shows trial counsel abandoned his role as Robert C.'s advocate. On the contrary, trial counsel highlighted that Robert C.'s ability to use the toilet was not a condition of grave disability; he further argued for and received an order for a status conference in six months because many of Robert C.'s problems preventing him from making progress towards his release from conservatorship were related to his incontinence.
Moreover, and contrary to Robert C.'s argument, trial counsel presented evidence concerning third party assistance, asking about Robert C.'s mother's willingness to allow him to return to the property where he previously lived and eliciting that Robert C. planned to have his girlfriend help him with food. Further, the argument that trial counsel was ineffective for failing to present evidence about outpatient services or other third party assistance assumes Robert C. would have consented to such testimony, which is not self-evident in light of Robert C.'s refusal to allow the deputy public guardian to discuss his condition with his mother and his continued denial of his mental illness. Neither Robert C.'s mother nor his girlfriend testified at the trial, and Robert C. admitted in his testimony that his girlfriend did not know of that trial, and they had not spoken for two months. There is simply nothing in the record establishing Robert C.'s trial counsel provided ineffective assistance.
2.0 The Grave Disability Finding
We understand Robert C.'s argument to be that, even with the impermissible hearsay evidence, there was not substantial evidence that his mental illness caused him to be gravely disabled within the meaning of the LPS Act. He concedes the Public Guardian presented evidence he suffers from schizophrenia, but nonetheless argues there was no evidence that he would not be able to provide for his own food, clothing, and shelter through his SSI payments, returning to his home on his mother's property, and assistance from his longtime girlfriend and/or social services. Thus, he argues he is not gravely disabled because he can survive safely with the help of others.
We acknowledge that Robert C.'s reply brief argues that because of the erroneous admission of hearsay evidence, substantial evidence does not support the grave disability or special disabilities. However, we do not reach this argument because of our previous determination that the hearsay issue was not preserved for appeal.
The LPS Act is a civil commitment scheme that provides for short-term detention of mentally disordered individuals. (§ 5000 et seq.) An LPS Act conservatorship may be established for any person who is gravely disabled as a result of a mental disorder. (§ 5350.) " 'Gravely disabled' " is defined, in pertinent part, 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." (§ 5008, subd. (h)(1)(A).) "[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).) "Grave disability must be proven beyond a reasonable doubt to establish and to renew LPS conservatorships." (Conservatorship of Johnson (1991) 235 Cal.App.3d 693, 696 (Conservatorship of Johnson).)
On appeal, a grave disability finding is reviewed for substantial evidence. (Conservatorship of Carol K. (2010) 188 Cal.App.4th 123, 134.) Substantial evidence may consist of the testimony of a single witness, and includes "evidence that is reasonable, credible, and of solid value, [including] circumstantial evidence." (Ibid.) In conducting this review, "[w]e review the record as a whole in the light most favorable to the trial court judgment . . . ." (Ibid.)
We find substantial evidence supports the trial court's finding that Robert C. was gravely disabled within the meaning of the LPS Act. Inability to provide food, clothing or shelter would support this finding (see Conservatorship of Carol K., supra, 188 Cal.App.4th at p. 135 [grave disability test is disjunctive]), and we find evidence supporting that Robert C. was unable to provide for any of them.
Consistent with the opinions of Robert C.'s doctors, Dr. Kimura opined Robert C. was gravely disabled and that a conservatorship was necessary to ensure his needs for food, shelter, and clothing were met. Robert C. suffers from grandiose illusions and auditory hallucinations. He denies his mental illness and refuses to attend outings or accept treatment voluntarily, including skill training and mental health treatment. Robert C. does not notice when he urinates or smell anything when his adult diaper leaks. He fails to clean up his urine-soaked clothes at his current placement and denies that he should. There is acute concern of skin breakdown because of Robert C.'s repeated failures to: acknowledge soiling of his adult diaper, change those diapers, and care for his skin without prompting.
While we acknowledge Robert C.'s incontinence appears to be caused by an enlarged prostate and not his mental illness, it is how he reacts to that incontinence and the risks to his health and clothing arising therefrom that the trial court could reasonably infer were tied to his mental illness. --------
Robert C. stated his girlfriend would help him obtain and prepare food, but had not spoken with her for two months. She did not testify at trial, nor did she provide a written statement that she would help. Thus, under section 5350, subdivision (e)(2), she "shall not be considered willing or able to provide this help." (See Conservatorship of Johnson, supra, 235 Cal.App.3d at p. 699, fn. 5 [recognizing live testimony of third party willing to help may be considered despite the language of § 5350, subd. (e)(2)].)
Likewise, Robert C. expressed a desire to return to living in his previous home on his mother's property and indicated to Dr. Kimura that his mother would wash his clothing. However, Robert C.'s mother did not testify at trial, nor execute a written statement that she would help. Thus, we cannot consider Robert C.'s mother as willing or able to help him. (§ 5350, subd. (e)(2); Conservatorship of Johnson, supra, 235 Cal.App.3d at p. 699, fn. 5.) In fact, the record actually supports that Robert C.'s mother was unable and/or unwilling to help because of her advancing age and his required level of care.
Robert C.'s reliance on Conservatorship of Jesse G. (2016) 248 Cal.App.4th 453 and Conservatorship of Smith (1986) 187 Cal.App.3d 903 is misplaced, as those cases are factually distinguishable. Robert C. has presented no cognizable evidence of third parties willing to assist him, and his inability to provide for food, shelter, and clothing without that assistance is supported in the record. Therefore, substantial evidence supports the trial court's grave disability finding.
3.0 The Special Disabilities
In addition to reappointing the Public Guardian as conservator of Robert C.'s person and estate, the trial court imposed special disabilities pursuant to section 5357, denying him the right to possess a driver's license, enter contracts, refuse treatment related to his grave disability, and possess firearms or other deadly weapons. (§ 5357, subds. (a), (b), (d), & (f).) Robert C. argues the trial court erred in imposing these special disabilities because "there was no specific evidence supporting these restrictions." While conceding that Dr. Kimura testified Robert C. should not be allowed to enter into contracts, drive, have firearms or refuse medical treatment, he argues these conclusory statements were insufficient to support the special disabilities imposed.
" 'If a person is found gravely disabled and a conservatorship is established, the conservatee does not forfeit legal rights or suffer legal disabilities merely by virtue of the disability.' " (Conservatorship of George H. (2008) 169 Cal.App.4th 157, 165.) Rather, " '[t]he court must separately determine the . . . disabilities imposed on the conservatee . . . .' " (Ibid.) However, a specific, on-the-record statement of the reasons for each disability imposed is not required. (Ibid.) "Instead, we follow the usual rules on appeal [citation] and 'presume in favor of the judgment every finding of fact necessary to support it warranted by the evidence.' " (Ibid.) We will affirm the trial court's imposition of special disabilities so long as substantial evidence supports each disability. (Ibid.)
Here, we limit our review to Robert C.'s contract disability challenge because his failure to provide argument and authority for his challenge to the other disabilities imposed has forfeited those claims. (See Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1045, fn. 1.) We note that the firearm disability was supported by Robert C.'s previous section 5150 commitment pursuant to section 8103, subdivision (f), but that evidence was not before the trial court when it made its determination. Further, there appears little or no evidence of paranoid delusions or other information that could support a finding that Robert C. was a danger to himself or others.
Under Civil Code section 1556, persons of "unsound mind" are not capable of entering into contracts. There are essentially three classifications of incapacity based on an "unsound mind": (1) entirely without understanding (Civ. Code, § 38); (2) unsound but not entirely without understanding (Civ. Code, § 39, subd. (a)); and (3) susceptible to undue influence (Civ. Code, § 39, subd. (b)). (Smalley v. Baker (1968) 262 Cal.App.2d 824, 834-835, disapproved on another point in Weiner v. Fleischman (1991) 54 Cal.3d 476, 485-486.)
Here, not only did Dr. Kimura testify, without objection, that this special disability was required, the record also contains independent evidence supporting this conclusion. For example, the trial court may have reasonably concluded that Robert C. either had an unsound mind or was vulnerable to exploitation by others because of his refusal to attend financial training, grandiose illusions, auditory hallucinations, and continuing denial of his mental illness. This is substantial evidence supporting the trial court's restriction of Robert C.'s right to contract under section 5357, subdivision (b).
DISPOSITION
The judgment is affirmed.
BUTZ, J. We concur: RAYE, P. J. DUARTE, J.