Opinion
F073147
03-15-2017
Conservatorship of the Estate and Person of James V. SCOTT HOLWELL, as Conservator, etc. et al., Petitioners and Respondents, v. JAMES V., Objector and Appellant.
Julia Freis, under appointment by the Court of Appeal, for Objector and Appellant. Colleen Carlson, County Counsel, and Diane Walker Freeman, Deputy County Counsel, for Petitioners and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 02P0113)
OPINION
APPEAL from an order of the Superior Court of Kings County. Jennifer Giuliani, Judge. Julia Freis, under appointment by the Court of Appeal, for Objector and Appellant. Colleen Carlson, County Counsel, and Diane Walker Freeman, Deputy County Counsel, for Petitioners and Respondents.
-ooOoo-
Appellant, James V., challenges the order reappointing respondent, the Kings County Public Guardian (Public Guardian), as his conservator under the Lanterman- Petris-Short (LPS) Act. (Welf. & Inst. Code, § 5000 et seq.) Appellant contends the trial court erred in setting the matter for a court trial based on counsel's representation rather than obtaining an on-the-record personal waiver of the right to a jury trial from appellant or finding that appellant lacked the capacity to make a jury waiver. Appellant further argues he was prejudiced at trial by case-specific, and therefore inadmissible, hearsay statements made by the Public Guardian's expert witness.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated. --------
We conclude the trial court erred in not obtaining appellant's on-the-record personal waiver of a jury trial and that this error requires reversal. Accordingly, we will not address appellant's other contention.
BACKGROUND
In September 2002, the trial court found that appellant was "gravely disabled as a result of a mental disorder" and appointed the Public Guardian as appellant's conservator. The trial court terminated this conservatorship in May 2003 after finding appellant was no longer gravely disabled.
The trial court reappointed the Public Guardian as appellant's conservator in May 2006, January 2009, October 2013, and October 2014. At appellant's request, a jury heard the January 2009 proceeding.
The underlying case commenced in August 2015 when the Public Guardian filed a petition for reappointment as appellant's conservator. At the September 30, 2015 hearing on this petition, appellant's attorney requested a court trial and waived a jury trial on appellant's behalf. Appellant did not waive his right to a jury trial. The court set the trial for November 18, 2015. Appellant then asked the court to relieve his attorney and appoint new counsel. Accordingly, the court set a hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), in conjunction with the court trial, to consider appellant's request.
The trial court called the case on November 18, 2015. Appellant was personally present. The court announced that the matter was on calendar for a court trial and a Marsden hearing. Again, appellant did not waive his right to a jury trial. The court explained the purpose of a Marsden hearing to appellant and asked if he wanted to go forward. Appellant explained he believed his attorney could continue to represent him and withdrew his request.
The court accepted both attorneys' stipulation that David Rolfsema was qualified to testify as an expert witness on the issue of appellant's grave disability. Rolfsema testified that he had examined appellant at the facility where appellant was currently living and had reviewed the records from that facility. Rolfsema also examined appellant's records from Kings View Counseling Services (Kings View) and spoke to Kings View staff. Appellant had been receiving mental health services from Kings View for 25 years.
Based on his examination of appellant, his review of appellant's records and his conversations with staff, Rolfsema opined that appellant suffers from schizophrenia. Rolfsema determined that appellant had only a partial understanding of his condition. While appellant stated he was diagnosed with "manic depressive schizophrenia," appellant believed it was probably due to an imbalance because of past drug use or being hit in the head a couple years ago, which was inconsistent with his having received mental health services for 25 years. Rolfsema then explained the appropriate treatment for schizophrenia and listed the medication appellant was currently prescribed.
Rolfsema testified that appellant could not provide his own food, clothing and shelter, required supervision, could not give informed consent, was not capable of entering into a contract and would be a danger to himself or others if permitted to drive a motor vehicle or possess a firearm or other dangerous weapon. Throughout this testimony, Rolfsema gave examples of appellant's recent behavior to support his opinion.
Appellant then testified. He acknowledged he had a mental illness, described his symptoms and medications, and explained the incidents outlined by Rolfsema. Appellant stated that, if the conservatorship ended, he had a place to stay and could take care of himself. At the end of his testimony appellant noted, "I had asked for a jury trial, but I got a hearing here today to see if I can continue with my own self-sufficient living or at least steps towards that." The court responded that there was a waiver of a jury trial and request for a court trial on September 30, 2015.
The trial court found appellant remained gravely disabled as a result of a mental disorder and reappointed the Public Guardian as conservator.
DISCUSSION
The trial court appointed the Public Guardian conservator of appellant effective October 3, 2015 and terminating October 2, 2016. Because a conservatorship is brief in comparison with the appellate process, in most cases, including this one, the issues arising from the conservatorship proceeding become moot before the appeal is decided. Nevertheless, being as the issues are capable of recurring, yet evading review, appellate courts may exercise their inherent discretion to address the merits and decide the issues. (Conservatorship of Joseph W. (2011) 199 Cal.App.4th 953, 961.) Accordingly, we will address the merits of this appeal.
The procedures for establishing a conservatorship include a number of requirements regarding notice, hearing and trial rights. (Conservatorship of John L. (2010) 48 Cal.4th 131, 143 (John L).) As pertinent here, the proposed conservatee "shall have the right to demand a court or jury trial on the issue of whether he or she is gravely disabled." (§ 5350, subd. (d)(1).) Moreover, "[t]he due process clause of the California Constitution requires that proof beyond a reasonable doubt and a unanimous jury verdict be applied to conservatorship proceedings under the LPS Act." (Conservatorship of Roulet (1979) 23 Cal.3d 219, 235.) Despite being labeled a "civil" confinement, an LPS commitment is incarceration against one's will and thus is a deprivation of liberty. (Id. at pp. 224-225.)
Respondent correctly points out that there is a long line of cases recognizing that a conservatee's counsel may waive a conservatee's right to a jury trial in LPS proceedings. For example, in Conservatorship of Maldonado (1985) 173 Cal.App.3d 144, the court held that counsel could waive a jury trial in open court without a personal waiver from the conservatee. (Id. at p. 148.)
Similarly, in Conservatorship of Mary K. (1991) 234 Cal.App.3d 265 (Mary K.), this court held that, because there is no constitutional right to a jury trial in LPS proceedings, counsel may validly waive the conservatee's right to a jury trial. "[A]n on-the-record personal waiver of a jury trial is not required from the proposed conservatee." (Id. at p. 271.) Further, the waiver is valid even in the absence of evidence that counsel discussed the waiver with the proposed conservatee. The court must assume counsel is competent and that he or she fully communicated with the proposed conservatee about the entire proceeding. (Id. at p. 272.)
Respondent further relies on John L., supra. John L. concerned the right of the proposed conservatee to be present at the hearing. (§ 5350; Prob. Code, § 1825.) The John L. court reiterated that a conservatee's rights in LPS proceedings, although substantial, may be waived by an attorney with the client's express consent. (John L., supra, 48 Cal.4th at p. 156.) Specifically, the court held that if a client tells his or her appointed attorney he is unwilling to attend the hearing and does not wish to contest a proposed LPS conservatorship, the client may reasonably expect the attorney to report such information to the court, with binding effect. (Id. at p. 147.)
However, in 2015, the California Supreme Court directly confronted the issue of whether a personal waiver of the right to a jury trial is required in commitment proceedings. In People v. Blackburn (2015) 61 Cal.4th 1113 (Blackburn), the court considered a proceeding under the Mentally Disordered Offender (MDO) Act. The court noted that it was a civil commitment proceeding, even though it was collateral to a criminal trial. (Blackburn, supra, 61 Cal.4th at p. 1119.)
The MDO Act requires the court to "'advise the person of his or her right to be represented by an attorney and of the right to a jury trial'" and provides "'[t]he trial shall be by jury unless waived by both the person and the district attorney.'" (Blackburn, supra, 61 Cal.4th at p. 1122.) The court held "the decision to waive a jury trial belongs to the defendant in the first instance, and the trial court must elicit the waiver decision from the defendant on the record in a court proceeding." (Id. at p. 1130.) However, "if the trial court finds substantial evidence that the defendant lacks the capacity to make a knowing and voluntary waiver, then control of the waiver decision belongs to counsel, and the defendant may not override counsel's decision." (Ibid.) Further, the court cannot imply a knowing and voluntary waiver on the ground that the defendant has been through the process before. (Ibid.) Finally, this error requires automatic reversal. (Id. at p. 1133.)
In the companion case of People v. Tran (2015) 61 Cal.4th 1160 (Tran), the court applied the same reasoning to the not guilty by reason of insanity (NGI) statute. Thus, for extension of hospital commitments for defendants who plead not guilty by reason of insanity, "the decision to waive a jury trial belongs to the NGI defendant in the first instance, and the trial court must elicit the waiver decision from the defendant on the record in a court proceeding." (Tran, supra, 61 Cal.4th at p. 1167.)
In Conservatorship of Kevin A. (2015) 240 Cal.App.4th 1241 (Kevin A.), this court addressed the issue of a jury trial waiver in the context of the LPS Act. In Kevin A., the trial court accepted the jury trial waiver proffered by Kevin A.'s attorney over Kevin A.'s express wishes. (Kevin A., supra, 240 Cal.App.4th at p. 1251.) We acknowledged that the LPS statutory language differs somewhat from the language at issue in Blackburn and Tran. Nevertheless, we held that the California Supreme Court's holdings in Blackburn and Tran applied and determined the outcome of Kevin A. (Kevin A., supra, at p. 1248.) Accordingly, we concluded the trial court erred in accepting counsel's jury trial waiver and reversed the order granting the petition. We distinguished our earlier case of Mary K. where we upheld the jury waiver made by counsel on the ground that there, the conservatee herself wanted a court trial rather than a jury trial. (Kevin A., supra, at pp. 1251-1252.)
In Conservatorship of Heather W. (2016) 245 Cal.App.4th 378 (Heather W.), the Second Appellate District, Division Six, took our holding in Kevin A. a step further. The court first noted that in Conservatorship of Roulet, supra, the California Supreme Court held that the California Constitution's due process clause requires that proof beyond a reasonable doubt and a unanimous jury verdict be applied to LPS Act conservatorship proceedings. (Heather W., supra, 245 Cal.App.4th at pp. 382-383.) The court then applied Blackburn and Tran and concluded that the trial court is required to obtain an on-the-record personal waiver of the right to a jury trial from the proposed conservatee, even where the conservatee expresses no preference for a jury trial, unless the trial court finds the conservatee lacks the capacity to make such a decision. (Heather W., supra, at pp. 381, 383.) The court further held that this error required automatic reversal. (Id. at p. 385.)
In light of Blackburn and Tran, the Heather W. court's reasoning is sound and should be applied here. As noted by both Kevin A. and Heather W., the MDO, NGI, and LPS Acts contain very similar statutory language and have the same underlying goals, i.e., protecting the public and treating severely mentally ill persons. (Kevin A., supra, 240 Cal.App.4th at pp. 1248, 1250; Heather W., supra, 245 Cal.App.4th at p. 383.) Accordingly, the trial court erred in not obtaining appellant's on-the-record personal waiver of a jury trial. Although appellant did not appear to express a preference at the beginning of the trial, he made it clear later on that he believed he had asked for a jury trial. Therefore, the order must be reversed.
DISPOSITION
The order granting the petition for conservatorship is reversed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
GOMES, J. /s/_________
KANE, J.