Opinion
A163304
10-31-2022
Conservatorship of the Person of D.T. v. D.T., Objector and Appellant. PUBLIC GUARDIAN FOR THE COUNTY OF SANTA CLARA, as Conservator, etc., Petitioner and Respondent,
NOT TO BE PUBLISHED
Napa County Super. Ct. No. 2664974
BROWN, J.
Following a trial at which he did not appear, a jury found D.T. to be gravely disabled due to a mental disorder within the meaning of the Lanterman-Petris-Short Act (Welf. &Inst. Code, §§ 5000 et seq. (LPS Act)). The trial court reappointed the Santa Clara County Public Guardian (Guardian) as the conservator of his person. D.T. appeals, arguing (1) substantial evidence does not support the jury's verdict; (2) the trial court erred by admitting certain evidence and his trial counsel's failure to object to the evidence constituted ineffective assistance of counsel; (3) the trial court failed to obtain a valid waiver of his right to be present at the trial; and (4) there was insufficient evidence to justify the trial court's order depriving him of the right to refuse or consent to treatment for his mental disorder. As none of D.T.'s arguments justifies reversal or modification of the judgment, we will affirm.
BACKGROUND
The Guardian filed a petition seeking reappointment as D.T.'s LPS Act conservator. D.T., through his counsel, requested a jury trial. On the first day of trial, D.T.'s counsel said, "I'm waiving [D.T.]'s appearance this morning. We're working on seeing if he'll be able to make it this afternoon." The Guardian's counsel told the court that D.T. had been provided with transportation to court that morning but had declined to be transported.
D.T. had filed several motions in limine, including one based on People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) seeking to exclude the contents of medical and psychological records and reports from non-testifying doctors. The trial court deferred ruling on the motion.
At the beginning of jury selection, the trial court explained to the jury pool that the case was being tried in Napa County even though the petitioner was the public guardian for Santa Clara County because D.T. was in Napa State Hospital. The trial court also told the jury, "[D.T.]'s been excused from appearing this morning. We don't know if he will be appearing later. Depending on, I guess, various factors."
Before the jury arrived the following day, which was the first day of witness testimony, the court asked D.T.'s counsel, "Do you know now that he's not coming?" Counsel responded, "He is not coming this morning." The court then discussed the parties' joint proposed special jury instructions regarding D.T.'s presence and testimony at trial or lack thereof.
The sole witness to testify at trial was D.T.'s treating psychiatrist at Napa State Hospital, Dr. Krawczyk. D.T. had been a patient at the hospital since 2005, but Dr. Krawczyk had only begun treating him four months before trial. Based on her personal evaluations of D.T. and information from his medical records that she had reviewed, Dr. Krawczyk diagnosed D.T. as suffering from schizophrenia. She found he met the diagnostic criteria for schizophrenia because he exhibited delusions, hallucinations, and, to a lesser extent, disorganized thinking. D.T.'s delusions consisted of thinking that he communicated telepathically with a non-existent Dr. Cohen, whom D.T. believed he was training to kill all the people in California. D.T. sometimes believed that he was Hitler or Hitler's child, that he had previously lived with Hitler in Japan, that his mother married Hitler, and that he was God or Dr. Cohen was God. D.T. also said he wanted to kill everyone in California with his hands and that Dr. Cohen would do it for him. D.T. believed that he could kill everyone because he was God.
Dr. Cohen recently commanded D.T. to take a shower and D.T. obeyed. Dr. Krawczyk explained that command auditory hallucinations like this could be dangerous if Dr. Cohen commanded D.T. to hurt someone or himself, though that had not happened.
D.T. also had delusions that he could read minds, that Dr. Krawczyk was a cannibal, and that all people in his hospital and in California were robots. D.T. told Dr. Krawczyk he was scared of her because she could hear him, and he calmly threatened to kill her.
D.T. admitted that he has paranoid schizophrenia, but he did not have insight into his symptoms. The only symptom he admitted to having was paranoia, and he did not believe that talking to Dr. Cohen or believing in telepathy and mindreading were some of the symptoms of his illness. D.T. did not understand that he needed treatment for his illness.
D.T.'s preoccupation with Dr. Cohen made him unable to focus on anything else, to the point that he only participated in half of the required social and therapeutic group services at the hospital. Dr. Krawczyk said that she believed D.T. was not in court because of his paranoia. She believed D.T. was afraid of other people like he was afraid of her, and that his fear for his life had led him to assault people in the past.
Dr. Krawczyk admitted that D.T. could walk unassisted and feed, bathe, and dress himself. But she opined that he was still gravely disabled because he said that if he left the hospital, he would not take his medications (one of which was an injection that had to be administered at a clinic) or see a psychiatrist, which would cause his delusions and hallucinations to become more severe. D.T. did not know the names of his medications. The hospital provided D.T. with all of his food, clothing, and shelter, and Dr. Krawczyk believed D.T.'s preoccupations would prevent him from finding those things for himself if he were released. D.T. has a brother in South Carolina with whom he spoke regularly, but D.T. reported that he could not live with his brother because he was too old.
D.T.'s plan for taking care of himself if he were released from the hospital was to move to North Carolina to forget about Dr. Cohen, although Dr. Krawczyk believed he would not. D.T. planned on either going to the cafeteria at the University of North Carolina to get free food, or going to a truck stop to ask the truck drivers to give him food. D.T. had no plans for shelter. Dr. Krawczyk believed that D.T.'s illness would prevent him from executing any of these plans anyway, because his thoughts were too disorganized and he was too preoccupied with his delusions.
Dr. Krawczyk described D.T.'s medications, one of which had improved his symptoms so that he was no longer assaultive or suicidal like he used to be. She said that D.T. had asked to be put in a five-point restraint because he was hearing voices telling him to hurt other people, but since he had been on her unit, he had not been physically aggressive. However, while the medications caused his symptoms to be less severe, they did not eliminate them.
Dr. Krawczyk had concerns for the safety of D.T. and other people if he were released into the community, because he would become more paranoid and assault people. She believed that he would be violent if he did not take his medications.
On cross-examination, in response to a question from D.T.'s counsel about D.T.'s request to be put in a five-point harness, Dr. Krawczyk said she only knew of that from D.T.'s records, because he had made that request in the past. She agreed that D.T.'s voluntary request demonstrated that he had independently sought out safety measures and that he had insight into the need to protect himself and others. D.T. willingly took his psychiatric medications.
Outside the presence of the jury, Dr. Krawczyk opined that she did not think D.T. should have the right to refuse psychiatric medication. She believed his psychosis and disorganized thinking prevented him from recognizing that his medications helped him or weighing the risks and benefits of his medication.
The jury found that D.T. was gravely disabled. The trial court's subsequent judgment appointing the Guardian as D.T.'s conservator also ordered that D.T. should not have the right to refuse or consent to treatment related specifically to his grave disability. D.T. now appeals.
By law, D.T.'s conservatorship expired one year after the trial court appointed the Guardian as his conservator in August 2020. (Welf. & Inst. Code, § 5361.) We nonetheless" 'exercise our discretion to decide this otherwise moot case because it raises important issues that are capable of repetition but likely to evade review.'" (Conservatorship of John L. (2010) 48 Cal.4th 131, 142, fn. 2 (John L.).)
DISCUSSION
I. Substantial evidence of grave disability
"Under the LPS Act, a conservator may be appointed 'for a person who is gravely disabled as a result of a mental health disorder ....' ([Welf. &Inst. Code,] § 5350.)' "[G]ravely disabled"' is defined as, inter alia, '[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.' ([Welf. &Inst. Code,] § 5008, subd. (h)(1)(A).) . . . 'The clear import of the LPS Act is to use the involuntary commitment power of the state sparingly and only for those truly necessary cases where a "gravely disabled" person is incapable of providing for his basic needs either alone or with help from others.' [Citation.]
"' "[T]o establish that a person is gravely disabled, the evidence must support an objective finding that the person, due to mental disorder, is incapacitated or rendered unable to carry out the transactions necessary for survival or otherwise provide for his or her basic needs of food, clothing, or shelter," and the public guardian must prove beyond a reasonable doubt that the proposed conservatee is gravely disabled. [Citation.] On appeal, we apply the substantial evidence test to determine whether the record supports the court's finding of grave disability. The testimony of one witness may be sufficient to support such a finding. '" (Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1280.)
The evidence supporting the jury's verdict that D.T. was gravely disabled is strong. Dr. Krawczyk testified that D.T. suffers from schizophrenia in the form of hallucinations and delusions. His hallucinations and delusions take various forms, but include speaking to the imaginary Dr. Cohen and believing everyone in California is a robot. When asked what his plan would be for caring for himself outside of the hospital where he currently resides, D.T. offered only that he could get free food from a university in North Carolina or ask truck drivers at a truck stop to give him food. He offered no plan for obtaining his own shelter. These unrealistic plans, combined with Dr. Krawczyk's observations about the extent of D.T.'s delusions and preoccupations, support her conclusion that D.T. could not execute on any plans for self-care, realistic or not. And Dr. Krawczyk's testimony in turn amply supports the jury's conclusion beyond a reasonable doubt that D.T. is gravely disabled.
D.T. argues this evidence is not substantial because Dr. Krawczyk did not provide any examples of D.T.'s delusional preoccupations interfering with his daily life except for his failure to attend his group sessions. He argues his preference to isolate himself does not constitute a grave disability. D.T. further argues Dr. Krawczyk's opinions were speculative, such as her opinion that if released, he would become preoccupied by his delusions and live in his own psychotic worlds. D.T. admits that his plans to secure housing in North Carolina were not realistic but dismisses the significance of this because there was no evidence that he suffered from malnutrition or neglect when he was first conserved, and he emphasizes her testimony that he could bathe, dress, and feed himself. D.T. also argues that Dr. Krawczyk's discussion of the likelihood that D.T. might become aggressive or violent if released from the hospital was speculative.
These arguments are not persuasive. Assuming for the sake of argument that it was necessary for Dr. Krawczyk to provide specific examples of D.T.'s preoccupations interfering with his daily activities to support her expert assessment that his preoccupations would have that effect, she did so. While isolating oneself may not be a grave disability, self-isolation that interferes with daily functions can support a finding of grave disability. It is therefore significant that D.T. attended only half of his required group sessions in the hospital. D.T.'s inability to handle attending required therapeutic and social events in the hospital, where staff made arrangements for all of his daily needs, indicates that he could not handle his daily needs themselves outside of the hospital. Additionally, D.T. said he wanted to move to North Carolina to forget about Dr. Cohen, which demonstrates how his preoccupations drove his decisions about how to care for himself. The unrealistic nature of D.T.'s plans for obtaining food in North Carolina and lack of a plan for shelter further support Dr. Krawczyk's conclusion about his ability to care for himself. Even if Dr. Krawczyk's opinions about the likelihood that D.T. would assault someone if released from the hospital or live in his own psychotic world were speculative, as D.T. argues, the rest of her testimony was solid and sufficiently concrete to support the jury's verdict.
D.T. cites Conservatorship of Smith (1986) 187 Cal.App.3d 903, 910, which found that a proposed conservatee's failure to seek shelter did not demonstrate a grave disability, in the absence of evidence of "malnutrition, overexposure, or any other sign of poor health or neglect." But in that case, a psychiatrist opined that the proposed conservatee could obtain food, clothing, and shelter and that she accepted offers of help. (Ibid.) Here, Dr. Krawczyk testified that D.T. could not obtain those resources because of his schizophrenia, which satisfies the statutory definition of a grave disability. (Welf. &Inst. Code, § 5008, subd. (h)(1)(A).)
II. Admission of evidence
D.T. contends that the trial court improperly admitted testimony about his prior assaultive behavior and Dr. Krawczyk's concerns that he would be dangerous if released from Napa State Hospital because this evidence was unduly prejudicial, violative of Sanchez, and invited the jury to consider the consequences of its verdict by emphasizing that he was already in Napa State Hospital. He admits that his counsel failed to object in the trial court to any of this evidence but urges us to consider the merits of his arguments because his counsel's failure to object constituted ineffective assistance of counsel.
D.T. raised a Sanchez argument in a motion in limine, but he does not argue that this preserved the issue. D.T. perhaps recognizes that the motion in limine did not preserve the objection because the trial court declined to rule on it and the motion did not identify specific testimony he sought to exclude. (See People v. Morris (1991) 53 Cal.3d 152, 188-190, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
There are several problems with these evidentiary arguments, but we need not examine them in detail because D.T. forfeited them by failing to raise them in the trial court. (Evid. Code, § 353; People v. Burroughs (2016) 6 Cal.App.5th 378, 408 [Sanchez arguments forfeited by failure to object].) "The forfeiture rule generally applies in all civil and criminal proceedings. [Citations.] The rule is designed to advance efficiency and deter gamesmanship." (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264.) It encourages parties to raise errors in the trial court so that the trial court may correct or avoid them. (Ibid.) As the California Supreme Court has explained several times," '" '" 'If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.'" '" '" (Id. at p. 265.)
D.T.'s attempt to avoid the forfeiture rule by arguing in this appeal that his counsel was ineffective is unavailing. "To demonstrate ineffective assistance of counsel, [D.T.] 'must show that counsel's performance was deficient, and that the deficiency prejudiced the defense.' [Citation.] On direct appeal, a finding of deficient performance is warranted where '(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.' [Citation.] '[W]here counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions.'" (People v. Johnsen (2021) 10 Cal.5th 1116, 1165.) This rule is particularly apt here because D.T.'s ineffective assistance arguments rest on his counsel's failure to object. (People v. Arredondo (2019) 8 Cal.5th 694, 711.)"' "[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance." '" (Ibid.)
D.T. relies solely on the third method of proving ineffective assistance of counsel, arguing that there is no satisfactory reason why his counsel chose not to object to the evidence of which he now complains. We disagree.
D.T.'s counsel could have rationally decided not to object on Sanchez or other grounds to testimony about D.T.'s past assaultive behavior and Dr. Krawczyk's belief that he would stop taking his medication and might assault others if he were released from Napa State Hospital because he intended to rely on those areas of evidence for D.T.'s defense. One of the primary avenues D.T.'s counsel pursued in his cross-examination of Dr. Krawczyk and closing argument was that D.T.'s medications in the hospital had improved his symptoms to the point that he could now function on his own. As evidence of this improvement, his counsel emphasized that D.T. had been taking his prescribed medications, and although he had previously been assaultive, D.T. no longer exhibited that behavior. In fact, one of the strongest pieces of evidence of D.T.'s insight into his mental illness and ability to manage it, which his counsel highlighted in his closing argument, was his request to be placed in a five-point restraint when he felt he could not control his aggressive impulses.
It is true that counsel's approach necessarily entailed drawing the jury's attention to the fact that D.T. resided at the Napa State Hospital, but that fact was already before the jury given the court's explanation as to the venue and Dr. Krawczyk's role and observations of D.T.'s behavior. This approach also naturally raised the questions of whether D.T. was only able to provide for his needs in the hospital environment and whether he could sustain the behavior without the support and structure that the hospital provided. However, because D.T.'s counsel relied on D.T.'s progress in the hospital and cessation of aggressive behavior as evidence of D.T.'s ability to care for himself, his counsel could not reasonably object to the Guardian's evidence and argument to the contrary. Counsel could have rationally assessed that the benefits of highlighting the evidence he did outweighed the downsides of Dr. Krawczyk putting that same evidence before the jury. That the jury ultimately favored the Guardian's view of the evidence over D.T.'s counsel's counterargument does not mean it was irrational for D.T.'s counsel to pursue the theory in the first place or fail to object to evidence relating to it.
III. Waiver of personal attendance at trial
Welfare and Institutions Code section 5350, which is part of the LPS Act, makes Probate Code section 1825 applicable to LPS Act conservatorship proceedings. (John L., supra, 48 Cal.4th at p. 145.) Probate Code section 1825, subdivision (a) (§ 1825(a)) states in pertinent part, "The proposed conservatee shall be produced at the hearing except in the following cases: [¶] . . . [¶] (3) Where the court investigator has reported to the court that the proposed conservatee has expressly communicated that the proposed conservatee (i) is not willing to attend the hearing, (ii) does not wish to contest the establishment of the conservatorship, and (iii) does not object to the proposed conservator or prefer that another person act as conservator, and the court makes an order that the proposed conservatee need not attend the hearing."
Undesignated statutory references are to the Probate Code.
Meanwhile, Welfare and Institutions Code section 5350, subdivision (f) establishes that LPS Act conservatorship proceedings are not subject to section 1826, which details the duties of the court investigator referenced in section 1825. (John L., 48 Cal.4th at pp. 145-146.) John L. reconciled these statutory directives by holding "that Probate Code section 1825(a)(3)'s procedure pertaining to a proposed conservatee's production and attendance at the hearing must be followed in LPS Act cases, with one exception. That exception, rooted in [Welfare and Institutions Code] section 5350, subdivision (f), effectively bars the authorization and use of a court-appointed investigator to convey the desire of a proposed conservatee not to appear at a hearing." (Id. at p. 146.) However, John L. further held that Welfare and Institutions Code section 5350, subdivision (f) did not prohibit the use of other procedures in civil cases such as Code of Civil Procedure section 283, subdivision 1, which allows attorneys to make binding representations for their clients. (Id. at pp. 146-147.) John L. therefore concluded that "a client who tells his appointed attorney he is unwilling to attend the hearing and does not wish to contest a proposed LPS conservatorship may reasonably expect his attorney to report such information to the court, with binding effect." (Id. at p. 147.) John L. held that even assuming that section 1825(a) created a right for a proposed conservatee to attend trial personally, as the conservatee in that case contended, such a right was merely statutory and could still be waived through counsel as permitted by the statute. (Id. at pp. 147-148.)
D.T. contends that the LPS Act and section 1825, as construed in John L., together mean that the court could not impose a conservatorship on him unless he personally attended the trial or waived his personal attendance by expressly communicating that he was not willing to attend the hearing, did not wish to contest the establishment of the conservatorship, and did not object to the proposed conservator. Like the conservatee in John L., D.T. characterizes this as meaning he had a right to personally attend his conservatorship trial. He further contends that he did not waive his personal attendance in the manner required by section 1825 because neither he nor his counsel ever said that he did not want to contest the conservatorship. The Guardian, meanwhile, argues that since John L. held that a proposed conservatee's counsel can satisfy section 1825(a)(3) and waive both a proposed conservatee's presence at trial and the right to contest the conservatorship at all, then logically counsel can also waive just the proposed conservatee's personal attendance.
It is undisputed that D.T. never consented to the imposition of the conservatorship, either in person or through counsel. Thus, the statements by D.T.'s counsel did not satisfy section 1825(a)(3). And we disagree with the Guardian that John L. permitted D.T. to waive his attendance without meeting the statutory requirements. The Supreme Court did not hold that counsel for a proposed conservatee could waive the proposed conservatee's personal attendance under section 1825(a)(3) separate from the waiver of the right to contest the conservatorship as a whole. To the contrary, John L., supra, 48 Cal.4th at page 146 said that section 1825(a)(3) "must be followed" with the "one exception" that the proposed conservatee's waiver statements may come from conservatee's counsel rather than a court-appointed investigator or the conservatee himself or herself. John L. therefore does not permit D.T.'s counsel to waive D.T.'s attendance at the trial but continue to contest the conservatorship on the merits on his behalf. Were the rule as the Guardian contends, Probate Code section 1825 would become essentially meaningless in LPS Act conservatorships, contrary to the Legislature's intent as discussed in John L.
We therefore disagree with the statement in a leading treatise that section 1825(a) is not applicable to LPS Act conservatorships. (Cont. Ed. Bar, Cal. Conservatorship Practice, § 23.79A.)
Nonetheless, John L. is factually similar to this case in that neither in the trial court nor here in this appeal has D.T. ever contended that he wished to attend trial but was prevented from doing so. D.T. contends that the record is silent as to his wishes, but this is inaccurate. His counsel told the court on the first day of trial that he was waiving D.T.'s presence, and D.T. has not argued that this was unauthorized. Counsel for the Guardian also represented in the trial court that D.T. was offered transportation to court but declined. Although D.T. observes that the Guardian's counsel did not provide the basis for this representation, D.T. does not argue that it was inaccurate. On the second day of trial, his counsel said only that D.T. was "not coming," which D.T. contends was not a waiver at all. But under the circumstances, given D.T.'s refusal to attend the first day of trial and his counsel's waiver, his counsel's comments on the second day could reasonably be interpreted as another waiver. D.T. notes that the attorney in John L. stated that he had spoken to the conservatee, which he contrasts with his trial counsel, who made no such representation. But John L. instructs that "in the absence of any contrary indication, the superior court may assume that an attorney is competent and fully communicates with the proposed conservatee about the entire proceeding." (John L., supra, 48 Cal.4th at p. 156, italics added.) We may therefore presume that D.T.'s counsel spoke to D.T. before waiving his physical presence on both days of trial.
In sum, as far as the record here reveals, D.T. wanted his counsel to contest the conservatorship but did not want to attend the trial, contrary to the dictates of section 1825(a)(3). Shorn of its legal trappings, D.T.'s argument therefore boils down to a contention that the trial result should be invalidated because the court failed to force him to attend the trial, despite his choice not to attend and what we may presume was his instruction to his counsel to waive his appearance. But a litigant cannot obtain a reversal based on an error that he or she created. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403 ["The 'doctrine of invited error' is an 'application of the estoppel principle': 'Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal' on appeal"].) It is improper for D.T. to seek to reverse the conservatorship judgment based on an error that, as far as we can tell on this record, was of his own making. Besides rewarding D.T. for his own refusal to attend his conservatorship trial, vacating the judgment on this basis would also encourage proposed conservatees in other cases to avoid attending their trials, in the hope of having the resulting judgments reversed. This we will not do.
The jury found D.T. to suffer from a grave disability, based on testimony that he suffers from schizophrenia in the form of delusions and hallucinations. However, we may not presume that D.T. is incompetent merely because of his grave disability. (John L., supra, 48 Cal.4th at p. 154.)
Additionally, we note that counsel and the court took steps to protect D.T. against any adverse inferences the jury might otherwise have drawn from his choice not to attend his conservatorship trial. D.T.'s counsel worked with the Guardian to craft a special jury instruction and the court instructed the jury that D.T.'s appearance or non-appearance must not be a factor in the deliberations, and that they were not to consider whether D.T. was present or the reasons for his presence or non-presence. In light of this instruction, there was little risk that the jury relied on D.T.'s lack of attendance at trial when reaching its verdict.
Dr. Krawczyk testified that she believed D.T. did not want to come to court because of his paranoia. There was no objection to this testimony, and the special instruction the parties prepared and the court delivered mitigated any negative impact this testimony might have had.
Our application of the invited error doctrine does not make section 1825(a)'s personal attendance provision de facto waivable, nor does it render it a dead letter in LPS Act conservatorship proceedings. As John L. established, section 1825(a) establishes a mandatory requirement for LPS Act proceedings that trial courts and public officials like the Guardian are obligated to follow. A trial court "is precluded from ruling on the merits of a petition to appoint a conservator until it complies with section 1825." (Conservatorship of A.E. (2020) 45 Cal.App.5th 277, 284.) Imposing a LPS Act conservatorship after a trial in the absence of the proposed conservatee and without satisfying the criteria in section 1825(a) could well lead to a reversal of the judgment in other circumstances. For example, if the record contained evidence suggesting that D.T.'s absence from trial was anything but voluntary, or if D.T. had raised any such suggestion in the trial court or even on appeal, it would likely lead to a quite different outcome.
The absence of a proposed conservatee from trial could lead to reversal in other situations as well. In Conservatorship of A.E., supra, 45 Cal.App.5th at pages 280, 282-284, during a hearing at which the proposed conservatee was not present, the trial court issued an order denying a mother's petition to be appointed as the conservator for her adult child and instead sua sponte appointed the public guardian as the conservator. The Court of Appeal reversed based on the trial court's failure to satisfy the exceptions in section 1825(a), as there was no showing the proposed conservatee "consented to the appointment of the proposed conservator or . . . that [she] was unable or unwilling to attend the hearing." (Id. at pp. 283-284.) Conservatorship of A.E. is distinguishable from this case because there was no indication there that the conservatee's counsel waived the conservatee's presence, and it was the conservatee's mother, not the conservatee, who argued for reversal because of the conservatee's absence. (Id. at pp. 281-283.) But that case nonetheless demonstrates that public guardians and trial courts proceed at risk of reversal if they do not adhere to the requirements in section 1825(a).
Our conclusion here is also not inconsistent with John L., since the Supreme Court there declined to decide whether section 1825(a) creates a right of personal attendance, much less one that could be forfeited by inviting the trial court to proceed in a proposed conservatee's absence. (John L., supra, 48 Cal.4th at pp. 147-148.) D.T. emphasizes John L.'s statement that section 1825(a)(3)'s "procedure pertaining to a proposed conservatee's production and attendance at the hearing must be followed in LPS cases," with the exception that a conservatee's counsel can report to the court the conservatee's express communication of the three listed points. (Id. at p. 146.) As discussed above, we agree that the statute's requirements must be followed. We merely follow established principles of appellate procedure and hold that a conservatee cannot encourage a trial court not to follow the statute and then obtain a reversal of a conservatorship judgment on that basis.
We also conclude that the violation of section 1825(a) was harmless. We apply the state law standard of prejudice in People v. Watson (1956) 46 Cal.2d 818, 836 because, as we discuss post, the violation here was merely statutory, not constitutional. (Conservatorship of C.O. (2021) 71 Cal.App.5th 894, 917-919 [violation of statute requiring personal advisement of right to jury trial was subject to Watson].) As discussed, ante, the evidence of D.T.'s grave disability was strong. We reject D.T.'s argument that the error was structural because he was prevented from assisting his counsel and deciding whether to testify in his own defense; by voluntarily absenting himself from the trial, as the record here indicates, D.T. necessarily also chose not to assist his counsel or testify on his own behalf.
B. Due Process
In a backup argument, D.T. contends that holding the conservatorship trial in his absence violated his rights to due process under the state and federal constitutions. He bases his position primarily on two California Supreme Court decisions holding that trial courts in civil commitment proceedings for mentally disordered offenders and defendants found not guilty by reason of insanity must personally advise defendants of their right to a jury trial and obtain a personal waiver of that right. (People v. Tran (2015) 61 Cal.4th 1160, 1162-1163; People v. Blackburn (2015) 61 Cal.4th 1113, 1116.)
The difficulty with this argument, as the Guardian points out, is that it is contrary to John L. Besides considering the application of section 1825, John L. held that due process did not prevent counsel for a proposed conservatee from waiving the proposed conservatee's constitutional rights to be present and oppose the conservatorship. (John L., supra, 48 Cal.4th at pp. 149, 156.) Without repeating the court's extensive reasoning, it suffices here to note that John L. relied in part on the facts that (1) the LPS Act already provides numerous procedural protections, including post-trial procedures such as petitions for rehearing and habeas corpus petitions, and (2) attorneys are answerable under the Business and Professions Code and the State Bar Rules of Professional Conduct if they misrepresent to a court that a client wishes to waive his or her rights. (Id. at pp. 152-153, 155.)
People v. Tran and People v. Blackburn concern different statutory regimes and constitutional rights. John L. speaks directly to the issue D.T. raises here about due process limitations on counsel's ability to waive a proposed conservatee's constitutional right to attend a LPS Act trial. Accordingly, we cannot ignore John L. in favor of People v. Tran and People v. Blackburn, even if we wanted to. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.)
C. Other remedies
We emphasize again that the record in this case and the arguments that D.T. raises dictate the outcome here. Nowhere has D.T. ever suggested that his counsel did not speak to him before waiving his rights, that his counsel lacked authority to do so, or that his absence was in any way involuntary. For example, D.T. does not offer any reason to think his counsel waived his right to be present at trial based solely on the fact that he did not appear; in such circumstances, competent counsel would have investigated the reason for the client's non-appearance rather than cavalierly waive his right to attend trial. (See John L., supra, 48 Cal.4th at p. 156 [court may assume counsel is competent and communicates with proposed conservatee].)
It is certainly possible that D.T. may have other evidence relevant to the question of whether his counsel properly waived his rights. But if this is the case, the proper avenue for raising such a challenge to the conservatorship judgment is not this appeal, but one of the other procedures John L. discussed and found to offer suitable protections in the event of an invalid waiver by counsel. For example, D.T. could petition the superior court for rehearing as to his status as a conservatee. (John L., supra, 48 Cal.4th at p. 152; Welf. &Inst. Code, § 5358.3.) D.T. could also file a petition for writ of habeas corpus alleging that his counsel improperly waived his rights (as well as the ineffective assistance of counsel arguments we have rejected, ante, based on the state of the record in this direct appeal). (John L., at p. 153 [discussing with approval Conservatorship of Moore (1986) 185 Cal.App.3d 718, 730, which held that loss of liberty from improper conservatorship is de minimis in part because of availability of writ of habeas corpus].) Finally, D.T. could complain to the State Bar or bring a civil action against his counsel for misrepresenting his wishes to the trial court. (John L., at p. 155.)
Any of these options would allow him to offer any additional evidence that he might wish to present regarding the validity of his counsel's waiver on his behalf. John L. also makes clear that the availability of these alternative remedies mitigates the risk of counsel waiving proposed conservatees' rights without proper authorization. Our opinion here therefore establishes only that D.T. cannot challenge the validity of the waiver in this appeal, where neither the record nor D.T.'s briefing raises any suggestion that either the waiver or his absence from trial were contrary to his wishes. Nothing in this opinion prevents D.T. from pursuing any other remedies available to him.
IV. Inability to consent to psychiatric treatment
D.T. finally contends that the evidence was insufficient to support the trial court's order preventing him from refusing prescribed psychiatric medication. The parties agree on the relevant standard for evaluating whether a conservatee like D.T. should be able to consent to drug treatment. Courts examine whether clear and convincing evidence shows the conservatee is incompetent to give or withhold informed consent, and they do so by" 'focus[ing] primarily upon three factors: (a) whether the patient is aware of his or her situation (e.g., if the court is satisfied of the existence of psychosis, does the individual acknowledge that condition); (b) whether the patient is able to understand the benefits and the risks of, as well as the alternatives to, the proposed intervention . . .; and (c) whether the patient is able to understand and to knowingly and intelligently evaluate the information required to be given patients whose informed consent is sought ([Welf. &Inst. Code,] § 5326.2) and otherwise participate in the treatment decision by means of rational thought processes.'" (In re Qawi (2004) 32 Cal.4th 1, 18.) They also agree that the standard of our review of the trial court's ruling based on these three factors is for substantial evidence, taking into account the clear and convincing evidence standard of proof. (Cf. Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996, 1011.)
We conclude that substantial evidence supports the trial court's determination by clear and convincing evidence that D.T. should not be allowed to refuse psychiatric treatment. Dr. Krawczyk testified that D.T.'s significant disorganization and psychosis made him incapable of weighing the risks and benefits of psychiatric medication. She said that D.T. did not recognize that his psychiatric medications had benefited him because he did not know the symptoms of his illness beyond paranoia, meaning he did not recognize that he suffered from delusions and hallucinations. Additionally, D.T. himself told Dr. Krawczyk that he would not take his medications if he were on his own.
D.T. attacks the sufficiency of this evidence by arguing that Dr. Krawczyk testified that he had been willingly taking his medication and that there is no evidence that he has refused to take his psychiatric medication. He cites Dr. Krawczyk's testimony that he recognized paranoia as one of his symptoms and that he had requested a five-point restraining harness as evidence of his insight into his illness. He further contends that depriving him of the ability to refuse treatment prevents him from demonstrating in future conservatorship proceedings that he is not gravely disabled because he voluntarily takes his medication, without the prophylactic threat of forced medication.
The evidence D.T. cites does not undermine the weight and value of the evidence supporting the judgment. D.T.'s current willingness to take his medication offers little hope that he would rationally evaluate the benefits of medication and take it in the future, since he has expressly told Dr. Krawczyk that he would not take his medication if left to his own devices. D.T.'s recognition that he has paranoia and his recognition on one occasion that he might have difficulty refraining from assaulting other people also does not contradict the fact that he lacks insight into the other, equally concerning symptoms of his illness that consist of speaking to and following instructions from Dr. Cohen, who does not exist.
D.T.'s primary obstacles when attempting in the future to cast doubt on the Guardian's allegations of grave disability and avoid a renewal of the conservatorship are not the facts that he is required to take medication, but that his illness causes extensive delusions and hallucinations despite medication, he lacks insight into those symptoms, and he has no realistic plan for how to care for himself or ability to execute any plan if he were released from the Napa State Hospital. One piece of evidence of improvement of these conditions, of course, would be a commitment on D.T.'s part to taking his medication if released, something he has so far candidly admitted he would not do. If D.T. were able to achieve the necessary insight and improvement in his symptoms and ability to plan and execute, there would be no need for a conservatorship, regardless of whether he is currently able to refuse treatment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: POLLAK, P. J., STREETER, J.