Opinion
A165652
07-24-2023
Conservatorship of the Person of J.G., v. J.G., Petitioner and Appellant. PUBLIC GUARDIAN OF CONTRA COSTA COUNTY, Objector and Respondent,
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. P15-00935
CHOU, J.Defendant and appellant J.G. appeals the trial court's order granting the petition of plaintiff and respondent the Public Guardian of Contra Costa County (Public Guardian) for reappointment as the conservator of his person under the Lanterman-Petris-Short Act (LPS Act). (Welf. &Inst. Code, § 5000 et seq.) Following trial, the jury found beyond a reasonable doubt that J.G. was gravely disabled in that, as a result of a mental disorder, he was unable to provide for his personal needs for food, clothing, and shelter. J.G. contends that the trial court erred in admitting hearsay evidence contained in J.G.'s treatment records which the Public Guardian's expert relied on to support her opinion that J.G. was gravely disabled. We find any error to be harmless and affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
I. BACKGROUND
J.G. has been conserved since January 2016. In December 2021, the Public Guardian petitioned for reappointment as his conservator for another one-year term. (§ 5361.) J.G. objected and requested a jury trial, which began on April 18, 2022. Before trial, J.G. filed motions in limine to prohibit references at trial to any non-psychiatric medical conditions and to redact portions of J.G.'s treatment records that the Public Guardian planned to introduce at trial based on relevance and hearsay. J.G. submitted his proposed redactions to the trial court when he filed his motions in limine.
At the motions in limine hearing, the trial court overruled the majority of J.G.'s proposed redactions but agreed to redact one reference to an incident related to J.G.'s epilepsy. The court found other references to J.G.'s epilepsy "relevant because he ties his medication use to it." The court agreed to provide a curative instruction to the jury that epilepsy was not a mental health disorder that could support a finding of grave disability and was only relevant to J.G.'s medication use. Similarly, the court held that references to J.G.'s alcohol use were only relevant to his insight into his mental condition and agreed to provide the same curative instruction to the jury. J.G.'s counsel further argued that the records' references to J.G. cheeking or spitting out medication constituted inadmissible hearsay. The court disagreed and stated, "[t]hey were written in a passive voice that indicate to the Court that they [had] been directly observed behaviors." The court found the notes reliable and not barred as hearsay.
The Public Guardian's expert described "cheeking" as "act[ing] like you are taking the medication, but not actually swallowing the medication and spit[ting] it out somewhere else."
At trial, the Public Guardian called psychologist Ellen Shirgul. Shirgul was the program supervisor of Older Adult Mental Health for Contra Costa County and had performed approximately 100 evaluations for grave disability. Following voir dire, the trial court qualified Shirgul as an expert in the fields of psychology and grave disability evaluation. Shirgul conducted a 45-minute in-person interview of J.G. on April 15, 2022, and reviewed various documents that included the conservator's notes and report as well as J.G.'s treatment records. Shirgul also spoke with J.G.'s service coordinator, the conservator, as well as J.G.'s mother and father. Based on all the information she gathered, Shirgul diagnosed J.G. as suffering from schizoaffective disorder.
During Shirgul's interview of J.G., he talked about "speaking to people on nano telephones," "a master fabrication on a chip," and hearing "males' and females' voices . . . talk to him . . . about several different topics." Shirgul characterized these as auditory hallucinations and delusions. J.G. further told Shirgul that if he were no longer in a conservatorship, he would only take his seizure medication and maybe an anti-depressant but would not take his antipsychotic medications. When asked why he believed he was currently in a treatment facility, J.G. stated he was there for alcohol abuse and not for any mental health treatment. When asked about his plans for food, clothing, and shelter, J.G. responded he did not have a plan in place. Based on the interview, Shirgul did not believe J.G. understood his treatment needs as they related to his schizoaffective disorder. Shirgul concluded that J.G.'s "symptoms and his lack of insight and difficulty planning for the future make it very difficult for him to obtain shelter." It would also be difficult for J.G. to manage his medications on his own due to the number of medications and his disinterest in taking many of them. Shirgul opined that J.G. was gravely disabled.
The Public Guardian also called J.G.'s father as a witness. J.G.'s father testified about the symptoms he observed in J.G. over the past few years when J.G. did not take his medication. These included anxiety, irritability, and frustration. J.G.'s father has also observed J.G. sitting across from him while looking away and moving his lips without saying anything. The father last observed these symptoms just three weeks before trial when he and J.G. went out for lunch. J.G.'s father has heard J.G. talk about a master chip controlling his thoughts and nano telephones. When J.G. was living with his mother about a year ago, he would at times tell his father he did not need medication for a psychological illness. At other times, J.G. would say he would take the medications if he ever needed it. The father never saw J.G. take his medications during that time even though the father was "basically with him 24 hours a day." Finally, J.G.'s father testified he could not provide shelter to J.G. because he lived in a van and could not provide medication management to J.G. due to J.G.'s refusal to take medication.
J.G. testified and acknowledged that he was currently in a treatment facility for a mental health disorder. J.G. believed he had Asperger's and psychosis and did not know much about schizoaffective disorder. J.G. thought the side effects of his antipsychotic medications were hurting him more than they helped and stated he would continue taking them if his psychiatrist told him to and clarified why they were more necessary than harmful. J.G. admitted to flushing his medication down the toilet at times and that he still hears voices which could make it hard to concentrate. The antipsychotic mediations helped J.G. with these voices. There were times when J.G. did not take his medications when he was staying with his mother because he did not believe he needed so much medication.
When asked what he would do about food and clothing if he did not have a conservator, J.G. stated he "would probably need a certain amount of [his] check to buy food and clothes" but that he did not have everything he needed. He earned some money serving snacks at the treatment facility and testified he "could do a temp job or a real part-time or full-time job outside the facility." J.G. was not sure where he would stay if he left the treatment facility and stated he would either go to a crisis residential facility or stay with his mother.
During rebuttal, Shirgul explained that the intake process for getting admitted into a crisis residential facility involved several steps and was "not something that happens quickly." Admission is also not guaranteed, especially if the facility did not have an available bed.
The jury found J.G. was gravely disabled due to a mental disorder. Based on this finding, the trial court ordered reestablishment of the conservatorship. J.G. timely appealed.
J.G. acknowledges that his appeal is arguably moot since the conservatorship in dispute expired on January 11, 2023. Although J.G.'s challenge may be technically moot, we exercise our discretion to decide this case because it raises important issues that are capable of repetition but are likely to evade review due to the short duration of LPS conservatorships. (Conservatorship of John L. (2010) 48 Cal.4th 131, 142, fn. 2.)
II. DISCUSSION
A. Law and Standard of Review
Under the LPS Act, a conservator "may be appointed for a person who is gravely disabled as a result of a mental health disorder ...." (§ 5350.) "Gravely disabled" means, among other things, "[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 needs for food, clothing, or shelter." (§ 5350, subd. (e)(1).) "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." (Conservatorship of Smith (1986) 187 Cal.App.3d 903, 908.)
" '[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. [Citations.] On appeal, we apply the substantial evidence test to determine whether the record supports [a] finding of grave disability. The testimony of one witness may be sufficient to support such a finding." (Conservatorship of Jesse G. (2016) 248 Cal.App.4th 453, 460-461.)
B. Any Error Was Harmless.
J.G. does not raise a substantial evidence challenge to the jury's finding of grave disability. Instead, he argues that the admission of hearsay statements in his treatment records "was prejudicial because it allowed the expert testimony to appear as if it was based on substantial evidence in the record" and that "without that evidence, the jury might have reached a different conclusion." We are unpersuaded based on the applicable standard of review with respect to the admission of hearsay evidence, which J.G. fails to set forth in his brief.
" 'We review the erroneous admission of expert testimony under the state standard of prejudice.' [Citation.] The standard for prejudice applicable to state law error in admitting hearsay evidence is whether it is reasonably probable the appellant would have obtained a more favorable result absent the error." (Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1286.) Here, J.G. raises a number of hearsay challenges to portions of his treatment records which were admitted at trial. Shirgul acknowledged that she relied on these records in part in forming her opinion and was questioned about various notes contained in these records during her direct examination. For example, Shirgul was asked whether certain behavioral notes were consistent with what Shirgul observed during her interview with J.G.
We need not address J.G.'s specific hearsay challenges because we find that even if the trial court erred in admitting that hearsay evidence, it is not reasonably probable that the jury would have reached a different result in the absence of the improperly admitted evidence.
First, Shirgul's opinion that J.G. remained gravely disabled was based on other evidence besides the treatment records. Specifically, she also relied on her in-person interview of J.G. and her conversations with J.G.'s father, mother, and the conservator. The notes in the records related to J.G.'s behaviors were not necessary to Shirgul's opinion because these behaviors were independently confirmed through Shirgul's interview of J.G. as well as the testimony of J.G. and his father.
For example, based on what J.G. said during his interview, Shirgul concluded that he experienced auditory hallucinations and delusions, which, in turn, made it difficult for J.G. to live independently and apply for a job and housing. And based on J.G.'s comments regarding his antipsychotic medications during his interview and at trial, Shirgul expressed concerned about how J.G. would manage his medications on his own and whether he would take his medications consistently. Finally, J.G.'s assertion that he was at the treatment facility for alcohol abuse supported Shirgul's conclusion that he lacked insight into his need for mental health treatment and was unable to accept that he was in a mental health facility.
Second, J.G.'s own testimony at trial independently confirmed that, due to a mental disorder, he was unable to provide for his personal needs for food, clothing, or shelter without a conservator. For example, J.G. testified that he still heard voices at times which affected his ability to concentrate. J.G.'s testimony about his willingness to take his medications was also ambiguous. Although J.G. claimed he would take "whatever [medications the] psychiatrist [he] was seeing at the time told [him] to take," he initially suggested that he would only do so if he was satisfied with the psychiatrist's explanation of why his need for the medications outweighed their harmful effects. He then stated, albeit less than clearly, that he would take the medications even if he was not satisfied with the psychiatrist's explanation. In contrast to these somewhat ambiguous statements about his willingness to take his medications, he told Shirgul just four days earlier that he would only take his anti-seizure and anti-depressant medications, but not his antipsychotic medications. In any event, J.G. could not articulate a plan as to how he would manage all his medications even if he was willing to take them.
J.G. also could not plausibly explain where he would stay if he left the treatment facility. He testified he would "either go to a crisis residential or stay with [his] mother" but neither option appeared realistic. Shirgul explained that the process for getting into a crisis residential facility was not easy or guaranteed and J.G.'s mother had evicted J.G. from her house because she did not want to tolerate his drinking. J.G. did not have the funds to get his own apartment in the near future and testified he would need someone to help support him without identifying any such person. J.G. vaguely stated he could get a temporary or permanent job outside the facility in order to buy food and clothing but did not elaborate on how he would go about applying for a job or what type of job this may be.
Finally, the testimony of J.G.'s father reinforced that J.G. remained gravely disabled. J.G.'s father stated there have been times, including just three weeks earlier, when J.G. sat across from him, looked away, and moved his lips without saying anything. This confirmed that J.G. still experienced auditory hallucinations and delusions. When J.G. lived with his mother, his father never saw J.G. take any medication and testified that J.G. would sometimes flush a bottle of his medication down the toilet. J.G. has also told his father that he did not need antipsychotic medication at times. Again, this confirmed that J.G. was unlikely to manage his medications on his own. J.G.'s father also confirmed he could neither provide medication management nor shelter for J.G.
J.G. concedes that without the disputed evidence, there might have still been substantial evidence to support the jury's finding but then argues "there was also substantial evidence in the record to create a reasonable doubt about whether he was gravely disabled." But he fails to cite any evidence or testimony to support this argument. Even without the disputed evidence, the testimony of the only three witnesses at trial overwhelmingly supported the jury's finding of grave disability. Moreover, there was little to no evidence to the contrary. J.G. has therefore not shown that any erroneous admission of evidence was prejudicial.
Because we find any error to be harmless, we need not address J.G.'s ineffective assistance of counsel argument.
III. DISPOSITION
The order is affirmed.
We concur. JACKSON, P. J., SIMONS, J.