Opinion
A166434
06-06-2023
Conservatorship of the Person of S.H., v. S.H., Conservatee and Appellant. PUBLIC GUARDIAN OF CONTRA COSTA COUNTY, Petitioner and Respondent,
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. P22-00444)
Petrou, J.
S.H. appeals the trial court's post-jury trial order establishing a one-year conservatorship of his person under the Lanterman-Petris-Short Act ("LPS Act") (Welf. &Inst. Code, §§ 5000 et seq.) and imposing special disabilities. His sole contention on appeal is that the trial court erroneously denied his request to instruct the jury with CACI No. 203 ("CACI 203"), which tells jurors that in weighing evidence they are entitled to consider the weakness of a party's evidence in light of the apparent ability of that party to produce stronger evidence. We affirm.
Background
We include only those facts necessary for our analysis and disposition.
S.H., who was born in 1992, began experiencing mental health issues in his late teens and early 20s around the time he joined the army and left home for boot camp out of state. While at boot camp, he was first diagnosed as bipolar. The army discharged him, and he returned home to California around 2012. According to S.H.'s grandfather, S.H. experienced mental health issues once back home. He had trouble with his memory and with communicating and had difficulty concentrating. He moved off-topic during conversations and made comments that led family to believe he was hallucinating. Around 2013 or 2014, S.H. began living on the streets. In 2014, he began receiving services from county mental health services.
In March 2022, the Contra Costa County Health Services Department (referred to as the "Public Guardian") filed a petition for the appointment of a conservator of S.H.'s person, alleging S.H. was gravely disabled because of a mental disorder and unwilling to accept or incapable of accepting treatment voluntarily. That same day, the court appointed a temporary conservator of S.H.'s person. At the initial hearing on the petition for appointment, S.H. objected to the petition and requested a jury trial.
The jury trial proceeded over the course of three days in October 2022. The Public Guardian presented the testimony of S.H.'s grandfather, who had witnessed S.H.'s struggles firsthand; a licensed psychiatric nurse who had previously helped S.H. secure treatment and obtain certain benefits; S.H.'s temporary conservator since early 2022; and expert psychiatrist, Dr. Michael Levin. Of these witnesses, we will detail only Dr. Levin's testimony, which is the most relevant to S.H.'s contentions on appeal.
Dr. Levin, a psychiatrist working for Contra Costa County, was qualified by the court as an expert in the field of psychiatry and evaluation for grave disability. He had spent 38 years in private practice prior to joining the county in 2012. In 2013, he began his work for the public conservator's office evaluating people for grave disability under the LPS Act. He was aware of the standard for grave disability under the law, as set forth in the Diagnostic and Statistical Manual of Mental Disorders, or the DSM-V, and had made approximately 300 such evaluations.
In preparation for his testimony, Dr. Levin did several things. The day before the trial, he interviewed S.H. for 35 to 45 minutes in person at the county psychiatric facility where S.H. was hospitalized. He also reviewed S.H.'s hospital psychiatric records and case notes from his conservator. In addition, he spoke to several people: the temporary conservator; S.H.'s grandfather; two of S.H.'s treating psychiatrists; and S.H.'s social worker. The information gathered from these sources was sufficient for him to diagnose whether S.H. had a mental health disorder. Based on the information, Dr. Levin diagnosed S.H. with schizoaffective disorder, but included a "differential diagnosis," explaining S.H. could alternatively be suffering from a variant of bipolar disorder. Both were mental illnesses as defined in the DSM-V.
Dr. Levin explained that schizoaffective disorder consisted of two components - thought disorder and mood disorder - and described the symptoms of each. Thought disorder symptoms included the denial of mental illness, delusions, auditory and visual hallucinations, disorganized thoughts and behavior, and impoverished thoughts (slowed or limited thoughts). Blunting, which was the absence of experiencing internal feelings, was another symptom. The lack of initiative, a diminished capacity for pleasure, and inattention to daily living tasks such as personal hygiene and dressing were more symptoms of thought disorder. Mood disorder symptoms included mood swings, depression, or mania. Moods occurred on a spectrum with extreme depression on one end and extreme mania on the other. Those who were extremely depressed often isolated themselves and were fearful, agitated, or suicidal. Those on the other end - the extremely manic - often existed in an activated or agitated state; they had rapid thoughts, diminished capacity for sleep; and might also carry delusional ideas of grandiosity. The symptoms of bipolar disorder were consistent with the mood disorder symptoms of schizoaffective disorder.
Dr. Levin explained that schizoaffective disorder was generally a chronic disorder, meaning it persisted throughout one's life. There was no cure for schizoaffective disorder, but it could be treated with antipsychotic or mood stabilizing medications. Group therapy, family support networks, and structured environments could also help.
Dr. Levin described S.H. as verbal, responsive, and as cooperative as could be during the interview. But he showed several symptoms of schizoaffective disorder, including slowed speech and thought patterns and disorientation. For instance, he did not know the day of the week and needed time to figure out the year. He seemed quite anxious and tense and rocked back and forth in his seat. S.H. also exhibited anosognosia, a denial that he had a psychiatric illness. He was unclear on why he was in the hospital and was generally unaware of having any symptoms of mental illness. When Dr. Levin asked S.H. how he came to be in the hospital, S.H. said he really did not know. S.H. denied that he had a mental illness but reported that someone had informed him he was bipolar years earlier. It was not totally clear to Dr. Levin whether S.H. agreed with the diagnosis. When Dr. Levin asked him if he thought his hospitalization was useful, S.H. responded that it was not really a good idea. When the doctor asked him about his understanding of how his mental illness manifested itself, S.H. said he did not know. In Dr. Levin's view, S.H.'s denial about having a major psychiatric illness reflected limited insight into his illness, and insight was critical to an ability to comply with treatment.
After the court admitted into evidence Exhibit 3 - S.H.'s medical records from the county hospital - Dr. Levin discussed the various medications S.H. was being prescribed. S.H.'s prescriptions included the following: (1) haloperidol (aka Haldol), an oral antipsychotic, to reduce agitation and hallucinations; (2) lithium, a mood stabilizer, to calm users suffering from agitation or mania and regulate their mood; and (3) olanzapine, a lozenge form of an antipsychotic, that also worked to reduce agitation and hallucinations and help stabilize mood. Under his current regimen, he took haloperidol once a day, lithium in two different amounts twice a day, and olanzapine in two different amounts twice a day.
S.H. told Dr. Levin that he was willing to continue taking psychiatric medication but did not know the name of his medications. Nor did he know whether the medications were helping. At times, he stated that he did not think the medicine mattered or did not see any benefit to them. Other times, however, he commented that they made his mind more stable. For Dr. Levin, this confusion was a poor indicator of S.H.'s ability to comply with treatment, as someone who understood what medication he or she was taking (including names and doses) and who believed in their efficacy was more likely to continue taking them.
In addition, S.H. told Dr. Levin that he was not depressed, nor had he ever been suicidal. He acknowledged that it was difficult for him to concentrate. S.H. denied ever having outpatient treatment or working with a treating psychiatrist but said he went to a hospital to get medication, likely referring to psychiatric emergency services where a patient can secure a short term of medication. He did not express any plans to see a psychiatrist on his own.
Dr. Levin spoke with S.H. about where he lived before the hospital. S.H. informed the doctor that he had been living on the streets - in front of people's property or under bridges. He did not carry a tent or other protection. He understood that living on the streets entailed some risks and alluded to being attacked at least one time but preferred it over a facility. He stayed briefly at a transitional facility called Hope House, but if given a choice between there and the streets, he would choose to be on the streets. S.H. was not sure why he left Hope House but noted that he liked to walk around and wanted to smoke a cigarette.
In response to Dr. Levin's inquiries about food and clothing, S.H. stated that he mostly got food by panhandling. Once he got money, he would buy items at a nearby liquor store. For clothing, S.H. said he would find clothes or did not really know.
Dr. Levin provided further testimony regarding S.H.'s medical records. According to a record of psychiatric emergency services provided a few months earlier in July 2022, S.H. complained of a brain tumor, reflecting a lack of "reality testing." It also stated that S.H. had difficulty reporting his personal history due to a disorganized thought process and mumbled speech, though he acknowledged hallucinating. S.H. reported that he was not on his lithium, which indicated to Dr. Levin that he was aware of his medication by name but struggled with compliance. The report noted S.H.'s willingness to take the medication, however. On this occasion, S.H. was subsequently transferred to an inpatient unit for two weeks due to the need for further treatment. Upon discharge, S.H. was still unable to articulate the reason for his admission. He simply stated he needed one dose of lithium and would be ready to go, again demonstrating to Dr. Levin his lack of insight about how his psychiatric problems manifested themselves and his need for medication. S.H. was also unable to inform the hospital where he would go.
A record from another psychiatric emergency service and subsequent transfer to inpatient care from August 2022 indicated S.H. had been irritable, mumbling, difficult to understand, and unable to have a meaningful conversation upon admission. In Dr. Levin's view, this admission just weeks after his prior one indicated that S.H. had been out in the community and had decompensated to the point where he had to go back to hospital emergency services. Dr. Levin observed that it did not take long for S.H. to become more symptomatic, and to demonstrate symptoms of disorganization and irritability to the point of throwing an object. He further noted that S.H.'s inability to share his grandfather's phone number meant his memory and orientation were poor. S.H.'s statements regarding his lack of knowledge of the medications he was taking and the reasons for them were consistent with the statements Dr. Levin heard during his interview. S.H.'s focus on being discharged from the hospital signified improving his psychiatric status was less important than getting out, and his repeated inquiries several times a day about discharge reflected impaired memory. As before, S.H. further acknowledged that he had left Hope House and had no plan of where to go. This reflected poor insight, impulsivity, lack of good planning, and lack of cooperation with treatment.
Dr. Levin concluded that S.H. had minimal insight into his mental health disorder. He recognized he had a psychiatric illness, or had been told that, but had a limited ability to plan for what would be in his best interest long-term. Asked if he believed S.H. would continue taking his medications if released, Dr. Levin stated that he thought S.H. would do so if given a short supply or until they ran out. Dr. Levin opined that after a short time, a couple of weeks, S.H. would possibly return to the psychiatric emergency room to obtain more. While S.H. was aware he was taking medicine, he did not know the names of the medicines, how they worked, or whether they were helpful. Therefore, if S.H. did not take his antipsychotic and mood stabilizing medications, he would become more disorganized and symptomatic and would likely end up back in a psychiatric facility. According to Dr. Levin, S.H.'s mental health disorder affected his ability to provide food, clothing, and in particular shelter. Limited executive function, which impacted one's ability to plan, was a symptom of S.H.'s disorder and affected his ability to maintain shelter and led to poor decision making. Dr. Levin also noted that S.H.'s other symptoms, such as his disorientation and disorganization, could also affect his ability to get and maintain shelter.
During cross-examination, Dr. Levin confirmed that he only spoke with S.H. one time for 35 to 45 minutes the day before trial and had never previously observed S.H. He was not and had never been S.H.'s treating physician and only spoke to S.H. as part of his duties with the conservator's office. Dr. Levin did not have the types of interactions with S.H. he had with the clients he treated, for whom he held ongoing meetings, provided supportive therapy, prescribed medication, and made various referrals. He also answered questions about how long he spoke with S.H. on the various topics during his interview, which included a couple of questions regarding his medications.
After the Public Guardian rested, S.H. testified on his own behalf. He stated that if he were to leave the hospital, he would go to the Monument Crisis Center, which would help him locate somewhere to stay. The center would also provide him food, clothing, and tents. He would be willing to stay at a place like Hope House, even if they had rules about when he could leave.
S.H. agreed with the testimony diagnosing him with schizophrenia and bipolar disorder. He also thought the medications helped him. If released from the hospital, S.H. would be willing to take his medication and work with a doctor, social worker, and case worker. If he ran out of medication, he would return to the hospital and talk with doctors there. Asked if he remembered the medications he was on, he stated, "Haldol, lithium." He would be willing to take them twice a day if that was necessary. Asked how he would remember to take the medicine twice daily, he responded, "I would remember."
During trial, S.H. requested that the jury be instructed with CACI 203, entitled "Party Having Power to Produce Better Evidence." Counsel for the Public Guardian objected and stated that she did not believe that the case fell within Evidence Code section 412, on which the instruction was based. The trial court agreed and declined to give the requested instruction.
The jury returned a verdict of gravely disabled due to a mental disorder. The court appointed Contra Costa Health Services Department conservator of S.H.'s person for a one-year period starting October 12, 2022. The court further imposed the following disabilities on S.H.: (1) the right to consent to treatment related to grave disability but not including psychotropic medication; (2) the right to drive; (3) the right to enter into contracts; and (4) the right to possess or own a firearm or any other deadly weapon. The court found that the least restrictive appropriate placement for S.H. was at a Mental Health Rehabilitation Center. S.H. now appeals the conservatorship order.
Discussion
S.H. argues that the conservatorship order should be reversed because the trial court erroneously and prejudicially denied his request to instruct the jury with CACI 203, which instructs jurors that in weighing the evidence they are entitled to consider the weakness of a party's evidence in light of the apparent ability of that party to produce stronger evidence. We disagree.
The LPS Act governs involuntary treatment of the mentally ill in California. (Conservatorship of George H. (2008) 169 Cal.App.4th 157, 159.) Under the Act, "[a] conservator of the person, of the estate, or of the person and the estate may be appointed for any person who is gravely disabled as a result of a mental health disorder." (Welf. &Inst. Code, § 5350.) "Gravely disabled" means "[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." (Id. § 5008, subd. (h)(1)(A).) "The proposed conservatee has a right to jury trial on the question of grave disability at which the party urging conservatorship has the burden of proof beyond a reasonable doubt." (Conservatorship of P.D. (2018) 21 Cal.App.5th 1163, 1167 (P.D.).)
CACI 203, which concerns a jury's evaluation of evidence, provides: "You may consider the ability of each party to provide evidence. If a party provided weaker evidence when it could have provided stronger evidence, you may distrust the weaker evidence." The instruction derives from Evidence Code section 412, which states: "If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust." (Evid. Code, § 412.) Thus, when a party fails to produce evidence that he or might reasonably be expected to produce, an inference is permitted that such evidence would be unfavorable to that party. (Lumpkin v. Friedman (1982) 131 Cal.App.3d 450, 456.) "The paradigmatic example of the application of Evidence Code section 412 is where a party has documentation of an event, but instead offers oral testimony by a potentially biased witness. The witness's testimony may be viewed 'with distrust' under the statute." (Orange County Water Dist. v. Alcoa Global Fasteners, Inc. (2017) 12 Cal.App.5th 252, 363.)
To justify an instruction under CACI 203, it must be shown that a party was in possession of or had access to better and stronger evidence than was presented. (People v. Taylor (1977) 67 Cal.App.3d 403, 411-412 ["Section 412 only applies when it can be shown that a party is in fact in possession of or has access to better and stronger evidence than was presented."]; Neumann v. Bishop (1976) 59 Cal.App.3d 451, 480-481 [no error to not give instruction under Evidence Code section 412 where there was no showing that witnesses not called were qualified to testify about any fact in issue or participated or actually witnessed collision].)
"A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) When the contention on appeal is that the trial court failed to give a requested instruction, we review the record in the light most favorable to the party proposing the instruction to determine whether the instruction was warranted by substantial evidence. (Ayala v. Arroyo Vista Family Health Center (2008) 160 Cal.App.4th 1350, 1358.) "A judgment may not be reversed for instructional error in a civil case 'unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.'" (Soule, supra, 8 Cal.4th at p. 580.) That is, reversal is appropriate where it is reasonably probable that the party complaining of the instructional error would have obtained a more favorable result in its absence. (Id. at p. 571.) We review a contention of instruction error de novo. (P.D., supra, 21 Cal.App.5th at p. 1167.)
S.H. asserts that his defense at trial "centered not only on the weakness of the Public Guardian's evidence, but on the availability of stronger evidence that the Public Guardian, for whatever reason, chose not to present." Specifically, he contends that the "inference was clear that the Public Guardian could have but did not present testimony from [his] treating team who, unlike [Dr.] Levin, had personal knowledge of [his] mental status and condition." S.H. claims such testimony was clearly available to the Public Guardian considering Dr. Levin's testimony that he consulted with them in reaching his conclusions. He also claims that such testimony would have been stronger than Dr. Levin's "actual, second-hand testimony" especially since the doctor lacked the type of detailed interactions with him that he had with his own patients. He further contends that the evidence regarding S.H.'s medication - "such as hospital records or the testimony of appellant's treatment team" - would have been stronger than Dr. Levin's testimony especially since Dr. Levin acknowledged that he only asked "a couple of questions" regarding his medications.
For the purposes of our analysis, we shall assume without deciding that the Public Guardian controlled or had access to and could have produced as witnesses the members of S.H.'s treatment team, as well as his medical records. Assuming as much, we still would find no error in the court's refusal to provide the CACI 203 instruction because S.H. has made no showing that such evidence was stronger than what was presented at trial.
As to S.H.'s treatment team, Dr. Levin testified that he spoke with two members of the team and their input was among several sources of information that enabled him to reach his psychiatric diagnosis and draw his conclusions. S.H. makes no showing that any member of his treatment team had any information that in any way differed from the testimony Dr. Levin provided. He cites absolutely no evidence in support of his assumption that the treatment team had stronger and more satisfactory evidence of some relevant fact.
With respect to S.H.'s medical records, Dr. Levin testified that he reviewed the psychiatric records from the county hospital and that the content of the records was another source of information that enabled him to reach his psychiatric diagnosis and draw his conclusions. When asked about S.H.'s medication during his testimony, Dr. Levin consulted these records to identify S.H.'s current medications and their dosages. He also described these records when asked about psychiatric emergency services provided to S.H. and his subsequent admission into the county hospital in July 2022 and August 2022, just a few months before trial. Critically, S.H. disregards that fact that these medical records were admitted into evidence. Even if they had not been, he makes no showing that the records offered stronger or more satisfactory information than that provided by Dr. Levin's testimony.
To the extent S.H. suggests other hospital records constituted stronger evidence, he fails to identify such records with any specificity and makes no showing that such records would have been stronger evidence of some relevant fact.
We also reject S.H.'s claim of instructional error with respect to the Public Guardian's decision to not produce S.H.'s treatment team as witnesses because he fails to show that he could not have produced them as well. It is improper for counsel to invite a jury to draw an adverse inference from the opposing party's failure to call a particular witness if the witness is equally available to both parties. (Smith v. Covell (1980) 100 Cal.App.3d 947, 956-957 [improper comments by defense counsel regarding plaintiff's failure to call treating physicians, where plaintiff's treating physicians were known and equally available to defendant by subpoena]; cf. Fleming v. Safeco Ins. Co. (1984) 160 Cal.App.3d 31, 41-42 [error to comment on opposing counsel's failure to produce witness, where it appeared witness would have been equally available to both parties].) In its brief, the Public Guardian notes that S.H. "fails to acknowledge that S.H.'s trial counsel had an equal opportunity to subpoena witnesses mentioned in the records." S.H. does not address this contention in either of his briefs. Because the witnesses appear to have been equally available to S.H. - and S.H. makes no argument or showing to the contrary - CACI 203 did not apply.
S.H. identifies portions of the record which purportedly "demonstrate that stronger evidence was available." These include Dr. Levin's testimony that he was not involved in S.H.'s treatment; Dr. Levin's acknowledgment that his interview with S.H. lasted 35 to 45 minutes and entailed limited interaction; and Dr. Levin's admission that he only asked [S.H.] a "couple of questions" about his medications. He argues that "th[e]se facts demonstrate that stronger evidence was in fact available" in the form of "the testimony of the psychiatrists with whom [Dr.] Levin consulted" and the "medical and medication records that [Dr.] Levin conceded he reviewed." But such superficial facts are inadequate to establish that the testimony of S.H.'s treatment team or the medical records constituted stronger evidence. Absent any showing regarding the nature of the testimony S.H.'s treating psychiatrists would give or the content of the relevant medical records (which we emphasize were admitted into evidence), it would be wholly speculative to conclude that such evidence would be stronger than Dr. Levin's testimony on a given point. Because we conclude the trial court did not err in refusing to give CACI 203, we shall not address S.H.'s prejudice arguments.
Indeed, given S.H.'s medical records were admitted into evidence, it may be reasonable to infer that whatever testimony his treating psychiatrists might have been expected to give was already in the record and would have been merely cumulative.
Disposition
The conservatorship order is affirmed.
WE CONCUR: Tucher, P.J. Fujisaki, J.