Conservatorship of K.P. ( 2019 )

Filed 8/28/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
Conservatorship of the Person and B291510
Estate of K.P.
(Los Angeles County
PUBLIC GUARDIAN OF THE Super. Ct. No. ZE032603)
COUNTY OF LOS ANGELES,
Petitioner and Respondent,
v.
K.P.,
Objector and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Robert Harrison, Judge. Affirmed.
Christian C. Buckley, under appointment by the Court of
Appeal, for Objector and Appellant.
Office of the County Counsel, Mary C. Wickham, County
Counsel, Rosanne Wong, Assistant County Counsel, and William
C. Sias, Deputy County Counsel, for Petitioner and Respondent.
Conservatee K.P. (K.P.) appeals from a judgment entered
following a jury trial on the petition by the Public Guardian of
the County of Los Angeles (public guardian) for reappointment as
K.P.’s conservator under the Lanterman-Petris-Short Act (LPSA)
(Welf. & Inst. Code § 5000 et seq.).1 After a three-day trial, the
jury found that K.P. was gravely disabled pursuant to the LPSA,
and the trial court granted the public guardian’s petition for
reappointment. K.P. argues that the court erred in instructing
the jury pursuant to California Civil Jury Instruction (CACI) No.
4000, which sets forth the elements of a claim that an individual
is gravely disabled. Specifically, K.P. contends that the trial
court erred in omitting a third element from CACI No. 4000,
which required a finding that the individual “is unwilling or
unable voluntarily to accept meaningful treatment.” We find no
reversible error and affirm the judgment.
BACKGROUND
The LPSA
“The [LPSA] governs the involuntary detention, evaluation,
and treatment of persons who, as a result of mental disorder, are
dangerous or gravely disabled. (§ 5150 et seq.)” (Conservatorship
of John L. (2010) 48 Cal. 4th 131, 142 (John L.).) Under the
LPSA, the court may “appoint a conservator of the person for one
who is determined to be gravely disabled (§ 5350 et seq.), so that
he or she may receive individualized treatment, supervision, and
placement (§ 5350.1).” (John L., at p. 142.) The LPSA defines a
person who is “gravely disabled” as one who is “unable to provide
for his or her basic personal needs for food, clothing, or shelter.”
(§ 5008, subd. (h)(1)(A).)
____________________________________________________________
1 All further statutory references are to the Welfare &
Institutions Code unless otherwise noted.
2
“An LPSA conservatorship automatically terminates after
one year, and reappointment of the conservator must be sought
by petition. (§ 5361.)” (John L., supra, 48 Cal.4th at p. 143.)2
Conservatorship reappointment pretrial proceedings
On April 19, 2018, the public guardian filed a petition for
reappointment as conservator of K.P. under sections 5350
through 5368. On May 5, 2018, K.P. filed a demand for jury trial.
At the trial readiness conference on June 14, 2018, the
public guardian filed a memorandum dated June 12, 2018,
containing information from Dr. Sara Mehraban, Program
Coordinator at Gateways Satellite, where K.P. was being treated.
Dr. Mehraban observed that recently K.P. had become paranoid.
In May 2018, he was sitting outside and was accidentally
“grazed” by a basketball. He then charged a fellow resident who
he attempted to stab with a pen because K.P. believed the other
individual had intended to hit him with the basketball. K.P.
continued to try to attack the other resident even with staff
intervention, and had to be hospitalized because he would not let
go of the situation and still wanted to attack the other resident
later in the day.
Dr. Mehraban reported that K.P.’s mother was of the view
that K.P. does not have a mental illness. K.P.’s mother also
____________________________________________________________
2 We note that the reappointment at issue terminated on
June 3, 2019. Because the conservatorship from which K.P.
appeals has terminated, this appeal is technically moot.
(Conservatorship of David L. (2008) 164 Cal. App. 4th 701, 709.)
However, because a conservatorship is brief in comparison with
the appellate process, this issue is one that is “‘capable of
recurring, yet of evading review because of mootness.’” (Ibid.)
We therefore conclude it is appropriate to address the issue in
this case.
3
believed that K.P.’s medications were making him act as he did,
and she did not believe that the recent reported incident of
aggression took place. Dr. Mehraban thought mother’s visits
were negatively affecting K.P. and intended to revoke them until
K.P. improved. Dr. Mehraban was aware of the upcoming trial
and wanted the court to be aware of this information.
Trial
A three-day jury trial commenced on June 20, 2018. K.P.
appeared with his counsel.
Preliminary matters
Prior to trial the court addressed the ground rules for trial,
emphasizing the need to focus the jurors on the question of
whether K.P. was gravely disabled. The court asked counsel not
to talk about the length of, or results of, a conservatorship. K.P.’s
counsel argued that the jury should be made aware of the length
of the conservatorship and that forced medication could be
administered against a person’s will. The court said counsel
should remain within the framework of CACI No. 4000. K.P.’s
counsel objected to the instruction. The court ordered K.P.’s
counsel not to refer to the time limits of a conservatorship.
K.P.’s counsel then addressed CACI No. 4000, by arguing,
“there was a time where for decades we would have that element
three.” K.P.’s counsel conceded that the third element had
dropped out of consistent use in CACI No. 4000. However, he
advocated for its inclusion here because he intended to show that
K.P. was “willing to voluntarily accept treatment.” K.P.’s counsel
acknowledged that there had been a “so-called ‘Missouri
Compromise’” where the element of willingness and ability to
voluntarily accept meaningful treatment had been added to CACI
No. 4002, in the very last sentence. K.P.’s counsel argued that
4
this was insufficient because it was “thrown in at the bottom of
some other less consequential later jury instruction.”
The court observed that case law indicated that the version
of CACI No. 4000 the court would provide, properly laid out the
elements that the public guardian needed to prove in order to
show that an individual was gravely disabled. However, the jury
should be able to consider willing, voluntary acceptance of
treatment, therefore it was included in CACI No. 4002.
Opening arguments
The parties provided their respective opening statements to
the jury. The public guardian said it would prove, beyond a
reasonable doubt, that K.P. had a mental disorder, and that as a
result of that disorder, K.P. was gravely disabled.
K.P.’s counsel outlined the evidence that he would provide
to show that K.P. was not gravely disabled. Counsel argued, “If
anything, the evidence will show that he has a plan to take care
of himself.” Counsel stated:
“So just keep in mind when you’re hearing all
this evidence, and then, ultimately, you deliberate,
it’s the county that’s got to convince you beyond a
reasonable doubt that he’s gravely disabled which
means, look, if he’s off conservatorship, he won’t have
a stable place to stay; that he can’t take care of his
basic food, clothing, or shelter and because it’s going
to be an issue here, there is no viable alternative. By
‘alternative’ meaning, look, what his family is able to
do to help him out, it’s not enough. He’s still gravely
disabled. So they have that extra burden here of
showing there is no third-party assistance to help
him out and that, ultimately, he’s unwilling to seek
treatment.”
5
K.P.’s counsel finished with “If anything, the evidence
shows he’s willing to continue with his treatment.”
Trial testimony
K.P.’s mother
K.P.’s counsel called Karen Celestine (mother), K.P.’s
mother.3 On direct examination, mother testified that she
believed her son had a mental illness; that she was willing to
help him see a psychiatrist and help him fill prescriptions; that
she believed he needed to continue taking his medications; and
that she would insist that he take his medications if he resisted
taking them.
Mother could not provide housing for K.P. However, she
would help him find an apartment or board and care. She agreed
to take him to a mental hospital if his symptoms returned or he
was resisting taking his medications.
On cross-examination, mother was asked about her
immediate plan for finding K.P. housing if he were to win his jury
trial. Mother indicated that she “would find housing,” by “looking
for him and going to talk to the people and . . . getting quotes and
stuff.” When asked where K.P. would be staying during the
“interim” period while she looked for housing, she responded,
“Well, he’s at the facility right now. So I don’t know how that
works.” K.P.’s medical doctor was still in place, and for his
psychiatric and mental health issues, she testified “They refer
him. He has referrals.” On redirect, mother indicated that she
would work with K.P.’s current social worker on discharge
____________________________________________________________
3 The court had been advised, outside of the presence of the
jury, that mother was starting a new job the following day and
would not be available to return to court and testify. The court
agreed that the witnesses would be called out of order.
6
planning. She typically worked during the week and visited K.P.
on the weekends.
Dr. Sara Mehraban
Dr. Mehraban, the licensed clinical psychologist employed
by the residential agency where K.P. was residing, was called by
the public guardian to offer her expert opinion. She normally
saw K.P. five days a week for nearly eight hours a day. She met
with him individually and in groups.
Dr. Mehraban’s most recent examination of K.P. had been
earlier that morning at the facility. Dr. Mehraban testified that
K.P. had been diagnosed with schizophrenia. As a result of this
disorder, K.P. experienced auditory hallucinations. During
auditory hallucinations, he believes he is hearing voices, and
responds to them. In addition, K.P. suffered from delusions,
which are false beliefs that are in contradiction to reality. The
false beliefs are considered bizarre. Dr. Mehraban testified that
K.P.’s delusions tended to be paranoid, where he believed people
were out to get him and people were out to hurt him. K.P. was
often scared of people hurting him.
K.P. had experienced some delusions that morning. He
requested to be in the witness protection program because he
believed that a peer who had been standing near him was trying
to attack him. K.P. expressed a desire to enter the witness
protection program because he was afraid of that peer.
In addition to the above described symptoms of auditory
hallucinations and delusions, K.P. also experienced symptoms of
schizophrenia, such as not being motivated, not being able to
socialize with other people, difficulty speaking, and poverty of
speech.
7
Dr. Mehraban described the recent incident which resulted
in K.P.’s hospitalization. She explained that K.P. believed he had
been intentionally hit with a basketball, pursued an individual
with a pen and was unable to be redirected. Dr. Mehraban
explained that K.P.’s paranoia and fear could be so extreme that
it caused him to act in ways that K.P. believes are self-defense,
but which are not appropriate.
Dr. Mehraban informed the jury of the medications that
K.P. takes for schizophrenia and heightened anxiety. She also
explained her conversation about the medications with K.P., in
which he had been inconsistent about his willingness to continue
if he were to be released from the conservatorship. Dr. Mehraban
was of the opinion that K.P. was not capable of providing for his
basic food, shelter, and clothing without taking the medication.
Nor did she expect he would continue taking the medication
without the supervision of a conservator.
Dr. Mehraban explained “insight” as it relates to a
mentally ill person. K.P. had the basic level of insight, meaning
that he had some understanding that he had symptoms, however,
he “minimizes them and doesn’t really understand where they
come from.” K.P. had suggested at times the symptoms came
from his medications, and that the medications were causing the
symptoms.4 The highest level of insight would be the ability of
an individual to effectively manage his or her symptoms, and
K.P. did not meet that level. K.P. had declined to take his
medications when he was not feeling well, even though he had
____________________________________________________________
4 K.P.’s mother had also expressed to Dr. Mehraban that she
believed K.P.’s medications were causing his hallucinations.
8
been told that taking his medication was “the most important
thing” even when he did not feel well.
Dr. Mehraban had discussed with K.P. his plans if he were
to be released from his conservatorship. He told her that he
wanted to live in an apartment, and that his mother would help
him. To Dr. Mehraban’s knowledge, K.P. had not been to look at
any apartments. Dr. Mehraban did not believe that K.P. had a
viable plan for self-care. In the year and a half that he resided at
the facility, he had never gone into the community without his
mother or his therapist, despite having the opportunity. Dr.
Mehraban was concerned that K.P. would not have anyone for
support, and in her opinion, at this time, he needed constant
supervision. K.P.’s mother had not spoken to Dr. Mehraban
about K.P.’s plans if he were to be released from conservatorship.
Dr. Mehraban was of the opinion that K.P. did not have
sufficient insight to be a voluntary patient, which would involve
making appointments, getting to appointments, and calling the
pharmacy. K.P. had not demonstrated a capacity to manage
these tasks. He had expressed to Dr. Mehraban that he wanted
to get off his medications, and then tended to waffle between
wanting to be on the medications and not wanting to take them.
Dr. Mehraban found this concerning given the importance of the
medications.
On cross-examination Dr. Mehraban agreed that it is
important for a patient to acquire insight regarding medication.
There is no cure for schizophrenia, but the symptoms can be
controlled through treatment. Dr. Mehraban believed that K.P.
was presently telling her he would take his medications because
he would have a secondary gain. She did not believe that he had
insight into his medications. About a month earlier Dr.
9
Mehraban asked K.P. whether he would follow up with treatment
if released. K.P. responded that he would think about it.
On re-direct examination, Dr. Mehraban related an
incident with K.P.’s medication from the previous day. Dr.
Mehraban gave K.P. his medication before he went to court. The
patients are handed their pack of medications, and they are
supposed to know what day it is and how to administer the
medication. Dr. Mehraban was monitoring K.P., and he almost
gave himself a double dose of one of his medications that can
cause toxicity. When Dr. Mehraban stopped him and told him
that he had already taken it, K.P. disagreed.
K.P.
K.P. was asked whether he was willing to stay at his
current placement until he and his mother could find a place for
him. He responded, “no.” When asked the same question a
second time, he responded, “yes.”
K.P.’s counsel asked him, “If you get out of the hospital, are
you willing to continue to take psychiatric medications?” K.P.
responded, “No.” K.P.’s counsel again asked him, “You don’t want
to take medications?” K.P. responded, “No.” K.P. acknowledged
that he needed a psychiatrist. When asked if he thought he had
a mental illness, he responded, “No.” When asked if he had
schizophrenia, K.P. responded, “No.” When asked if he wanted to
continue taking “psych medications,” K.P. responded, “I feel like
I’m doing better without them.” When asked a second time, K.P.
provided the same answer.
On cross-examination, K.P. was asked about the incident
involving the basketball. He described it as an “attack.” He
admitted that he became “outraged.” K.P. repeated that he did
not believe he should take medication anymore. “I’m at a point
10
where I’ve taken them enough -- where I feel like I’ve taken them
enough that I need to stop.” K.P. did not believe that he had
schizophrenia, but that he experienced brain trauma as a child.
K.P. received $800 every month in social security benefits but
nothing else. He indicated that upon his release he intended to
become a businessman. When asked about his previous
experience, K.P. stated that he sold candy in 1995.
When K.P. was asked about his mother, he indicated that
she was previously his conservator. When asked why that ended,
K.P. stated, “I think it’s because she moved away, and she was
homeless.”
Jury instructions/closing arguments
The jury instructions were read but not recorded. The
court gave the following relevant instructions:
“CACI No. 4000. Conservatorship--Essential
Factual Elements
“The Office of the Public Guardian claims that
[K.P.] is gravely disabled due to a mental disorder
and therefore should be placed in a conservatorship.
In a conservatorship, a conservator is appointed to
oversee, under the direction of the court, the care of
persons who are gravely disabled due to a mental
disorder. To succeed on this claim, the Office of the
Public Guardian must prove beyond a reasonable
doubt all of the following:
“1. That [K.P.] has a mental disorder; and
“2. That [K.P.] is gravely disabled as a result of
the mental disorder.”
11
“CACI No. 4002. ‘Gravely Disabled’ Explained
“The term ‘gravely disabled’ means that a
person is presently unable to provide for his or her
basic needs for food, clothing, or shelter because of a
mental disorder.
“Psychosis, bizarre or eccentric behavior,
delusions or hallucination are not enough, by
themselves, to find that [K.P.] is gravely disabled.
He must be unable to provide for the basic needs of
food, clothing, or shelter because of a mental
disorder.
“If you find [K.P.] will not take his prescribed
medication without supervision and that a mental
disorder makes him unable to provide for his basic
needs for food, clothing, or shelter without such
medication, then you may conclude [K.P.] is presently
gravely disabled.
“In determining whether [K.P.] is presently
gravely disabled, you may consider evidence that he
did not take prescribed medication in the past. You
may also consider evidence of his lack of insight into
his mental condition.
“In determining whether [K.P.] is presently
gravely disabled, you may not consider the likelihood
of future deterioration or relapse of a condition.
“In determining whether [K.P.] is presently
gravely disabled, you may consider whether he is
unable or unwilling voluntarily to accept meaningful
treatment.”
12
“CACI No. 4007. Third Party Assistance
“A person is not ‘gravely disabled’ if he can
survive safely with the help of third party assistance.
Third party assistance is the aid of family, friends, or
others who are responsible, willing, and able to help
provide for the person’s basic needs for food, clothing,
or shelter.
“You must not consider offers by family,
friends, or others unless they have testified to or
stated specifically in writing their willingness and
ability to help provide [K.P.] with food, clothing, or
shelter. Well-intended offers of assistance are not
sufficient unless they will ensure the person can
survive safely.”
In closing argument, counsel for the public guardian
reminded the jurors that he had identified three factors that he
would prove beyond a reasonable doubt: first, that K.P. suffers
from a mental disorder; second, that as a result of the mental
disorder, K.P. cannot provide for his basic needs of food, shelter,
and clothing; and finally, that there were no reasonable viable
alternatives to conservatorship for K.P. He added that the public
guardian had shown that K.P. lacked sufficient insight into his
mental disorder, and would not continue to take his prescribed
medications unless he was under a conservatorship. Counsel
then discussed the relevant evidence supporting the position that
these factors had been proven beyond a reasonable doubt.
In his closing argument, K.P.’s counsel argued that the
“third-party assistance” instruction was an important one. He
asked that the jury consider whether K.P. is gravely disabled
given that he could survive with the help of a third party. K.P.’s
counsel also pointed out instruction CACI No. 4002, specifically
13
the language indicating that the jury may consider whether he is
unable or unwilling voluntarily to accept meaningful treatment.
Counsel stated, “currently, he is taking his medication. He is in
his treatment. He does have his mother to assist him if he gets
out so that he can take his medications, follow up with the
doctors.” Counsel argued that K.P. was able to accept meaningful
treatment.
Verdict
On June 22, 2018, the jury found that K.P. was gravely
disabled. The court reappointed the public guardian as
conservator of K.P.’s person and estate.
Appeal
On July 5, 2018, K.P. filed his notice of appeal.
DISCUSSION
K.P. contends that the trial court erred by omitting a third
element from the CACI No. 4000 instruction provided to the jury.
We find no error. We further find that even if instructional error
had occurred, any such error would be harmless under the
circumstances of this case.
I. Standard of review
LPSA proceedings are civil in nature, but individuals
subject to conservatorship proceedings are entitled to certain due
process protections similar to a criminal defendant because
significant liberty interests are at stake. (Conservatorship of P.D.
(2018) 21 Cal.App.5th 1163, 1166-1167 (P.D.).)
We review the propriety of the jury instructions de novo.
(Caldera v. Department of Corrections & Rehabilitation (2018) 25
Cal.App.5th 31, 44-45; P.D., supra, 21 Cal.App.5th at p. 1167.)
“In considering the accuracy or completeness of a jury
14
instruction, we evaluate it in the context of all of the court’s
instructions. [Citation.]” (Caldera, at p. 45.)
II. The instruction was not error
K.P. contends that the trial court failed to properly instruct
the jury with a third element in CACI No. 4000, which would
have required the jury to find, beyond a reasonable doubt, that
K.P. was “unwilling or unable voluntarily to accept meaningful
treatment.”5 The parties have cited and discussed the relevant
case law. Our review of the relevant cases leads us to the
conclusion that the trial court’s instruction was not erroneous.
K.P. points out that the use note to CACI No. 4000 states:
“There is a split of authority as to whether element 3
is required. (Compare Conservatorship of Symington
(1989) 209 Cal. App. 3d 1464, 1467 [‘[Many gravely
disabled individuals are simply beyond treatment’]
with Conservatorship of Davis (1981) 124 Cal. App. 3d
313, 328 [jury should be allowed to consider all
factors that bear on whether person should be on LPS
conservatorship, including willingness to accept
treatment].)”
(Use Note to CACI No. 4000 (Rev. 2006) (2019) p. 964.)
____________________________________________________________
5 The two elements that the trial court included in the
instruction were “1. That [K.P.] [has a mental disorder/is
impaired by chronic alcoholism]; [and] [¶] 2. That [K.P.] is
gravely disabled as a result of the [mental disorder/chronic
alcoholism].” (CACI No. 4000.) The third element, which
K.P. argues should have been included, is: “[3. That [K.P.]
is unwilling or unable voluntarily to accept meaningful
treatment.]” (Ibid.)
15
K.P. argues that this statement is incorrect, and there is no
split of authority. On the contrary, K.P. argues, the law supports
his position that, where there is evidence that the conservatee is
willing and able to voluntarily accept meaningful treatment, the
court must give the third element of CACI No. 4000. In making
this argument, K.P. relies primarily on Conservatorship of Davis
(1981) 124 Cal. App. 3d 313 (Davis).
First, we note that Davis is distinguishable in that it
involved a petition to establish a conservatorship, not a petition
for reappointment. (Davis, supra, 124 Cal.App.3d at p. 317.) The
petition had been filed as to a 39-year-old woman, who had been
married for 18 years. Her husband testified at the trial that he
was willing to have respondent live at his home and she would be
welcome at their family home if she returned to it. (Ibid.) The
woman testified to the jury that she would continue taking her
medication as long as the doctor felt it was necessary. She also
testified to her personal habits of self-care, cooking, and grocery
shopping. (Id. at p. 319.)
The jury was instructed, over the public guardian’s
objection, that “‘[B]efore you may consider whether Mary Davis is
gravely disabled you must first find that she is, as a result of a
mental disorder, unwilling or unable to accept treatment for that
mental disorder on a voluntary basis. If you find that Mary
Davis is capable of understanding her need for treatment for any
mental disorder she may have and capable of making a
meaningful commitment to a plan of treatment of that disorder
she is entitled to a verdict of ‘not gravely disabled.’”’ (Davis,
supra, 124 Cal.App.3d at p. 319.) The jury found her not gravely
disabled. (Id. at p. 317.) The public guardian appealed, arguing
that the trial court erred in delivering this instruction. The
16
Court of Appeal disagreed, finding no prejudicial error. (Id. at
pp. 329, 331.)
In so finding, the Davis court analyzed section 5352, which
provides that when a professional “determines that a person in
his or her care is gravely disabled . . . and is unwilling to accept,
or incapable of accepting, treatment voluntarily, he or she may
recommend conservatorship to the officer providing
conservatorship investigation . . . prior to his or her admission as
a patient in such facility.” Section 5352 is not at issue in the
present appeal, as the petition here is not a petition to establish a
conservatorship. Nor is a conservatorship investigation at issue.
Instead, this was a petition for reappointment.6 Thus, we find
Davis unpersuasive here.
Conservatorship of Early (Early) (1983) 35 Cal. 3d 244, is
also distinguishable. Early, like Davis, involved an initial
conservatorship proceeding, not a reappointment. The primary
issue was whether the conservatee should have been permitted to
introduce evidence that he could meet his needs for food, clothing,
____________________________________________________________
6 K.P. was subject to a reappointment petition pursuant to
section 5361, which provides that “[i]f upon the termination of an
initial or a succeeding period of conservatorship the conservator
determines that conservatorship is still required, he may petition
the superior court for his reappointment as conservator for a
succeeding one-year period.” Section 5361 requires an opinion by
two licensed professionals that “the conservatee is still gravely
disabled as a result of a mental disorder.” (§ 5361; see also
Conservatorship of Dierdre B. (2010) 180 Cal. App. 4th 1306, 1312
[reestablishment of conservatorship requires state “to prove
beyond a reasonable doubt that the conservatee remains gravely
disabled” (italics added)].) Thus, section 5352 would not apply in
this context.
17
and shelter with the assistance of family and friends. (Early, at
p. 249.) No particular jury instructions were analyzed, although
the conservatee also appealed the “failure to instruct that a
person is not gravely disabled if he can meet his basic needs with
the assistance of others.” (Id. at p. 248.) The Early court did not
weigh in on the necessity of including such language in the
instruction setting out the essential factual elements of a
conservatorship. It merely held, in general, that “a jury is
entitled to consider the availability of third party assistance to
meet a proposed conservatee’s basic needs for food, clothing and
shelter.” (Id. at p. 247.) Such consideration was appropriately
made here, with the court permitting evidence, and providing
instruction, on third party assistance. In addition, the court
explicitly instructed the jury, in CACI No. 4002, that in
contemplating the term “gravely disabled,” the jury could
consider the element of willingness and ability to voluntarily
accept meaningful treatment. Thus, Early does not support the
claim of instructional error in this case.
Conservatorship of Walker (1987) 196 Cal. App. 3d 1082
(Walker), involved an erroneous instruction that advised a jury
that conservatorship was inappropriate only if the potential
conservatee “can provide for his needs and is willing to accept
treatment.” (Id. at p. 1092, fn. omitted.) This instruction was
error because “if persons provide for their basic personal needs
(i.e. are not gravely disabled) or are able to voluntarily accept
treatment, there is no need for a conservatorship.” (Ibid.) The
Walker court found the instructional error harmless beyond a
reasonable doubt because the conservatee “admitted he would not
take medication on his own.” Thus, “as a matter of law no jury
could find [the conservatee], on his own or with family help,
18
capable of meeting his basic needs for food, clothing or shelter.”
(Id. at p. 1094.)
We find the analysis in Conservatorship of Symington
(1989) 209 Cal. App. 3d 1464 (Symington), relied upon by the
public guardian, to be persuasive. In Symington, the conservatee
argued that reversal of the finding of grave disability was
required due to the trial court’s failure to make a finding that the
conservatee was unwilling or unable to voluntarily accept
treatment for her mental illness. (Id. at p. 1467.) The Symington
court held that “gravely disabled,” as defined in section 5008,
subdivision (h)(1) is a “‘condition in which a person, as a result of
a mental disorder, is unable to provide for his basic personal
needs for food, clothing, or shelter[.]’” (Symington, at p. 1468.)
The court noted that this definition makes no mention of a
conservatee’s refusal or inability to consent to treatment, and
that the language concerning a proposed conservatee’s refusal or
inability to consent to treatment appeared only in section 5352.
(Symington, at pp. 1467-1468.) The court determined that
section 5352 was enacted to allow treatment facilities to initiate
conservatorship proceedings at the time of admitting a patient
when the patient may be uncooperative. (Symington, at p. 1467.)
The section was not enacted “as an additional element to be
proved to establish the conservatorship itself.” (Ibid.)
We agree with Symington. Section 5352, which allows a
professional to initiate conservatorship proceedings for a patient
that is unwilling to accept treatment, does not add an additional
requirement, to be proved beyond a reasonable doubt, to establish
a conservatorship.
19
Thus, we find that the trial court did not err in instructing
the jury as to the definition of “gravely disabled” in CACI No.
4000.
III. Any error would be harmless
We further find that, even if the trial court had committed
error in its instructions to the jury, any error would be harmless
as a matter of law in this case because the evidence was
overwhelming that K.P. was unwilling or unable to accept
treatment. Specifically, K.P. testified that he did not have a
diagnosed mental disability and did not intend to continue taking
his medications if he were released because he believed he was
better off without them. Thus, K.P. admitted that he was
unwilling or unable to accept appropriate treatment.
The parties point to differing authorities regarding the
standard of prejudice applicable to the instructional error at
issue. The public guardian advocates for the civil standard,
which requires that, to be reversible, any error must result in a
miscarriage of justice. (Adams v. MHC Colony Park, L.P. (2014)
224 Cal. App. 4th 601, 613.)7 In support of the use of this
standard, the public guardian cites Conservatorship of George H.
____________________________________________________________
7 Article VI, section 13 of the California Constitution
provides that “[n]o judgment shall be set aside, or a new trial
granted, in any cause, on the ground of misdirection of the jury
. . . 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.” This
prohibits reversal unless there is “a reasonable probability that
in the absence of the error, a result more favorable to the
appealing party would have been reached. [Citation.]” (Soule v.
General Motors Corp. (1994) 8 Cal. 4th 548, 574.)
20
(2008) 169 Cal. App. 4th 157, 164-165 [“given that LPS
conservatorship proceedings are not criminal proceedings, the
sua sponte duty to instruct . . . does not apply to jury trials under
section 5350”].) K.P., on the other hand, advocates for the
criminal standard of constitutional error, citing Early, supra, 35
Cal. 3d 244 at page 255 [holding that error in conservatorship
proceeding was “not harmless beyond a reasonable doubt”].8
We need not resolve the question of the appropriate
standard of prejudice applicable in this matter. Given K.P.’s
admission that he was unwilling to accept meaningful treatment,
any purported error was harmless under either standard.
(Walker, supra, 196 Cal.App.3d at p. 1094 [holding that where
conservatee admitted he would not take medication, “as a matter
of law no jury could find [the conservatee], on his own or with
family help, capable of meeting his basic needs for food, clothing
or shelter”].)
____________________________________________________________
8 The requirement in criminal cases that constitutional error
be found harmless beyond a reasonable doubt was set forth in
Chapman v. California (1967) 386 U.S. 18, 24 [“before a
. . . constitutional error can be held harmless, the court must be
able to declare a belief that it was harmless beyond a reasonable
doubt”].)
21
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
LUI
__________________________, J.
ASHMANN-GERST
22