Conservatorship of C.O. ( 2021 )

Filed 11/18/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
Conservatorship of the Person of C.O. H047087
__________________________________ (Santa Clara County
Super. Ct. No. 1-95-MH-032662)
MARY ANN WARREN, as Public
Guardian, etc.,
Petitioner and Respondent,
v.
C.O.,
Objector and Appellant.
Following a court trial, the trial court found objector and appellant C.O.1 to be
gravely disabled within the meaning of the Lanterman-Petris-Short Act (LPS Act)
(Welf. & Inst. Code, § 5000 et seq.2). The court reappointed the Santa Clara County
Public Guardian (public guardian) as C.O.’s conservator. On appeal from that judgment,
C.O. contends the trial court prejudicially erred when it failed to advise him on the record
of his right to a jury trial and did not obtain from him a personal waiver of that right.
C.O. asserts the trial court erred under the LPS Act, as well as violated his constitutional
1
We refer to appellant by his initials to protect his privacy interests. (Cal. Rules
of Court, rule 8.90(b)(2).)
2
Unspecified statutory references are to the Welfare and Institutions Code.
rights to due process and equal protection. For the reasons explained below, we affirm
the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
Prior to the events at issue in this appeal, C.O. had been placed under an LPS
conservatorship with the public guardian as conservator.3 On March 8, 2019, the public
guardian petitioned for reappointment as LPS conservator for C.O., alleging he was still
gravely disabled and, as the result of a mental disorder, unable to provide for his own
basic needs for food, clothing, or shelter. (§ 5008, subd. (h)(1)(A).)
The trial court issued a written citation for conservatorship (§ 5350;
Prob. Code, § 1823), which was served on C.O. The written citation ordered C.O. to
appear at a hearing on April 25, 2019, and stated, inter alia: “You have the right to a
court or jury trial on the issue of grave disability. The request for a jury trial must be
made within five days of the hearing.” C.O. did not request a jury trial.
On April 25, 2019, the trial court held an initial hearing on a number of
conservatorship matters, including the public guardian’s reappointment petition for C.O.
C.O. was represented by appointed counsel from the public defender’s office. Before
C.O. was personally present in the courtroom, C.O.’s attorney stated to the trial court: “I
have spoken to all of my clients, have informed them of their right to be present, the right
to have a court — a jury trial, a court trial, or a summary hearing. And unless otherwise
stated, they’ve waived these rights.”
C.O.’s attorney informed the trial court he would get C.O., who was “right
outside.” Once C.O. was in the courtroom, his attorney stated (in C.O.’s presence):
“Your Honor, I’ve had a chance to speak with [C.O.] a couple of times before today’s
court hearing. And at this time [C.O.] is requesting a court trial. It looks like we have
3
It is not clear from the record when C.O. was first placed under a
conservatorship. As the underlying details of the petition about C.O.’s mental illness are
not material to our analysis, we do not recount them here.
2
discussed the possibility of doing that on May 23rd [2019]. And that would be our
request.” The trial court set the matter for a court trial.
The trial court did not advise C.O. on the record of his right to a jury trial or elicit
a personal waiver of that right from him. Neither C.O. nor his attorney requested a jury
trial.
The trial court conducted the court trial approximately one month later. Neither
C.O. nor his attorney at any point during the trial requested a jury trial, and neither
objected to the court trial. The public guardian presented two witnesses, an expert
psychologist who had interviewed C.O. and C.O. himself. C.O.’s attorney cross-
examined both the expert and C.O. At the conclusion of the court trial, the trial court
stated that it found “beyond a reasonable doubt, that [C.O.] has both been advised in
writ[]ing of his right to a jury trial [and] that he remains a gravel[]y disabled person under
Welfare and Institutions Code Section 5008[, subdivision] (H)(1)(A).” The trial court
granted the LPS petition for reappointment and found by “clear and convincing evidence
that [C.O.] [was] unable to understand the risks and benefits of an alternative to medical
treatment related to his grave disability.”4
C.O. timely appealed the May 23, 2019 judgment.
II. DISCUSSION
C.O. contends the trial court violated his statutory rights, as well as his
constitutional rights to due process and equal protection, by failing to advise him on the
record of his jury trial right and by failing to take a personal waiver of those rights. He
argues that these errors require automatic reversal of the judgment. The public guardian
contends no error occurred and observes the appeal is moot. The public guardian
furthermore claims C.O. forfeited his constitutional challenges by failing to raise them
below. We first turn to the questions of mootness and forfeiture.
4
C.O. does not challenge on appeal the trial court’s finding of grave disability.
3
A. Mootness
Pursuant to section 5361, the conservatorship order at issue automatically expired
in May 2020. (See Conservatorship of John L. (2010) 48 Cal.4th 131, 152 (John L.).)
C.O. acknowledges that the LPS conservatorship at issue here expired by operation of
law but argues this court should not dismiss his appeal as moot.
When a challenged conservatorship has ended, the appeal of that conservatorship
is “technically moot.” (See Conservatorship of K.P. (2021) 11 Cal.5th 695, 705, fn. 3
(K.P.).) Nevertheless, a reviewing court has the discretion to decide an otherwise moot
case if “ ‘it raises important issues that are capable of repetition but likely to evade
review.’ ” (John L., supra, 48 Cal.4th at p. 142, fn. 2; see also Conservatorship of
George H. (2008) 169 Cal.App.4th 157, 161, fn. 2.) We decide this standard is met here
and decline to dismiss the appeal as moot.
B Forfeiture
The public guardian argues C.O. forfeited his jury trial claims because he failed to
raise them in the trial court and fully participated in the court trial. C.O. acknowledges,
and the record before us supports, that neither he nor his appointed trial counsel presented
to the trial court the claims he now asserts.
As a general rule, “a party may forfeit [the] right to present a claim of error to the
appellate court if he did not do enough to ‘prevent[]’ or ‘correct[]’ the claimed error in
the trial court.” (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) The forfeiture
doctrine is not absolute, however, as we are “generally not prohibited from reaching a
question that has not been preserved for review by a party.” (Ibid.)
We elect to decide the merits of C.O.’s claims. There are no disputed facts at
issue and the parties agree, as do we, that our review of his claims are de novo (see part
II.C.1., post). Under these circumstances, we exercise our discretion to address the
4
merits, notwithstanding C.O.’s failure to raise the claims in the trial court. (See
Conservatorship of Bryan S. (2019) 42 Cal.App.5th 190, 194 (Bryan S.).)5
C. The LPS Act
1. Standard of Review
The statutory and constitutional claims presented here are legal issues subject to de
novo review. “To determine whether the superior court violated the LPS Act . . . we
must first find what the Act requires. In construing the Act, our goal is to ascertain and
effectuate the Legislature’s intent.” (John L., supra, 48 Cal.4th at p. 143.) “We consider
individual statutes in the context of the entire Act so that each part may be harmonized
and given effect.” (K.P., supra, 11 Cal.5th at p. 706.)
2. Statutory Provisions
The LPS Act, enacted in 1967, “governs the involuntary treatment of the mentally
ill in California.” (Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1008.) The act
“provides one-year conservatorships for those ‘gravely disabled as a result of a mental
health disorder or impairment by chronic alcoholism.’ (§ 5350.)” (K.P., supra, 11
Cal.5th at p. 703.)
Section 5350 addresses the procedure for establishing an LPS conservatorship. It
states in relevant part: “The procedure for establishing, administering, and terminating a
conservatorship under this chapter shall be the same as that provided in Division 4
(commencing with Section 1400) of the Probate Code, except as follows: [¶] . . . [¶]
(d)(1) The person for whom conservatorship is sought shall have the right to demand a
court or jury trial on the issue of whether he or she is gravely disabled. Demand for court
or jury trial shall be made within five days following the hearing on the conservatorship
5
As we do not decide this appeal on forfeiture grounds, we need not address
appellant’s alternative claim of ineffective assistance of counsel. (See Conservatorship
of David L. (2008) 164 Cal.App.4th 701, 710 [proposed conservatees in LPS Act
proceedings are entitled to effective assistance of counsel].)
5
petition. If the proposed conservatee demands a court or jury trial before the date of the
hearing as provided for in Section 5365, the demand shall constitute a waiver of the
hearing. [¶] (2) Court or jury trial shall commence within 10 days of the date of the
demand . . . . [¶] (3) This right shall also apply in subsequent proceedings to reestablish
conservatorship.” (§ 5350.)
Division 4 of the Probate Code–incorporated by reference into section 5350–
includes Probate Code section 1828. That statute provides in relevant part “before the
establishment of a conservatorship of the person or estate, or both, the court shall inform
the proposed conservatee of . . . [¶] . . . [¶] . . . the right . . . to have the matter of the
establishment of the conservatorship tried by jury.” (Prob. Code, § 1828, subd. (a)(6)
(hereafter Prob. Code, § 1828(a)(6).) Additionally, the trial court must “[a]fter the court
so informs the proposed conservatee . . ., consult the proposed conservatee to determine
the proposed conservatee’s opinion” regarding “[t]he establishment of the
conservatorship.” (Prob. Code, § 1828, subd. (b)(1).)
A hearing to reestablish a conservatorship is largely conducted according to the
same rules that govern the initial establishment of a conservatorship. “ ‘The
conservatorship may be reestablished in summary fashion at an initial court hearing, or,
upon request within five days of the initial hearing, through a full court or jury trial.
(§§ 5350, subd. (d), 5365, 5362, subd. (b); [citations].)’ ” (Conservatorship of Joseph W.
(2011) 199 Cal.App.4th 953, 962, italics omitted.) However, unlike the procedure for
determining an initial conservatorship petition, the trial court is not statutorily required to
conduct a hearing to reestablish a conservatorship. The trial court may on its own motion
accept or reject the reestablishment petition without first holding a hearing if the
proposed conservatee does not request either a hearing or a trial. (Id. at p. 965, fn.7;
§ 5362, subd. (b).)
6
3. Case Law
A number of courts, including this one, have concluded that in LPS proceedings a
conservatee’s counsel may waive the conservatee’s right to jury trial. In Conservatorship
of Maldonado (1985) 173 Cal.App.3d 144 (Maldonado) a panel of this court held that
counsel had the authority to waive a proposed conservatee’s right to jury trial, and the
trial court was not obligated to obtain a personal waiver from the proposed conservatee.
(Id. at p. 148.) This court decided that “civil procedural law determines whether an
individual has waived the right to a jury trial in a conservatorship proceeding” and, more
specifically, applied the civil procedure code provision stating a “jury may be waived
‘[b]y oral consent, in open court, entered in the minutes or docket.’ ” (Ibid.) The court
stated that “an attorney has authority to bind his client in any of the steps of an action or
proceeding by his agreement entered upon the minutes of the court. (Code Civ. Proc.,
§ 283.)” (Ibid.)
Similarly, in Conservatorship of Mary K. (1991) 234 Cal.App.3d 265 (Mary K.),
the Fifth District Court of Appeal held that counsel may waive a proposed conservatee’s
right to jury trial and concluded “an on-the-record personal waiver of a jury trial is not
required from the proposed conservatee.” (Id. at p. 271.) In Mary K., the proposed
conservatee’s counsel requested a court trial and “counsel stated he had spoken with his
client and she wished to waive a jury trial.” (Id. at pp. 267, 271)
The California Supreme Court in John L. cited with approval both Maldonado and
Mary K. in concluding the trial court in that case had not violated the LPS Act or due
process when it proceeded with a hearing establishing a conservatorship after the
conservatee’s counsel waived his client’s presence. (John. L., supra, 48 Cal.4th at
pp. 147–149, 156.)
In reaching its decision in John L., the California Supreme Court emphasized the
civil nature of an LPS proceeding. “In providing that the procedure set forth in division 4
of the Probate Code shall apply in establishing LPS conservatorships absent a statutory
7
conflict, Welfare and Institutions Code section 5350 plainly requires the operation of
Probate Code section 1827, which provides in full: ‘The court shall hear and determine
the matter of the establishment of the conservatorship according to the law and
procedure relating to the trial of civil actions, including trial by jury if demanded by the
proposed conservatee.’ (Italics added.) While proceedings under the LPS Act are
already commonly viewed as being civil in nature [citation], Probate Code section 1827
makes it all the more clear that the laws of civil procedure apply in LPS conservatorship
proceedings.” (John. L., supra, 48 Cal.4th at p. 147.)
The court in John L. stated, “[w]hen a statutory right in a civil commitment
scheme is at issue, the proposed conservatee may waive the right through counsel if no
statutory prohibition exists” and decided that the attorney could therefore waive the
proposed conservatee’s presence at the hearing on the matter of the establishment of the
conservatorship. (John. L., supra, 48 Cal.4th at p. 148.) It reasoned 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.)
In 2015, the California Supreme Court decided the companion cases of People v.
Tran (2015) 61 Cal.4th 1160 (Tran) and People v. Blackburn (2015) 61 Cal.4th 1113(Blackburn). These decisions addressed the procedure for jury trial advisements and jury
trial waivers in civil commitment proceedings under the Mentally Disordered Offender
Act [MDO] (Pen. Code, § 2960 et seq.) and for extending the involuntary commitment of
a person originally committed after pleading not guilty by reason of insanity (NGI) (id.,
§ 1026 et seq.). Based upon the express language of the relevant statutes, the California
Supreme Court held that in both cases a trial court must provide on the record an
advisement of the right to a jury trial and must secure a personal waiver of the right to a
jury trial (absent substantial evidence of incapacity) from the committed person.
(Blackburn, at pp. 1117, 1121, 1124; Tran, at pp. 1163, 1165, 1166.)
8
For example, in Blackburn the California Supreme Court relied upon the fact that
“the statutory scheme that governs MDO commitment proceedings expressly provides for
advisement and waiver of the right to a jury trial.” (Blackburn, supra, 61 Cal.4th at
pp. 1121–1122.) For commitment of an individual as an MDO following termination of
parole, the statute requires “[t]he court shall advise the person of his or her right to be
represented by an attorney and of the right to a jury trial” (id. at p. 1122, italics omitted)
and “[t]he trial shall be by jury unless waived by both the person and the district
attorney.” (Ibid.)
Blackburn and Tran did not address LPS proceedings. Moreover, in contrast to its
characterization of the LPS scheme in John L. as “civil in nature” (John. L., supra, 48
Cal.4th at p. 147), in Blackburn and Tran the California Supreme Court emphasized the
numerous criminal procedural protections in both the MDO and NGI statutory schemes.
(See Blackburn, supra, 61 Cal.4th at p. 1120 [“The MDO commitment scheme has thus
been described as ‘something of a hybrid, a civil hearing with criminal procedural
protections’ ”]; Tran, supra, 61 Cal.4th at p. 1165 [“The [NGI] statute, as enacted, set
forth several procedural protections generally available only in the criminal context”].)
A handful of subsequent appellate decisions have extended the analysis in
Blackburn and Tran to LPS proceedings, notwithstanding (as discussed further below)
significant differences between the statutes governing LPS proceedings and those
applicable to MDO and NGI determinations. (See Conservatorship of Heather W. (2016)
245 Cal.App.4th 378, 381 (Heather W.); Conservatorship of Kevin A. (2015) 240
Cal.App.4th 1241, 1244 (Kevin A.).)
Notably, in Heather W., the Second District Court of Appeal, Division 6, held, “In
conservatorship proceedings pursuant to the LPS Act, the trial court must obtain a
personal waiver of a jury trial from the conservatee, even when the conservatee expresses
no preference for a jury trial. Absent such a waiver, the court must accord the
conservatee a jury trial unless the court finds the conservatee lacks the capacity to make
9
such a decision.” (Heather W., supra, 245 Cal.App.4th at p. 381.) In reaching this
decision, Heather W. did not specifically examine the applicable jury or court trial
demand language of the LPS Act or compare it to the statutory language at issue in Tran
and Blackburn.
D. Analysis
To support his statutory claim that the judgment must be reversed, C.O. relies on
Probate Code section 1828(a)(6) and Heather W., as well as the California Supreme
Court’s decisions of Tran and Blackburn. He asserts these authorities required the trial
court to advise him of his right to a jury trial and obtain a personal waiver of his right to a
jury trial.
It is undisputed that C.O.’s attorney had consulted with him about his trial rights,
and C.O. had elected a court trial. It is also undisputed that C.O. was present in court
when his attorney informed the court that C.O. wished to proceed by court trial, and C.O.
participated fully in the trial without objection, including as a witness. We first examine
whether the trial court erred in failing to personally advise C.O. of his jury trial right and
then turn to the issue of waiver.
1. Jury Trial Advisement
C.O. contends, and we agree, that the language of Probate Code section 1828(a)(6)
requires a trial court to personally advise a proposed conservatee of his jury trial right.
The LPS Act incorporates this provision of the Probate Code, which reads, “the court
shall inform the proposed conservatee of . . . [¶] . . . [¶] . . . the right . . . to have the
matter of the establishment of the conservatorship tried by jury.” (Prob. Code,
§ 1828(a)(6).)
This statutory language is very similar, though not identical, to the advisement
provisions at issue in Tran and Blackburn. (See, e.g., Blackburn, supra, 61 Cal.4th at
p. 1123.) In Blackburn, the provision stated, “ ‘The court shall advise the person of his or
her right to be represented by an attorney and of the right to a jury trial.’ ” (Ibid.) The
10
California Supreme Court described this language as “unambiguous” and held that the
trial court “must make this advisement to ‘the person,’ not to his or her attorney.” (Ibid.)
As the California Supreme Court observed in Blackburn: “The Legislature saw fit
to include the statutory provision requiring an advisement even though MDO defendants
are often represented by counsel and even though counsel is presumed to know the
defendant’s rights and is obligated to advise the defendant accordingly. The meaning of
the provision is clear. . . . ‘[i]t reflects a legislative intent to judicially ensure that “the
person” knows that he or she has the right to a jury trial.’ ” (Blackburn, supra, 61 Cal.4th
at p. 1124.) Based on the similar language in Probate Code section 1828(a)(6), we hold
that this provision requires the trial court to directly advise the proposed LPS conservatee
on the record in a court proceeding of his or her right to have the matter of the
establishment or reestablishment of the conservatorship decided by trial by jury.
The public guardian points out that, although the trial court did not directly advise
C.O. of his right to jury trial, C.O. was nevertheless “advised of his right to a jury trial by
service of a citation and by his court-appointed counsel, and he waived that right through
counsel.” We are not convinced these actions fulfill the statutory requirement that “the
court shall inform the proposed conservatee” of the right to have the matter of the
establishment or reestablishment of the conservatorship tried by jury. (Prob. Code,
§ 1828(a)(6), italics added.) Taking guidance from the California Supreme Court in
Blackburn, we conclude this language reflects a legislative intent to “judicially ensure”
the proposed conservatee has knowledge of his or her right to a jury trial. (See
Blackburn, supra, 61 Cal.4th at p. 1124.)
Probate Code section 1823 requires that the clerk serve a citation that includes,
among other information, that “the proposed conservatee has the right to a jury trial if
desired.” (Prob. Code, § 1823, subd. (b)(7).) However, there is no indication in Probate
Code section 1828 that the clerk’s provision of the written citation satisfies the separate
procedural safeguard afforded by section 1828(a)(6), that the court “shall inform the
11
proposed conservatee of . . . [¶] . . . [¶] . . . the right . . . to have the matter of the
establishment of the conservatorship tried by jury.” (Prob. Code, §1828(a)(6).)
Based on the language of section 5350 and Probate Code section 1828(a)(6), we
therefore decide that where, as here, the proposed conservatee is able to and willing to
attend the hearing (cf. Prob. Code, § 1825), the trial court must directly advise a proposed
conservatee of his or her right to a jury trial over the matter of the establishment or
reestablishment of the conservatorship. The trial court’s failure to do so here was
statutory error.
Before considering whether that advisement error requires reversal of the
judgment, we address whether the trial court erred in accepting counsel’s waiver of
C.O.’s right to jury trial.
2. Waiver of the Right to Jury Trial
C.O. also contends the trial court was statutorily required to obtain from him a
personal waiver of his right to jury trial, and the trial court erred by relying upon the
waiver by his counsel. But C.O. does not point to language in any of the relevant statutes
addressing waiver of the jury trial right, and our independent research has not identified
any.6
Section 5350, which sets forth the procedures specific to establishment of an LPS
conservatorship, does reference waiver but not with respect to the right to jury trial. It
states, “The person for whom conservatorship is sought shall have the right to demand a
court or jury trial on the issue of whether he or she is gravely disabled. Demand for court
or jury trial shall be made within five days following the hearing on the conservatorship
petition. If the proposed conservatee demands a court or jury trial before the date of the
6
At oral argument in this matter, counsel for C.O. agreed that the LPS statutes do
not reference waiver of jury trial. C.O.’s appellate counsel conceded that the trial court
would have had the authority to accept the jury waiver from counsel had the trial court
personally advised C.O. of his right to jury trial. C.O. maintains that the trial court’s
failure to do so here was structural error requiring reversal.
12
hearing as provided for in Section 5365, the demand shall constitute a waiver of the
hearing.” (§ 5350, subd. (d)(1), italics added.) The reference to waiver of the right to a
hearing on the conservatorship petition, and the omission of any similar language with
respect to the right to jury trial, highlights that the Legislature knew how to set out
specific conditions of waiver in the LPS scheme but chose not to do so for the right to
jury trial.
As described above in our discussion of the jury trial advisement, Probate Code
section 1828, which specifies what information the court must provide for proposed
conservatees, is incorporated by reference into section 5350. Probate Code section 1828
similarly does not reference waiver. Indeed, “[t]he Probate Code does not require a jury
trial or an express waiver of a jury.” (Conservatorship of B.C. (2016) 6 Cal.App.5th
1028, 1035 (B.C.).)
We recognize that Probate Code section 1828, subdivision (b)(1), provides that
“[a]fter the court so informs the proposed conservatee and before the establishment of the
conservatorship, the court shall consult the proposed conservatee to determine the
proposed conservatee’s opinion concerning . . . . [¶] (1) The establishment of the
conservatorship.” However, a requirement that the court “consult” with the proposed
conservatee for his or her “opinion” about the conservatorship does not equate to the
distinctly different concept of waiver. (Prob. Code, §1828, subd. (b).) The Second
District Court of Appeal, Division 6, has rejected the claim that the reference to “consult”
in Probate Code section 1828 requires any act other than the communication of the
proposed conservatee’s sentiments to the court by the attorney. (B.C., supra, 6
Cal.App.5th at p. 1036.)
C.O. does not assert any deficiency in the failure to communicate C.O.’s
sentiments to the court, and we see no evidence of any in the record. C.O. informed the
court, through his counsel, that he wished to have the matter of his conservatorship
13
decided by court trial. In response, the court conducted a court trial, in accordance with
C.O.’s expressed preference.
Based upon the absence of any specific language referencing waiver in either
section 5350 or the applicable Probate Code provisions, we adhere to our prior
conclusion in Maldonado, supra, 173 Cal.App.3d at p. 148. We hold that (absent
circumstances suggesting the proposed conservatee’s counsel lacked actual authority,
counsel disregarded his client’s wishes, or that the proposed conservatee was actually
unaware of his right to a trial by jury) counsel may waive on behalf of the proposed
conservatee his or her right to have the matter of establishment or reestablishment of the
conservatorship decided by jury trial.
Our reading of the LPS statutes is bolstered by the analysis of the California
Supreme Court in Tran and Blackburn. The statutory schemes examined in those cases
included express waiver provisions, which the court repeatedly emphasized in both
decisions. In Blackburn, for instance, the statute provided “ ‘The trial shall be by jury
unless waived by both the person and the district attorney.’ ([Pen. Code,] § 2972[,]
[subd.](a).)” (Blackburn, supra, 61 Cal.4th p. 1124, italics added.) Contrasting the
statutory scheme for MDO proceedings with those for competency hearings (which the
California Supreme Court had previously held do not require a personal waiver of the
right to jury trial), the court observed “the statutory scheme that governs MDO
commitment proceedings expressly provides for advisement and waiver of the right to a
jury trial.” (Id. at pp. 1121–1122, italics added.)
Similarly, in Tran, the California Supreme Court observed: “In this case, we
address the meaning of nearly identical language in the statutory scheme for extending
the involuntary commitment of a person originally committed after pleading not guilty by
reason of insanity (NGI) to a criminal offense. The NGI statute provides that in a
commitment extension proceeding, ‘the court shall advise the person named in the
petition of the right to be represented by an attorney and of the right to a jury trial’ (Pen.
14
Code[,] § 1026.5, subd. (b)(3)), and ‘[t]he trial shall be by jury unless waived by both the
person and the prosecuting attorney’ (id., § 1026.5, subd. (b)(4)).” (Tran, supra, 61
Cal.4th at p. 1163, italics added.) The court held “this language has the same meaning as
the parallel language in the MDO statute.” (Ibid.)
The California Supreme Court highlighted the importance of the use of the same
language in the two statutory schemes. “In light of our interpretation of the MDO
advisement and waiver provisions in Blackburn, we could hardly reach a different
interpretation of the NGI advisement and waiver provisions. ‘ “It is an established rule of
statutory construction that similar statutes should be construed in light of one another
[citations] and that when statutes are in pari materia similar phrases appearing in each
should be given like meanings.” ’ ” (Tran, supra, 61 Cal.4th at pp. 1167–1168.) Thus, it
was significant to the court that the MDO and NGI regimes used the same language of
waiver. But it is equally important in our view that the LPS statutory scheme does not
reference jury trial waiver at all.
The LPS statute and the statutory schemes examined in Tran and Blackburn
exhibit other significant differences. In both the MDO and NGI contexts, the statutes
provide that the default procedure is by jury trial. In Blackburn, for example, the
California Supreme Court described the MDO commitment scheme as “best understood
as ‘a civil hearing with criminal procedural protections’ [citation], and we find it
significant . . . that the Legislature set forth protections in section 2972 that are borrowed
directly from the criminal context. In an MDO commitment proceeding, as in a criminal
trial, the ‘jury guarantee’ is a basic protection.” (Blackburn, supra, 61 Cal.4th
at pp. 1134–1135.) Similarly, the California Supreme Court said of the NGI procedures,
they require the trial court “to obtain a waiver from ‘the person’ ”and “[t]he statute [Penal
Code section 1026.5, subdivision (b)(4)] does not require the defendant to affirmatively
show he or she wanted a jury trial; a jury trial is the default procedure absent a personal
waiver.” (Tran, supra, 61 Cal.4th at p. 1169.)
15
By contrast, the language of the LPS Act does not reflect a preference for jury
trials over court trials. Rather than making a jury trial the default procedure, section 5350
states a proposed conservatee has the right to demand “a court or jury trial on the issue of
whether he or she is gravely disabled.” (§ 5350, subd. (d)(1), italics added.) Section
5362, subdivision (b), which addresses petitions to reestablish a conservatorship, requires
a “court hearing or jury trial” to be the subject of a “request.” (§ 5362, subd. (b).) If no
request is made for a court hearing or jury trial, the judge “may, on his or her own
motion, accept or reject the conservator’s petition.” (Ibid.) This provision further
highlights that jury trial is not the default mechanism for reestablishment of a
conservatorship. In short, we see no basis in the language of the LPS Act for a
requirement that the trial court obtain a personal waiver of jury trial from the proposed
conservatee when, as here, that conservatee’s attorney has spoken with the conservatee,
has so informed the court, and waived jury on his behalf.
In our view, the facts here are similar to those in Mary K. in which the Fifth
District Court of Appeal held that counsel may waive a proposed conservatee’s right to
jury trial where “counsel stated he had spoken with his client and she wished to waive a
jury trial.” (Mary K., supra, 234 Cal.App.3d at p. 2717; cf. Kevin A., supra, 240
Cal.App.4th at p. 1244 [holding that the trial court erred in accepting a waiver of jury
trial over proposed conservatee’s objection].) As in Mary K., C.O. does not contend his
appointed attorney acted against his wishes when he waived the right to jury trial. (Mary
K., at p. 271.) Heather W. is distinguishable because there was no indication in the trial
court proceedings in that case of the proposed conservatee’s wishes or any evidence that
the conservatee’s attorney had consulted with the conservatee. (Heather W., supra, 245
Cal.App.4th at pp. 381, 384.)
7
The Court of Appeal in Mary K. also examined whether counsel may waive a
conservatee’s right to advisement of the right to jury trial—an issue not raised in this
appeal. (See Mary K., supra, 234 Cal.App.3d at pp. 271–272.)
16
In deciding that the trial court did not err in taking the jury trial waiver from
counsel rather than C.O., we emphasize that there is no evidence in the record that C.O.
desired a jury trial, that C.O. was actually unaware of his right to jury trial, or that his
attorney elected to proceed with a court trial over C.O.’s objection. We need not reach
the question of whether C.O.’s counsel would have had that authority. (See Kevin A.,
supra, 240 Cal.App.4th at p. 1251 [holding that the trial court erred by accepted counsel’s
waiver of the right to jury trial where the conservatee himself on the record requested a
“ ‘full jury trial’ ”]; see also Blackburn, supra, 61 Cal.4th at p. 1125 [“If the Legislature
had intended to allow counsel to waive a jury trial notwithstanding the defendant’s
wishes, it would not have needed to require the trial court to expressly advise the
defendant.”].) On the record here, we decide the trial court did not violate C.O.’s
statutory rights when it accepted counsel’s waiver of C.O.’s right to jury trial before
conducting a court trial on the matter of the reestablishment of his LPS conservatorship.
E. Constitutional Claims
C.O. also asserts that the trial court was required under principles of due process
and equal protection to elicit a personal waiver on the record of his right to jury trial.
1. Due Process
C.O. contends the trial court’s failure to obtain a personal waiver violated his due
process rights. He relies on, inter alia, Conservatorship of Roulet (1979) 23 Cal.3d 219,
in which the California Supreme Court held under the due process clause of the
California Constitution that the state must prove a person is gravely disabled beyond a
reasonable doubt and, when the proposed conservatee demands a jury trial, the jury’s
finding must be unanimous. (Id. at p. 235.)
There is no doubt that the liberty interest at stake in conservatorship proceedings
“implicates due process concerns.” (K.P., supra, 11 Cal.5th at p. 717.) Nevertheless,
consistent with prior precedent from this court, we do not agree that a trial court’s failure
to obtain a personal waiver on the record of the proposed conservatee’s right to a jury
17
trial violates a constitutional due process right. (Maldonado, supra, 173 Cal.App.3d at
pp. 147–148.)
This conclusion is bolstered by the due process analysis of the California Supreme
Court in John L. (John L., supra, 48 Cal.4th at pp. 149–156.) In that case, the court
observed that an LPS commitment does not require all the procedural safeguards afforded
in criminal proceedings: “As much as the private interests at stake are weighty and
deserving of protection, the stated purposes of the LPS Act foreclose any argument that
an LPS commitment is equivalent to criminal punishment in its design or purpose.
Because of their differing objectives, ‘the analogy between criminal proceedings and
proceedings under the LPS Act is imperfect at best and . . . not all of the safeguards
required in the former are appropriate to the latter.’ ” (Id. at p. 151.)
Our high court further recognized that “because the private interests implicated in
an LPS conservatorship are significant, ‘several layers of important protections’ have
been built into” the LPS conservatorship system to guard against erroneous conclusions.
John L., supra, 48 Cal.4th at p. 151.) Those protections include the right to demand a
court or jury trial under section 5350, the right to court-appointed counsel for the
proposed conservatee, and “prompt remedial relief” after a conservatorship has been
established, such as the automatic termination after one year of the conservatorship
(§ 5361) and the conservatee’s right during the one-year period of the LPS
conservatorship to twice petition for rehearing as to his status as a conservatee (§ 5364).
(John L., at pp. 151–152.)
The California Supreme Court concluded that no deprivation of due process
occurred in John L., stating: “When we consider the combination of due process
protections that have been built or read into the LPS Act, including the prehearing notice
and counsel requirements and the requirement for a comprehensive conservatorship
investigation report, as well as the familiar duties imposed on counsel in the
representation of LPS clients and the availability of remedies after a conservatorship is in
18
place, we have no difficulty concluding that these numerous checks sufficiently guard
against the risk of erroneous conservatorship decisions, without the need to impose
additional waiver-related requirements. Accordingly, a superior court may properly find
a waiver of presence and trial rights when informed by the attorney that the proposed
conservatee does not want to attend the hearing to establish the LPS conservatorship and
does not oppose the conservatorship. Whether the proposed conservatee has knowingly
and intelligently waived his presence and trial rights is a question of fact; it may not be
presumed that a person found gravely disabled, or one who has been evaluated or treated
for a mental disorder, is incompetent to waive such rights.” (John L., supra, 48 Cal.4th at
p. 154.)
On this record, we similarly decide substantial evidence supports the trial court’s
implicit conclusion that C.O. knowingly and intelligently waived his right to a jury trial.
C.O. was present at both the April 25, 2019 hearing and the court trial in May 2019, and
there is no indication in the record that he disagreed with the decision to have his
conservatorship decided by court trial or that he demanded a jury trial instead of a court
trial. There is also no evidence or suggestion in the record that C.O. did not comprehend
what his appointed counsel was representing to the trial court on his behalf at the April
25, 2019 trial setting hearing. To the contrary, the record reflects that counsel had spoken
with C.O. several times and he consented to a court trial, and there is no evidence C.O.
lacked an understanding of those communications. Indeed, C.O. was present with his
counsel and had greeted the court when his counsel informed the trial court C.O. wanted
a “court trial.” As noted above, even if mentally ill, we may not simply presume C.O.
was incompetent. (John L., supra, 48 Cal.4th at p. 154.) Based on the totality of the
circumstances here, we perceive no basis upon which to conclude that the trial court’s
failure to elicit his personal waiver here on the record resulted in an unfair hearing.
C.O. seeks to distinguish John L. on the ground that C.O. was present at the April
25, 2019 hearing, and John L. was decided before Tran and Blackburn. While it is true
19
the California Supreme Court did not, in John L., address specifically the situation when
a proposed LPS conservatee is present (in that case, the conservatee was absent), we view
this as a distinction without a difference. As a matter of logic, we see no reason to
conclude that an attorney could waive a proposed conservatee’s presence altogether but
could not waive the conservatee’s right to request a jury trial in lieu of a court trial.
We recognize that a number of courts have concluded that a trial court in an LPS
proceeding must obtain a waiver from the conservatee about the right to a jury trial. We
respectfully disagree with Heather W. to the extent it applied Roulet to hold that
principles of constitutional due process under the California constitution require “a trial
court [to] obtain a waiver of the right to a jury trial from the person who is subject to an
LPS commitment.” (Heather W., supra, 245 Cal.App.4th at p. 383.) For the reasons
stated above in our discussion of the statutory differences between LPS proceedings and
NGI and MDO determination, we do not agree that Blackburn and Tran dictate the
constitutional analysis here.
Finally, while C.O. vaguely references his federal rights to due process, he does
not provide any case law supporting that right in this context. Based on the lack of
relevant authority, C.O. has not demonstrated that the procedure here violated his federal
constitutional right to due process.
2. Equal Protection
C.O. also asserts the trial court violated his equal protection rights under the
California Constitution and United States Constitution. (U.S. Const., 14th Amend.; Cal.
Const., art. I, § 7, subd. (a).) He contends he is “similarly situated” to a defendant who is
subject to a NGI or MDO proceeding and therefore the trial court was constitutionally
obligated to secure a personal waiver of jury trial from him because “[t]he common
denominator is that the individuals all suffer from a treatable mental illness and all three
statutory schemes operate under the belief that treatment is one of the underlying goals.”
We conclude his claims lack merit.
20
“ ‘ “The concept of the equal protection of the laws compels recognition of the
proposition that persons similarly situated with respect to the legitimate purpose of the
law receive like treatment.” ’ [Citation.] The initial inquiry in any equal protection
analysis is whether persons are ‘similarly situated for purposes of the law challenged.’ ”
(In re Lemanuel C. (2007) 41 Cal.4th 33, 47.) “Where two or more groups are properly
distinguishable for purposes of the challenged law, it is immaterial if they are
indistinguishable in other respects. [Citation.] Nor, absent this threshold requirement, is
an equal protection inquiry into the justification for any legislative distinction necessary.”
(People v. Barrett (2012) 54 Cal.4th 1081, 1107.) “If there is such a disparity, then we
must proceed to decide which level of scrutiny to apply.” (People v. Yanez (2019) 42
Cal.App.5th 91, 95.)
In Bryan S., which examined whether proposed LPS conservatees have the right to
refuse to testify in a conservatorship trial, the First District Court of Appeal, Division 1,
rejected a similar equal protection challenge to the LPS statute. (Bryan S., supra, 42
Cal.App.5th at pp. 196–198.) In that case, the proposed LPS conservatee asserted that he,
(as do individuals in NGI proceedings, MDO proceedings, and sexually violent predator
(SVP) proceedings) had a right to refuse to testify at his trial. (Id. at pp. 194, 196.)
The court in Bryan S. concluded an LPS conservatee faces materially different
circumstances from an NGI, an SVP, or an MDO, and the differences were fatal to the
equal protection claim. Specifically, the court observed: “LPS Act conservatees, unlike
those facing NGI, SVP, or MDO commitment proceedings, need not have been found to
have committed a crime or be a danger to others. [Citation.] As a result, there are far
more placement options for conservatees, and these options include noninstitutional
settings. Courts must determine the least restrictive and most appropriate placement for
conservatees, which includes placing them with family or friends. (§ 5358,
subds. (a)(1)(A), (c)(1).)” (Bryan S., supra, 42 Cal.App.5th at pp. 196–197.) We agree
with Bryan S. on this point. We decide, for reasons that largely track the analysis
21
distinguishing Blackburn and Tran set out above, that LPS conservatees are not similarly
situated to individuals in NGI and MDO proceedings with respect to the waiver of the
right to jury trial.8 The trial court was not obligated by either the California or federal
Constitutions under the circumstances here to elicit a personal, on-the-record waiver of
C.O.’s right to jury trial for reestablishment of the conservatorship.
F. Prejudice
Having concluded that the trial court erred under the LPS Act by failing to
expressly advise C.O. of his right to a jury trial, we consider the question of prejudice.
The parties disagree on the relevant standard. The public guardian argues for application
of the prejudicial error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836.
Under that rubric, we must determine whether it is reasonably probable that a result more
favorable to C.O. would have been reached in the absence of the error. C.O. asserts the
failure to advise and elicit a waiver was structural error requiring automatic reversal.
We have decided that the trial court violated C.O.’s statutory right under the LPS
Act by omitting to advise him personally of his jury trial right on the record.
Nevertheless, we have rejected C.O.’s other contentions, including his constitutional
claims, with respect to waiver of that right.
As the California Supreme Court has explained, “article VI, section 13 generally
‘prohibits a reviewing court from setting aside a judgment due to trial court error unless it
finds the error prejudicial.’ [Citation.] The section applies to both constitutional and
nonconstitutional errors. [Citation.] It ‘empower[s]’ appellate courts ‘to examine “the
entire cause, including the evidence,” ’ and ‘require[s]’ them ‘to affirm the judgment,
8
For this reason, we also reject the applicability of Conservatorship of E.B. (2020)
45 Cal.App.5th 986, 995–996, review granted June 24, 2020, S261812 [recognizing that
“NGI’s, SVP’s and MDO’s do not share identical characteristics with LPS conservatees”
but holding, for purposes of the testimonial privilege that they are similarly situated such
as the denial of the right to LPS conservatees to refuse to testify violates the equal
protection clause].
22
notwithstanding error, if error has not resulted “in a miscarriage of justice.” ’ [Citation.]
To be sure, even under article VI, section 13, an error is reversible per se when it
constitutes ‘a “ ‘structural [defect] in the . . . trial mechanism’ ” that defies evaluation for
harmlessness.’ [Citations.] But ‘[c]ategorization of an error as structural represents “the
exception and not the rule.” ’ [Citation.] ‘[A] strong presumption’ exists against finding
that an error falls within the structural category, and ‘it will be the rare case’ where an
error—even ‘a constitutional violation’— ‘will not be subject to harmless error
analysis.’ ” (F.P. v. Monier (2017) 3 Cal.5th 1099, 1108.) “In the absence of structural
error, the Watson standard for demonstrating prejudice controls.” (People v. Anzalone
(2013) 56 Cal.4th 545, 555.) “ ‘Plainly, not every violation of the state and federal right
to a jury trial is a structural defect requiring reversal without regard to whether the
defendant suffered actual prejudice.’ ” (Id. at p. 560.)
In support of his claim that a structural error analysis applies here, C.O. points
principally to Blackburn and Tran. The California Supreme Court stated in Blackburn it
would “treat a trial court’s failure to obtain a required personal jury trial waiver as
tantamount to the denial of a jury trial, and as such, it constitutes a ‘miscarriage of
justice’ under article VI, section 13.” (Blackburn, supra, 61 Cal.4th at p. 1134; see also
Tran, supra, 61 Cal.4th at p. 1169.)
However, Blackburn supports the application of harmless error rather than
structural error for the trial court’s failure to directly advise C.O. of his right to a jury
trial. The California Supreme Court stated that “a trial court’s failure to properly advise
an MDO defendant of the right to a jury trial does not by itself warrant automatic
reversal. Instead, a trial court’s acceptance of a defendant’s personal waiver without an
express advisement may be deemed harmless if the record affirmatively shows, based on
the totality of the circumstances, that the defendant’s waiver was knowing and
voluntary.” (Blackburn, supra, 61 Cal.4th p. 1136.)
23
In this case, we have determined a personal on-the-record waiver was not required
by statute, and there is substantial evidence supporting the trial court’s implied finding
that C.O.’s waiver was knowing and voluntary given the citation mailed to him that
explained his right to jury trial, the evidence that his counsel informed him of his right to
jury trial, his presence at the hearing when his counsel stated he wished a “court trial,”
and the evidence of his communications with his counsel about how he wished to
proceed. Given the totality of circumstances here, we are left solely with the error that
the trial court did not personally advise C.O. of his jury trial right, which we conclude by
itself does not warrant automatic reversal. (Cf. People v. Sivongxxay (2017) 3 Cal.5th
151, 183 [addressing statutory error under state law and rejecting criminal defendant’s
argument that advisement error required automatic reversal, because “in appropriate
circumstances courts can indeed ascertain whether or not a particular defendant would
have chosen a jury trial instead of a bench trial had an error in advisement not
occurred”].)
Heather W., which did address an LPS proceeding, is factually distinguishable
from C.O.’s circumstances. Unlike Heather W., where the record was effectively silent
about whether the proposed conservatee had been informed of the right to jury trial, the
record here affirmatively demonstrates C.O. was informed of his right to a jury trial, both
in writing and by his counsel. He did not express any disagreement or indicate that his
counsel’s express statement that he wanted a court trial was contrary to his wishes. We
therefore conclude the Watson standard applies.
Under this standard, “the appellant bears the burden to make an ‘affirmative
showing’ the trial court committed error that resulted in a miscarriage of justice.”
(Conservatorship of Maria B. (2013) 218 Cal.App.4th 514, 532–533.) C.O. has not
carried this burden. C.O. does not dispute the underlying evidence supporting the trial
court’s conclusion that he is gravely disabled (see fn. 4, ante). Having independently
reviewed the record, we determine the evidence—including the testimony provided by
24
C.O. and the expert psychologist—supports the conclusion that C.O. remained gravely
disabled at the time of the May 2019 court trial. We therefore conclude it is not
reasonably probable that an outcome more favorable to C.O. would have resulted had the
trial court personally advised him of his jury trial right. We also see nothing in the record
suggesting that C.O. would have elected a jury trial over a court trial if the trial court had
advised him personally at the court proceeding of his right to the former. The omission
of the jury trial advisement was harmless on this record.
III. DISPOSITION
The May 23, 2019 judgment is affirmed.
25
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Greenwood, P.J.
____________________________________
Grover, J.
H047087
Warren, as Public Guardian v. C.O.
Trial Court: Santa Clara County Superior Court, No. 1-95-MH-032662
Trial Judge: Hon. Cynthia C. Lie
Counsel: Joseph Vincent Doyle, by appointment of the Court of Appeal under
the Sixth District Appellate Program, for Objector and Appellant.
James R. Williams, County Counsel, Howard G. Frank, Deputy
County Counsel, for Petitioner and Respondent.
H047087
Warren, as Public Guardian v. C.O.