45 Cal.App.5th 986
Court of Appeal, First District, Division 5, California.
CONSERVATORSHIP of the Person and Estate OF E.B.
Public Guardian of Contra Costa County, Petitioner and Respondent,
v.
E.B., Objector and Appellant.
A157280
Filed: 2/27/2020
The central issue at hand in this is whether LPS Conservatees have the same due process protection when it comes to compelled testimony. Conservatee avers that LPS Conservatees should be granted the same protections as those facing NGRI and similar hearings. Conservatee asserts that although there are not criminal charges pending in most LPS Conservatorship matters, the stake of indefinite commitment remains thus warranting the same constitutional liberties. The trial court stated that because LPS Conservatorship was unique in its proceedings and did not have the “same” legal ramifications as a criminal proceeding, LPS Conservatees should not be granted the same protection against compelled testimony. The reviewing appellate court ruled that deprivation of protection from compelled testimony was not a harmless error and that the trial court erred in its decision.
Conservatee was diagnosed with schizophrenia. The conservatee was deemed gravely disabled and unable to take care of his food, clothing, or shelter. He was placed on a temporary conservatorship and then a jury trial was held as to the matter of whether appellant was gravely disabled and in need of a one year permanent conservatorship. Appellant filed an objection to refuse to be compelled to testify. The trial court rejected this objection and appellant was compelled to testify.
During his testimony appellant had to testify as to his plan of self care, medical history, and presentation of current illness. The doctors testifying before him had presented examples of how appellant was unable to cash checks for his personal needs or medical care. He had refused to cash them out of a belief that the bank tellers and family were out to get him. When asked about his own perception of his mental illness, appellant opined that he suffered from ADHD and a little bit of schizophrenia. His testimony was disorganized and not coherent. He was unable to explain the legal process of what was transpiring. He testified that he would follow up with medical care despite previous testimony indicating that he had a history of noncompliance. When asked about food, appellant opined that the public conservator would be the one to help with that matter. The trial court found appellant gravely disabled based on his testimony and that of the psychiatrist and placed appellant on a one year LPS Conservatorship. Appellant filed a timely appeal.
The reviewing appellate determined that the trial court had erred in its decision and offered the following reasons: (1) appellant was subject to disparate treatment by the trial court who saw too great of difference between LPS Conservatees and NGRI appellants (2) and upon application of the harmless error test, the court’s decision did have a “substantial and injurious effect or influence in determining the [outcome]” as appellant would have been subject to an indefinite period of involuntary commitment.
Disparate Treatment and LPS Conservatorship
The first point that the appellate court reviewed was the concept of disparate treatment.
“Under both the United States and California Constitutions, a person has the right to refuse to answer potentially incriminating questions put to him or her in any proceeding; in addition, the defendant in a criminal proceeding enjoys the right to refuse to testify at all.” (People v. Dunley (2016) 247 Cal.App.4th 1438, 1446 (Dunley)
Current constitutional rights do not permit for protection from self incrimination in civil matters including LPS Conservatorship. However, recent authority, Hudec v. Superior Court (2015) 60 Cal.4th 815, 818, permits for those facing involuntary commitment as a part of a pending criminal matter may be afforded such protections. PC §1026.5, subdivision (b)(7), mandates that protection against forced testimony is protected under “the rights guaranteed under the federal and State Constitutions for criminal proceedings.” Because Hudec case involved criminal charges and involuntary confinement is part of the remedy for not guilty by reason of insanity, the court deemed it quasi criminal civil matter. Appellant acknowledged that civil matters and LPS Conservatorship are not afforded the same protection yet cited this case averring that the court must not use disparate treatment when dealing with LPS Conservatorship matters.
“The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.”
Appellant cites:
“The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.”[citation unknown]
Simply put appellant was asking the court to make a determination and judgement as to where the similarities end with NGRI placements and LPS Conservatorship placements. He cites that he has “a meritorious claim under the equal protection clause” because LPS Conservatees and NGRI may stem from different codes of the law yet the outcome is very similar. Both have an outcome of involuntary treatment that can turn into an indefinite period given appropriate burden of proof is met at the review hearings. He cites another case in re McKee, supra, 47 Cal.4th at pages 1183–1184 which bears similar resemblance to his current case in which the court did find difference between SVP and MDO yet those differences were not great enough to call for disparate treatment.
Conservatee accurately cites that “most of the time the LPS Conservatorship is enacted to “focus on the prompt evaluation and treatment of persons with serious mental disorders without respect to their criminal activities (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 540); however, this difference from NGRI’s do not change the outcome of the matter as both are subject to confinement.
One of the principal powers which the court may grant a conservator is the right to place a conservatee in an institution.
Welf and Inst Codes § 5360 et seq
The period of temporary conservatorship is not included in the one-year period.
If the conservator petitions to reestablish an expiring conservatorship, the court may order the conservatee confined past the termination date until renewal proceedings are completed
Should the court focus on the reason of the treatment as grounds for disparate treatment, appellant adds that the reason for NGRI orders is to
“The primary purpose of NGI extension proceedings and MDO and SVP commitments is to protect the public from people found dangerous to others and who need treatment for a mental disorder, but an ancillary purpose is to provide mental health treatment for the disorder”.
and the reason for LPS Conservatorship is to
“§ 5008, the court shall consider the purposes of protection of the public and the treatment of the conservatee. Notwithstanding any other provision of this section, the court shall not appoint the proposed conservator if the court determines that appointment of the proposed conservator will not result in adequate protection of the public”.
Appellant adds that procedural issues are similar in that NGRI and LPS Conservatorship both have
As with NGI extension proceedings, MDO proceedings, and SVP proceedings, a proceeding to declare a conservatorship under the LPS statute requires that the government bear the burden of proof beyond a reasonable doubt, and that the subject of the petition have the right to a jury trial and a unanimous verdict
Citing these three authorities, the appellant lays the ground for similarities between both in both purpose, process, and outcome.
Public conservator offers no substantial claim as to why appellant’s claims would incorrect application nor why dur process protections be afforded to the conservatee. Respondent public conservator only opined that NGRI, SVP, and MDO all have a criminal basis whereas LPS Conservatorships almost always are civil in nature (minus Murphy Conservatorships) and that this should be the grounds for preclusion from similar protections.
The appellate court addressed this assertion stating that in some cases disparate treatment may be justified in ordering some actions such as housing SVP in special housing based on the criminal basis of their confinement but that these differences should not be dispositive in the larger picture of compelling testimony during a trial. The appellate court implied that compelling testimony which may be a strong basis for the court ordering of an LPS Conservatorship, is a more serious matter than an issue of housing. Also the appellate court opined that its decision making and line of logic stems from “equal protection, not the right against compelled testimony”. The appellate court appears to reprimand the public conservator for focusing on the wrong issue when due process rights are at stake. The court cites:
“[T]he gravely disabled person for whom a conservatorship has been established faces the loss of many other liberties in addition to the loss of his or her freedom from physical restraint.”
“Indeed, a conservatee may be subjected to greater control of his or her life than one convicted of a crime”. Conservatorship of Heather W. (2016) 245 Cal.App.4th 378,; Conservatorship of Kevin A. (2015) 240 Cal.App.4th
The appellate court turns its second issue of (2) harmless error test. The public conservator asserts that even if the compelled testimony were barred, the testimony from the other experts would have still rendered a finding of grave disability. In re Conservatorship of Walker (1987) 196 Cal.App.3d 1082, 1094 (Walker), the public conservator finds that if the standard of harmless error, beyond-areasonable-doubt, were applied, there would have been no prejudicial error. There were two mental health professionals who proffered their opinion and observations which painted a picture of appellant’s severe mental illness even if he had not said anything. The appellate court upheld the public conservator’s assertion and found that no prejudicial error was made.
However, the case was entertained at the appellate court level as the court found that the first issue of disparate treatment was of continuing public interest and importance.
The appellate court affirmed the judgement of the trial court but left the message that
“In future cases, however, the government should be prepared to justify the disparate treatment under the second prong of the equal protection analysis”.
45 Cal.App.5th 986
Review Granted
Court of Appeal, First District, Division 5, California.
CONSERVATORSHIP of the Person and Estate OF E.B.
Public Guardian of Contra Costa County, Petitioner and Respondent,
v.
E.B., Objector and Appellant.
A157280
Filed: 2/27/2020
Synopsis
Background: Public guardian filed a petition under the Lanterman-Petris-Short Act seeking appointment of a conservator and alleging that conservatee was gravely disabled as a result of a mental disorder, was unable or unwilling to accept treatment voluntarily, and was unable to manage his financial resources. The Superior Court, Contra Costa County, No. P18-01826, Susanne Fenstermacher, J., denied conservatee's written objection to compelled testimony, and, following jury trial, determined that his current placement in a mental health rehabilitation facility was the least restrictive and most appropriate placement. Conservatee appealed.
Holdings: The Court of Appeal, Needham, J., held that:
1 Lanterman-Petris-Short (LPS) Act conservatees are similarly situated with not guilty by reason of insanity defendants for purposes of whether their testimony can be compelled, and
2 error in requiring conservatee to testify was harmless.
Affirmed.
Burns, J., concurred with opinion.
Court of Appeal, First District, Division 5, California.
CONSERVATORSHIP of the Person and Estate OF E.B.
Public Guardian of Contra Costa County, Petitioner and Respondent,
v.
E.B., Objector and Appellant.
A157280
Filed: 2/27/2020
The central issue at hand in this is whether LPS Conservatees have the same due process protection when it comes to compelled testimony. Conservatee avers that LPS Conservatees should be granted the same protections as those facing NGRI and similar hearings. Conservatee asserts that although there are not criminal charges pending in most LPS Conservatorship matters, the stake of indefinite commitment remains thus warranting the same constitutional liberties. The trial court stated that because LPS Conservatorship was unique in its proceedings and did not have the “same” legal ramifications as a criminal proceeding, LPS Conservatees should not be granted the same protection against compelled testimony. The reviewing appellate court ruled that deprivation of protection from compelled testimony was not a harmless error and that the trial court erred in its decision.
Conservatee was diagnosed with schizophrenia. The conservatee was deemed gravely disabled and unable to take care of his food, clothing, or shelter. He was placed on a temporary conservatorship and then a jury trial was held as to the matter of whether appellant was gravely disabled and in need of a one year permanent conservatorship. Appellant filed an objection to refuse to be compelled to testify. The trial court rejected this objection and appellant was compelled to testify.
During his testimony appellant had to testify as to his plan of self care, medical history, and presentation of current illness. The doctors testifying before him had presented examples of how appellant was unable to cash checks for his personal needs or medical care. He had refused to cash them out of a belief that the bank tellers and family were out to get him. When asked about his own perception of his mental illness, appellant opined that he suffered from ADHD and a little bit of schizophrenia. His testimony was disorganized and not coherent. He was unable to explain the legal process of what was transpiring. He testified that he would follow up with medical care despite previous testimony indicating that he had a history of noncompliance. When asked about food, appellant opined that the public conservator would be the one to help with that matter. The trial court found appellant gravely disabled based on his testimony and that of the psychiatrist and placed appellant on a one year LPS Conservatorship. Appellant filed a timely appeal.
The reviewing appellate determined that the trial court had erred in its decision and offered the following reasons: (1) appellant was subject to disparate treatment by the trial court who saw too great of difference between LPS Conservatees and NGRI appellants (2) and upon application of the harmless error test, the court’s decision did have a “substantial and injurious effect or influence in determining the [outcome]” as appellant would have been subject to an indefinite period of involuntary commitment.
Disparate Treatment and LPS Conservatorship
The first point that the appellate court reviewed was the concept of disparate treatment.
“Under both the United States and California Constitutions, a person has the right to refuse to answer potentially incriminating questions put to him or her in any proceeding; in addition, the defendant in a criminal proceeding enjoys the right to refuse to testify at all.” (People v. Dunley (2016) 247 Cal.App.4th 1438, 1446 (Dunley)
Current constitutional rights do not permit for protection from self incrimination in civil matters including LPS Conservatorship. However, recent authority, Hudec v. Superior Court (2015) 60 Cal.4th 815, 818, permits for those facing involuntary commitment as a part of a pending criminal matter may be afforded such protections. PC §1026.5, subdivision (b)(7), mandates that protection against forced testimony is protected under “the rights guaranteed under the federal and State Constitutions for criminal proceedings.” Because Hudec case involved criminal charges and involuntary confinement is part of the remedy for not guilty by reason of insanity, the court deemed it quasi criminal civil matter. Appellant acknowledged that civil matters and LPS Conservatorship are not afforded the same protection yet cited this case averring that the court must not use disparate treatment when dealing with LPS Conservatorship matters.
“The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.”
Appellant cites:
“The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.”[citation unknown]
Simply put appellant was asking the court to make a determination and judgement as to where the similarities end with NGRI placements and LPS Conservatorship placements. He cites that he has “a meritorious claim under the equal protection clause” because LPS Conservatees and NGRI may stem from different codes of the law yet the outcome is very similar. Both have an outcome of involuntary treatment that can turn into an indefinite period given appropriate burden of proof is met at the review hearings. He cites another case in re McKee, supra, 47 Cal.4th at pages 1183–1184 which bears similar resemblance to his current case in which the court did find difference between SVP and MDO yet those differences were not great enough to call for disparate treatment.
Conservatee accurately cites that “most of the time the LPS Conservatorship is enacted to “focus on the prompt evaluation and treatment of persons with serious mental disorders without respect to their criminal activities (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 540); however, this difference from NGRI’s do not change the outcome of the matter as both are subject to confinement.
One of the principal powers which the court may grant a conservator is the right to place a conservatee in an institution.
Welf and Inst Codes § 5360 et seq
The period of temporary conservatorship is not included in the one-year period.
If the conservator petitions to reestablish an expiring conservatorship, the court may order the conservatee confined past the termination date until renewal proceedings are completed
Should the court focus on the reason of the treatment as grounds for disparate treatment, appellant adds that the reason for NGRI orders is to
“The primary purpose of NGI extension proceedings and MDO and SVP commitments is to protect the public from people found dangerous to others and who need treatment for a mental disorder, but an ancillary purpose is to provide mental health treatment for the disorder”.
and the reason for LPS Conservatorship is to
“§ 5008, the court shall consider the purposes of protection of the public and the treatment of the conservatee. Notwithstanding any other provision of this section, the court shall not appoint the proposed conservator if the court determines that appointment of the proposed conservator will not result in adequate protection of the public”.
Appellant adds that procedural issues are similar in that NGRI and LPS Conservatorship both have
As with NGI extension proceedings, MDO proceedings, and SVP proceedings, a proceeding to declare a conservatorship under the LPS statute requires that the government bear the burden of proof beyond a reasonable doubt, and that the subject of the petition have the right to a jury trial and a unanimous verdict
Citing these three authorities, the appellant lays the ground for similarities between both in both purpose, process, and outcome.
Public conservator offers no substantial claim as to why appellant’s claims would incorrect application nor why dur process protections be afforded to the conservatee. Respondent public conservator only opined that NGRI, SVP, and MDO all have a criminal basis whereas LPS Conservatorships almost always are civil in nature (minus Murphy Conservatorships) and that this should be the grounds for preclusion from similar protections.
The appellate court addressed this assertion stating that in some cases disparate treatment may be justified in ordering some actions such as housing SVP in special housing based on the criminal basis of their confinement but that these differences should not be dispositive in the larger picture of compelling testimony during a trial. The appellate court implied that compelling testimony which may be a strong basis for the court ordering of an LPS Conservatorship, is a more serious matter than an issue of housing. Also the appellate court opined that its decision making and line of logic stems from “equal protection, not the right against compelled testimony”. The appellate court appears to reprimand the public conservator for focusing on the wrong issue when due process rights are at stake. The court cites:
“[T]he gravely disabled person for whom a conservatorship has been established faces the loss of many other liberties in addition to the loss of his or her freedom from physical restraint.”
“Indeed, a conservatee may be subjected to greater control of his or her life than one convicted of a crime”. Conservatorship of Heather W. (2016) 245 Cal.App.4th 378,; Conservatorship of Kevin A. (2015) 240 Cal.App.4th
The appellate court turns its second issue of (2) harmless error test. The public conservator asserts that even if the compelled testimony were barred, the testimony from the other experts would have still rendered a finding of grave disability. In re Conservatorship of Walker (1987) 196 Cal.App.3d 1082, 1094 (Walker), the public conservator finds that if the standard of harmless error, beyond-areasonable-doubt, were applied, there would have been no prejudicial error. There were two mental health professionals who proffered their opinion and observations which painted a picture of appellant’s severe mental illness even if he had not said anything. The appellate court upheld the public conservator’s assertion and found that no prejudicial error was made.
However, the case was entertained at the appellate court level as the court found that the first issue of disparate treatment was of continuing public interest and importance.
The appellate court affirmed the judgement of the trial court but left the message that
“In future cases, however, the government should be prepared to justify the disparate treatment under the second prong of the equal protection analysis”.
45 Cal.App.5th 986
Review Granted
Court of Appeal, First District, Division 5, California.
CONSERVATORSHIP of the Person and Estate OF E.B.
Public Guardian of Contra Costa County, Petitioner and Respondent,
v.
E.B., Objector and Appellant.
A157280
Filed: 2/27/2020
Synopsis
Background: Public guardian filed a petition under the Lanterman-Petris-Short Act seeking appointment of a conservator and alleging that conservatee was gravely disabled as a result of a mental disorder, was unable or unwilling to accept treatment voluntarily, and was unable to manage his financial resources. The Superior Court, Contra Costa County, No. P18-01826, Susanne Fenstermacher, J., denied conservatee's written objection to compelled testimony, and, following jury trial, determined that his current placement in a mental health rehabilitation facility was the least restrictive and most appropriate placement. Conservatee appealed.
Holdings: The Court of Appeal, Needham, J., held that:
1 Lanterman-Petris-Short (LPS) Act conservatees are similarly situated with not guilty by reason of insanity defendants for purposes of whether their testimony can be compelled, and
2 error in requiring conservatee to testify was harmless.
Affirmed.
Burns, J., concurred with opinion.