Peremptory Challenges and Conservatorship of Gordon
Court of Appeal of California, Fourth District, Division One
209 Cal. App. 3d 364
(Cal. Ct. App. 1989) Cal. Rptr. 365
The appellate court found that the instant court did not err in giving the conservatee 6 preemptory challenges. The conservatee challenged the finding citing that by not giving the conservatee 6 peremptory challenges, the appellate court has prejudiced the outcome of the conservatee’s trial. The conservatee also found fault in the instructions that the court gave regarding of the different levels of placement. The appellate court found the conservatee’s issues meritless and provides the reasoning.
Conservatee at the time was detained in san diego and was pending a hearing to determine whether a permanent conservatorship was appropriate. A permanent conservatorship was established. Upon establishment, the conservatee appealed asking for a jury trial. During the jury trial, the expert witness psychiatrist hired by the county opined that the conservatee suffered from paranoid schizophrenia and was unable to take care of his ADLs as a result. The conservatee’s sister also opined that he was unable to care for his food, clothing, and shelter. She testified that he was unable to use his funds despite having plenty. She proffered evidence that showed that the conservatee was unable to manage his shelter; being homeless many times.
During closing, county counsel repeated that the conservatorship will last for a year, that it may end earlier, and that the conservatee may be subject to varying levels of restrictive placement. Conservatee’s counsel did not make any objection to closing. The conservatee filed the preceeding objections after the jury trial. The appellate court provides the following reasoning:
The court addresses the conservatee’s first contention; whether LPS conservatees are entitled to 6 or 10 preemptory challenges. The court cites California Civil Procedure:
Where there are two parties in a civil trial, each party is permitted to exercise six peremptory challenges. (Code Civ. Proc., § 231, subd. (c).) (1a)
The conservatee argues that he is entitled to 10 challenges, the appropriate number for a criminal proceeding. The conservatee contends that since an LPS conservatorship proceeding carries significant risk of stigma and intrusion on his civil liberties as a criminal detention, he should be afforded the same rights as a criminal defendant which includes 10 preemptory challenges. He also cites that LPS conservatorships have the same burden of proof; proof beyond a reasonable doubt and unanimous jury verdict in re. Cons of Roulet.
The court acknowledges this fact but notes that even though conservatee’s rights are protected under the due process clause of the law, preemptory challenges are not.
"Neither the state nor federal Constitution `requires that Congress or the California Legislature grant peremptory challenges to the accused or prescribe any particular method of securing to an accused the right to exercise the peremptory challenges granted by the appropriate legislative body.' ( People v. King, supra, 240 Cal.App.2d [389] at 399.)
…the peremptory challenge is not a constitutional necessity but a statutory privilege
The court states that trial by an impartial jury is the only guarantee. The number of challenges is to be set forth by common law or congress. If a conservatee is wishing to avail themselves of this right, they must be aware that they must take the privilege with all of the limitations set for.
The conservatee contends that since LPS conservatorships have many similarities with criminal proceedings, the law stipulates that the two have different outcomes and goals. With criminal proceedings, the protection of the public is at stake. With LPS matters, the protection of the individual and rehabilitation are the goals. This differing treatment does not violate the equal protection clause.
The LPS conservatorship proceeding is a proceeding with the very specific goal of
“recognizing a person in dire need of the state's assistance. A conservatorship proceeding is not a prosecution for a particular act, but an attempt to determine a condition which is subject to change.” In re. Conservatorship of Baber (1984) 153 Cal.App.3d 542, 550
The court also finds that unlike a criminal defendant, the conservatee is entitled to a rehearing every year.
The court addresses that adding peremptory challenges would stress the court system. The court is already overburdened and behind budget. With the extra cost of providing such benefits to the conservatee, the expense of protecting those likely to be found undeserving will probably come out of the pockets of the deserving.” The conservatee in this case asks for the total number of challenges to be increased from 6 to 10. Given this difference, the court finds that expense of jury trial for LPS conservatees would increase thus making the legislature’s unwillingness to accommodate not unreasonable or arbitrary. The court at this level does not hold the power to increase the number of challenges afforded to conservatees. The appellate court found that the trial court did not err in denying the motion.
The court addresses the second contention; the fact that the conservatee was prejudiced by including information about the different levels of placement to the jury. The conservatee asserts that county counsel made prejudicial error as it is akin to suggesting a likely sentence in a noncapital criminal matter see in re. People v. Shannon (1956). The appellate court found that because the conservatee’s counsel failed to raise an objection during county counsel’s closing or during the testimony of the expert witness who gave the same information, the appellate court stated that it would not ordinarily consider procedural defects in connection with any relief sought. The court states that in order to entertain it needs to presented in a timely and appropriate manner to the trial court. A claim of misconduct is not entitled to consideration on appeal unless the record shows previous timely and proper objection and a request that the jury be admonished. [Citations.]'" ( Stevens v. Parke, Davis Co. (1973) 9 Cal.3d 51, 70 [ 107 Cal.Rptr. 45, 507 P.2d 653, 94 A.L.R.3d 1059], quoting Horn v. Atcheson, T. S.F. Ry. Co. (1964) 61 Cal.2d 602, 610 [ 39 Cal.Rptr. 721, 394 P.2d 561].) (4b)
Conservatee attempted to elevate the matter by claiming that it was an example of a rare case, but the appellate court found that this was not a case where:
evidence was so evenly balanced or the conduct so prejudicial that the lack of an objection and request for admonishment may be overlooked. (in re. People v. Green (1980) 27 Cal.3d 1, 34-35 [ 164 Cal.Rptr. 1, 609 P.2d 468
This is an example of even if there was prejudicial error, it would have not disturbed the jury’s findings. The appellate court sustained the trial court’s order.
Procedural Posture
Appellant challenged a finding of the Superior Court of San Diego (California) that he was gravely disabled, pursuant to Cal. Welf. & Inst. Code § 5008(h), and thus subject to conservatorship, arguing that respondent Department of Social Services' counsel made inappropriate remarks to the jury and that he should have been provided with the same number of peremptory challenges as a criminal defendant.
Overview
Appellant sought review of a lower court finding that he was gravely disabled within the meaning of Cal. Welf. & Inst. Code § 5008(h) and subject to conservatorship, contending that he should have been given the same number of peremptory challenged given to criminal defendants and that he was unfairly prejudiced when counsel for respondent Department of Social Services explained to the jury the levels of restriction that might be placed on him if he were found gravely disabled. On appeal, the lower court judgment was affirmed. In support of its ruling, the court held that unlike the requirements of proof beyond a reasonable doubt and a unanimous jury verdict, peremptory challenges were not mandated by due process. The court further held that the disparate treatment conservatees and criminal defendants received did not offend equal protection under U.S. Const. amend. XIV. The court also found that the issue of respondent's counsel's alleged misconduct was not preserved for review.
Outcome
The lower court judgment was affirmed because appellant was not entitled to the same number of peremptory challenges as a criminal defendant, and because the issue of counsel's alleged misconduct was not preserved for review.
Court of Appeal of California, Fourth District, Division One
209 Cal. App. 3d 364
(Cal. Ct. App. 1989) Cal. Rptr. 365
The appellate court found that the instant court did not err in giving the conservatee 6 preemptory challenges. The conservatee challenged the finding citing that by not giving the conservatee 6 peremptory challenges, the appellate court has prejudiced the outcome of the conservatee’s trial. The conservatee also found fault in the instructions that the court gave regarding of the different levels of placement. The appellate court found the conservatee’s issues meritless and provides the reasoning.
Conservatee at the time was detained in san diego and was pending a hearing to determine whether a permanent conservatorship was appropriate. A permanent conservatorship was established. Upon establishment, the conservatee appealed asking for a jury trial. During the jury trial, the expert witness psychiatrist hired by the county opined that the conservatee suffered from paranoid schizophrenia and was unable to take care of his ADLs as a result. The conservatee’s sister also opined that he was unable to care for his food, clothing, and shelter. She testified that he was unable to use his funds despite having plenty. She proffered evidence that showed that the conservatee was unable to manage his shelter; being homeless many times.
During closing, county counsel repeated that the conservatorship will last for a year, that it may end earlier, and that the conservatee may be subject to varying levels of restrictive placement. Conservatee’s counsel did not make any objection to closing. The conservatee filed the preceeding objections after the jury trial. The appellate court provides the following reasoning:
The court addresses the conservatee’s first contention; whether LPS conservatees are entitled to 6 or 10 preemptory challenges. The court cites California Civil Procedure:
Where there are two parties in a civil trial, each party is permitted to exercise six peremptory challenges. (Code Civ. Proc., § 231, subd. (c).) (1a)
The conservatee argues that he is entitled to 10 challenges, the appropriate number for a criminal proceeding. The conservatee contends that since an LPS conservatorship proceeding carries significant risk of stigma and intrusion on his civil liberties as a criminal detention, he should be afforded the same rights as a criminal defendant which includes 10 preemptory challenges. He also cites that LPS conservatorships have the same burden of proof; proof beyond a reasonable doubt and unanimous jury verdict in re. Cons of Roulet.
The court acknowledges this fact but notes that even though conservatee’s rights are protected under the due process clause of the law, preemptory challenges are not.
"Neither the state nor federal Constitution `requires that Congress or the California Legislature grant peremptory challenges to the accused or prescribe any particular method of securing to an accused the right to exercise the peremptory challenges granted by the appropriate legislative body.' ( People v. King, supra, 240 Cal.App.2d [389] at 399.)
…the peremptory challenge is not a constitutional necessity but a statutory privilege
The court states that trial by an impartial jury is the only guarantee. The number of challenges is to be set forth by common law or congress. If a conservatee is wishing to avail themselves of this right, they must be aware that they must take the privilege with all of the limitations set for.
The conservatee contends that since LPS conservatorships have many similarities with criminal proceedings, the law stipulates that the two have different outcomes and goals. With criminal proceedings, the protection of the public is at stake. With LPS matters, the protection of the individual and rehabilitation are the goals. This differing treatment does not violate the equal protection clause.
The LPS conservatorship proceeding is a proceeding with the very specific goal of
“recognizing a person in dire need of the state's assistance. A conservatorship proceeding is not a prosecution for a particular act, but an attempt to determine a condition which is subject to change.” In re. Conservatorship of Baber (1984) 153 Cal.App.3d 542, 550
The court also finds that unlike a criminal defendant, the conservatee is entitled to a rehearing every year.
The court addresses that adding peremptory challenges would stress the court system. The court is already overburdened and behind budget. With the extra cost of providing such benefits to the conservatee, the expense of protecting those likely to be found undeserving will probably come out of the pockets of the deserving.” The conservatee in this case asks for the total number of challenges to be increased from 6 to 10. Given this difference, the court finds that expense of jury trial for LPS conservatees would increase thus making the legislature’s unwillingness to accommodate not unreasonable or arbitrary. The court at this level does not hold the power to increase the number of challenges afforded to conservatees. The appellate court found that the trial court did not err in denying the motion.
The court addresses the second contention; the fact that the conservatee was prejudiced by including information about the different levels of placement to the jury. The conservatee asserts that county counsel made prejudicial error as it is akin to suggesting a likely sentence in a noncapital criminal matter see in re. People v. Shannon (1956). The appellate court found that because the conservatee’s counsel failed to raise an objection during county counsel’s closing or during the testimony of the expert witness who gave the same information, the appellate court stated that it would not ordinarily consider procedural defects in connection with any relief sought. The court states that in order to entertain it needs to presented in a timely and appropriate manner to the trial court. A claim of misconduct is not entitled to consideration on appeal unless the record shows previous timely and proper objection and a request that the jury be admonished. [Citations.]'" ( Stevens v. Parke, Davis Co. (1973) 9 Cal.3d 51, 70 [ 107 Cal.Rptr. 45, 507 P.2d 653, 94 A.L.R.3d 1059], quoting Horn v. Atcheson, T. S.F. Ry. Co. (1964) 61 Cal.2d 602, 610 [ 39 Cal.Rptr. 721, 394 P.2d 561].) (4b)
Conservatee attempted to elevate the matter by claiming that it was an example of a rare case, but the appellate court found that this was not a case where:
evidence was so evenly balanced or the conduct so prejudicial that the lack of an objection and request for admonishment may be overlooked. (in re. People v. Green (1980) 27 Cal.3d 1, 34-35 [ 164 Cal.Rptr. 1, 609 P.2d 468
This is an example of even if there was prejudicial error, it would have not disturbed the jury’s findings. The appellate court sustained the trial court’s order.
Procedural Posture
Appellant challenged a finding of the Superior Court of San Diego (California) that he was gravely disabled, pursuant to Cal. Welf. & Inst. Code § 5008(h), and thus subject to conservatorship, arguing that respondent Department of Social Services' counsel made inappropriate remarks to the jury and that he should have been provided with the same number of peremptory challenges as a criminal defendant.
Overview
Appellant sought review of a lower court finding that he was gravely disabled within the meaning of Cal. Welf. & Inst. Code § 5008(h) and subject to conservatorship, contending that he should have been given the same number of peremptory challenged given to criminal defendants and that he was unfairly prejudiced when counsel for respondent Department of Social Services explained to the jury the levels of restriction that might be placed on him if he were found gravely disabled. On appeal, the lower court judgment was affirmed. In support of its ruling, the court held that unlike the requirements of proof beyond a reasonable doubt and a unanimous jury verdict, peremptory challenges were not mandated by due process. The court further held that the disparate treatment conservatees and criminal defendants received did not offend equal protection under U.S. Const. amend. XIV. The court also found that the issue of respondent's counsel's alleged misconduct was not preserved for review.
Outcome
The lower court judgment was affirmed because appellant was not entitled to the same number of peremptory challenges as a criminal defendant, and because the issue of counsel's alleged misconduct was not preserved for review.