TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD OF RECORD HEREIN: PLEASE TAKE NOTICE that at the contested re-establishment hearing for LPS Conservatorship, set to be heard on [date] in Department 1901 of the above listed court, counsel for relative will move this court for a motion in limine prohibiting patient’s counsel from: 1. Referring to any document or evidence documenting patient’s counsel’s statements that relative plans to disregard the doctor’s treatment recommendations and statements that relative plans to move the conservatee out of state. 2. Presenting any and all written evidence regarding patient’s counsel’s statements that relative plans to disregard the doctor’s treatment recommendations and statements that relative plans to move the conservatee out of state. This motion in based on the California Code of Civil Procedure section 2030.030 and is further based on the attached memorandum of points and authorities, the attached declaration of relative’s name, all documents contained in the Public Conservator’s statement of facts regarding this matter, and any other evidence which may presented at this re-establishment hearing. Relative (?) has complied with the San Diego Court Local Rule ____ as set forth in the supporting declaration. (?) This motion is based on Evidence Code section 352 and Model Rules of Prof'l Conduct R. 3.3; 4.1 (2022). MOTION IN LIMINE NUMBER ONE Parent’s Counsel (?) moves this court for an order precluding all parties from offering any testimony, statements, or documents relating to the issue of whether proposed conservator, relative’s name, intentions are to move the conservatee out of state and to refuse to follow the treating psychiatrist’s recommendations. This motion is made pursuant to Evidence Code section 352, the trial court’s inherent authority to manage litigation, and is based on the grounds that patient’s counsel, violated of Model Rules of Prof'l Conduct R. 3.3; 4.1 (2022) by knowingly presenting false evidence to the court which would be severely prejudicial and result in undue consumption of the court’s time. This Motion is based on the attached Memorandum of Points and Authorities, the accompanying Exhibit[s] ____, and any other matters present before this court. MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL BACKGROUND Relative submitted on [date] a request to the Public Conservator to investigate their suitability as private conservator also known as “successorship”. Relative was informed on [date] that the public conservator was unwilling to investigate successorship but were not told the reason behind the public conservator’s choice. Relative appealed to the Public Conservator’s superiors, [name] and [name]. The Public Conservator [supervisor name] informed relative via email and phone call on [date] that they would not be willing to investigate the matter further and denied successorship without providing grounds for denial. Relative on [date] submitted more email documentation outlining her plan to provide closer supervision of treatment for the conservatee, plans to work the doctor to find the most suitable medication for the conservatee, and possibility to work with conservatee’s case manager to find suitable placement. After relative’s second email to the public conservator, relative was contacted by conservatee’s counsel on [date] and conservatee’s counsel verbally informed relative that she believed that the relative’s plan to serve as conservator had malicious intent and entailed not following the doctor’s medical recommendations and moving the conservatee out of state where the LPS Conservatorship would be void. Relative responded to conservatee’s counsel and wrote via email on [date] that she was not intending to do such and that she would comply with the doctor’s recommendations and keep the conservatee in the IMD [name] if that was the doctor’s recommendations. Relative clarified that she would raise concerns she had but in no way would she ignore the treatment team’s advice. On [date] conservatee’s counsel responded again and informed relative that she was going to relay to the court and the Public Conservator’s office her concerns about relative plan to defy all orders and recommendations despite prior being informed about relative’s prior email communication clarifying this issue. On [date] the conservatee, name, reached out to relative and told her over the phone that he was very upset as his lawyer reached out to him via phone call and informed him that relative was planning to move him out of state and not follow his doctor’s orders. Relative once more reached out on [date] to conservatee’s counsel and informed her that she was very concerned that conservatee’s counsel planned to knowingly and willingly enter into evidence false statements, and planned to present it to the court. Relative deems that such actions would be fatal to the conservatee’s case. At the time of this filing this Motion no further correspondence has occurred regarding this issue. Relative seeks an order precluding patient’s counsel (?) from reciting or otherwise attempting to get into evidence statements regarding these allegations of anticipated misconduct. II. ARGUMENT I. THIS COURT MAY EXCLUDE PREJUDICIAL OR IRRELEVANT EVIDENCE IN ADVANCE OF A CONTESTED HEARING BY WAY OF A MOTION IN LIMINE Courts have “fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them”. (Rutherford v. Owens- Illinois, Inc, (1997) 16 Cal.4th 953, 967. Additionally, Evidence Code section 352 provides the court the power to exclude evidence if its probative value is substantially outweighed by the probability that its admission will (1) necessitate undue consumption of time or (2) create substantial danger of undue prejudice, of course confusing the issues, or of misleading the jury. Additionally, the court may instruct opposing counsel to avoid mentioning or referring to the evidence in question during the contested hearing. II. COUNSEL MAY NOT INTRODUCE EVIDENCE HE OR SHE KNOWS IS FALSE Relative asserts that she anticipated that conservatee’s counsel’s will present known false statements regarding relative’s motivation to serve as conservator. Relative asserts this would violate Model Rules of Conduct 3.3 as conservatee’s counsel has already informed conservatee, public conservator, and verbally informed relative personally that she would knowingly present demonstrably false information to the court on the day of the re-establishment hearing. Under Model Rules of Conduct 3.3, (a)(1),(3) entitled “Candor Toward the Tribunal; a lawyer shall not make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; [or] offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. Conservatee’s counsel has been noticed [x number of times] that her assertions about relative’s statements are false and prejudicial. Relative’s emails [Exhibit X-X] demonstrate that the inconsistent statements with what conservatee’s counsel plans to present and what relative has written. Relative asserts that if counsel were to present such “evidence”, conservatee’s counsel will prejudice the case severely as these allegations (?) will hinder the conservatee’s care as the treating doctors, the court, case managers, and nursing staff will not consider any important health and psychiatric information relative wishes to relay for the conservatee’s safety. Relative has known conservatee for [x number of years] and due to her extensive personal knowledge, her advice, advisements, and assistance should not be disregarded based on false statements made by patient’s counsel. Relative believes that these false statements have already influenced the Public Conservator to forgo the directives of Welf & I C section 5350(b)(1) which mandates that a family member who is qualified to serve is preferred and that the public conservator is tasked with investigating suitability and shall deny only for good cause. Here, should conservatee’s counsel attempt to proffer at the contested hearing, any and all evidence relating to these false statements regarding relative’s motives, the appropriate action for such evidential and ethical (?) violation would be to prevent conservatee’s counsel from introducing them at trial. Dated: April XX, 2022 Respectfully Submitted _____________ Attorney for Relative DECLARATION OF ATTORNEY FOR RELATIVE I, Attorney for relative, declare, 1. I am attorney at law duly licensed to practice before all courts in the State of California and am an attorney with firm redacted, attorney of record for relative, parties of record in the subject litigation (?) In the Matter of the Conservatorship of Conservatee. Case No. MH XXXX: 2. I have personal knowledge of the facts set forth in this declaration and, if called as a witness could and would competently testify to such facts under oath. 3. This declaration is made in support of Relative’s Motion in Limine No. 1. 4. On behalf of Relative on [date], I prepared and sent a letter to Patient’s Counsel describing the motion in limine I planned on filing on behalf of my client. 5. For a motion in limine under these special circumstances would there need to be statements and Exhibits of a meet and confer in good faith prior to filing this motion (?) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on [date] at location of firm redacted. ____________________________ Attorney Name, declarant
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The past controlling legal precedent regarding expert testimony Gardeley
To understand how Sanchez operates within the realm of LPS Conservatorship, the first step would be to understand the case that Sanchez overruled. Sanchez overruled People v. Gardeley, 14 Cal. 4th 605, (1996). Gardeley held that expert witnesses may render an expert opinion based on information that is not admitted into evidence so long as that information is (1) material, (2) meets the reliable test, and (3) is the kind of information that experts routinely rely upon to render their opinions. Simply put experts under the Gardeley opinion may relate to case specific hearsay in rendering their opinion. The evidence code allows expert witnesses to state on direct the reasons for rendering said opinion and the information upon which they based their opinion. Expert witnesses under Gardeley can render an opinion based on inadmissible information should all these dispositive factors be met. Additionally, the California Supreme court added procedural safeguards against abuse of Gardeley’s findings. It opined that the trial court has considerable discretion to control the direct and cross of the expert witness to prevent the jury from hearing hearsay. The trial court must at the same time conduct a balancing test of whether the probative value of the expert’s inadmissible evidence outweighs the risk that the jury might improperly hear and deem the expert’s statements about any inadmissible evidence as independent proof of a material fact. If all has been said and done the expert may render an opinion based on inadmissible hearsay. How would this look for LPS? An expert could under Gardeley may relate to hearsay subject matter of grave disability, psychiatric decompensation, and PERT reports at the 72 hold as these are matters sufficiently beyond common experience. These kinds of evidence are usually not admitted into evidence but under Gardeley this evidence (being relied upon by experts) must be reliable. West's Ann.Cal.Evid.Code § 801(b). So long as this threshold of reliability is satisfied, even case specific hearsay that is ordinarily inadmissible may be used to form the basis for expert's opinion testimony. THIS IS DIRECTORY NOT ADVISORY. Under Gardeley the trial court had the discretion to weigh the probative value of using inadmissible evidence against the risk that jury might improperly consider it as independent proof of facts (expert using hearsay statements for the truth of the matter asserted rather than just a "supplement" to their opinion), because the court does not want to "open the door" for inadmissible matter to routinely turn "case specific hearsay" statements into independent proof of facts. This is how most counties do it and as a "certain group of med mal" lawyers say, Sanchez/ Gardeley are what the judge say they are. Meaning that counsel usually has to comport to the norms and practices of their bench officers even if it runs counter to controlling case law. Moving on..... This now brings us to People v. Sanchez, 63 Cal. 4th 665, 374 P.3d 320 (2016) which made Gardeley bad law and technically unciteable Sanchez clarifies the hearsay exception and experts and now basically says that experts cannot relate to case specific hearsay (information that the expert has no prior independent knowledge of) in rendering their opinions. They may however, continue to relate to non case specific hearsay (information that exists outside of the case ie DSM V, training from med school, research papers). The issue with Sanchez is that a lot of people questioned experts who relied on out of court statements in rendering their opinion. Under the Gardeley court the experts basically said "we are relying on these statements from out of court witnesses to generate our expert opinion, but we are not relying on them for the truth of the matter..... just as a supplement ". However, with the new Sanchez opinion the court stated that "this paradigm is no longer tenable because an expert’s testimony regarding the basis for an opinion must be considered for its truth". Meaning that no opinion can be created and relied upon unless the expert assumes that it is true. Otherwise if the fact pattern changes or was found to be false then the expert would create an entirely new opinion. In re Sanchez “[T]here is no denying that such facts are being considered by the expert, and offered to the jury, as true.” (Id. at p. 684.) Simply stated after Sanchez, reliability is no longer the sole basis of hearsay admissibility regarding expert testimony. Admissibility is now cut-and-dried: If it is a case-specific fact and the expert (Dr) has no personal knowledge of it, if no (business record exception) hearsay exception applies and if the expert treats the fact as true, the expert simply may not testify about it and should they it could warrant a reversal from the court of appeals. Now how would this look with LPS out in the field. We have a doctor here saying he's basing his findings on what another Dr saw during treatment at an IMD (like during a re estab hearing), and he's relying on what the Dr at Alpine wrote and said about the conservatee to generate his expert opinion, counsel may be able to raise Sanchez and say We never saw the data, report, etc; therefore, we move to exclude the opinion under Sanchez (oral objection or motion in limine). Technically the expert's testimony could be excluded. However, attorneys have different ways to get around Sanchez. Those med mal lawyers opine that you could advise your expert to get around it by saying yes I did receive and considered those reports but based on my training, knowledge of the DSM V, education in med school/residency, experience treating psychiatric patients, when I reviewed the medical records I relied on all of the above and this is my opinion.... Now I personally dont like what these lawyers had to say because there are too many holes but I'm just putting it out there. Another more realistic answer goes something like this "The Dr's testimony was not based entirely on third party reports, but also upon his own experience: serving as a consulting member of the conservatee's treatment team; consulting about appropriate placements and services for conservatee, and conducting several personal interviews and evaluations of conservatee on these dates. (make sure it's entered into the record or you run the risk of reversal due to forfeiture should someone appeal). This Dr also had observed conservatee when they were a patient at _______ psychiatric inpatient facilities. Thus given the totality of the evidence, this Dr when testifying and giving his expert opinion and basis for his opinion is “pretty familiar” with conservatee. He has enough personal independent knowledge of the facts that constitute the basis for his opinion. Thus he may rely on these facts "for the truth of the matter asserted" might want to run that one by a lawyer to make sure I said that right. I should also note that people tend to forget that Sanchez somewhere says that the expert cannot base his opinion solely on hearsay. Lee Blumen and I would probably try and argue that if the trial court must it may throw out the inadmissible parts and focus on the evidence that is admissible under an exception. Let the Dr's expert opinion rest on the exceptions and not throw out the opinion entirely because someone focused too much hearsay inadmissible under Sanchez. Another exception that may apply to nursing notes, CERNER, and other hospital records. Many lawyers try and overcome hearsay citing Business Records Exception (Cal. Evid. Code § 1271) Business records exception states that evidence in the form of a writing made about an act, condition, or event is not made inadmissible by the hearsay rule if conditions are met. The person proffering that record must show that (a) The writing was made in the regular course of a business; (b) The writing was made at or near the time of the act, condition, or event; (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness. This is written in the conjunctive meaning that all the criteria need to be met. It does not mean “either this or that.”. All need to be met and counsel would be wise to ensure that the record shows that the evidence has been properly tendered and foundation laid showing Business records exception has been met. In re E.A. (2018) 24 Cal.App.5th 648. In establishing this exception counsel always needs to bear in mind the high burden of proof for LPS. Counsel also needs to be on notice that Conservatorship of O.B. reminded everyone that standards of proof although subject to human limitations (bias) are not an empty formality so be extra mindful that bench officers may be enforcing that high burden of proof even more stringently. In the future I will touch on the reality that counsel may one day try to challenge Sanchez objections saying that informal objections or motions in limine are moot as counsel cannot "unring the bell". That would complicate Sanchez even further. 2/15/2022 Speculation sunday- How Could Counsel Address Contra Costa Not Allowing Private LPS ConservatorsRead NowHow Could Counsel Address Contra Costa Not Allowing Private LPS Conservators
For this analysis I shall be drawing primarily from the following legal authorities: In re Harley C., 37 Cal. App. 5th 494, 249 Cal. Rptr. 3d 783 (2019); Los Angeles v Superior Court (Kennebrew) (2013) 222 CA4th 434; and People v. Karriker, 149 Cal. App. 4th 763, 57 Cal. Rptr. 3d 412 (2007) To consider the issue of whether Contra Costa should be allowed to completely bar private conservators, the courts should consider the legal authority that promulgates the notion that courts can establish local rules. The trial courts possess inherent rulemaking authority as well as rulemaking authority as granted by statute. Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967, 67 Cal.Rptr.2d 16, 941. Per statue(?)trial courts hold inherent power to exercise reasonable control over all proceedings to ensure the administration of justice. However, the trial court’s power to establish and uphold local rules shall not be in conflict current local rules, statutes, case law, and rules of court per the Judicial Council In re Harley C., 37 Cal. App. 5th 494, 249 Cal. Rptr. Currently Welf & I C §5355 states that If the conservatorship investigation results in a recommendation for conservatorship, the recommendation shall designate the most suitable person, corporation, state or local agency or county officer, or employee designated by the county to serve as conservator. No person, corporation, or agency shall be designated as conservator whose interests, activities, obligations or responsibilities are such as to compromise his or her or their ability to represent and safeguard the interests of the conservatee. In this case it could be argued that per the code, the only restriction provided is that no one can be appointed “whose interests, activities, obligations or responsibilities are such as to compromise his or her ability to represent and safeguard the interests of the conservatee”. Additionally, Welf & I C §5350(b)(1) sets forth that The appointment of a conservator is subject to the priority list set out in Prob C §1812, of persons who can serve as conservator, unless the conservatorship investigator recommends otherwise. A family member is preferred, if qualified to act. Under Conservatorship of Walker, 206 Cal. App. 3d 1572, 254 Cal. Rptr. 552 (Ct. App. 1989), the conservatorship investigator must also investigate whether family members are willing and able to serve as conservator, even if they are unwilling to house the conservatee in their homes. Given this controlling authority, it seems that the court imposing its own local rule barring private LPS Conservators entirely would fall under an abuse of its inherent rule making authority. In the Harley C court, it found that in promulgating local rules the trial courts must balance the need to maintain control over the pace of litigation and the need to decide cases on their merits rather than on procedural issues. When the court finds itself in a situation when the two “needs” conflict the court ought to favour a disposition on the merits over the need for judicial efficiency. In this hypothetical scenario, should the trial court in the absence prior litigation abuse, issue an order based on a local rule that runs contrary to the controlling authority under Welfare and Institutions Code, the failure to consider a private LPS Conservator, it is an abuse of discretion. However, LPS differs from dependency litigation in that under Los Angeles v Superior Court (Kennebrew) (2013) 222 CA4th 434; Kaplan v. Superior Ct., 216 Cal. App. 3d 1354, 1356, 265 Cal. Rptr. 408, 409 (Ct. App. 1989); and People v. Karriker, 149 Cal. App. 4th 763, 57 Cal. Rptr. 3d 412 (2007), the public guardian holds the sole discretion to file for LPS Conservatorship and the decision to file for LPS Conservatorship cannot be compelled by mandamus. The discretion to file a petition for the appointment of an LPS conservator is vested in the sole discretion of the conservatorship investigator. West's Ann.Cal.Penal Code § 1370; West's Ann.Cal.Welf. & Inst.Code § 5351 et seq. Should the trial court initiate a judicial proceeding to compel the public guardian to act against its discretion a writ of prohibition is an appropriate remedy. In the Kaplan court, the appellate court stated that: We shall therefore order a writ of prohibition to issue barring respondent superior court from taking any further action in the underlying proceeding to appoint a conservator, except to dismiss it. Kaplan v. Superior Ct., 216 Cal. App. 3d 1354, 1356, 265 Cal. Rptr. 408, 409 (Ct. App. 1989) By extension most courts have extended this logic to all public guardian decisions. Most courts consider that the public guardian’s legal authority cannot be challenged via collateral attacks or any other motion. For example, in San Diego County, if the public conservator does not want to appoint a private conservator, there shall be no additional evidentiary hearing or contested hearing on behalf of the proposed private LPS Conservator. Counsel in potentially addressing Contra Costa’s local rule could raise Los Angeles v Superior Court (Kennebrew) (2013) 222 CA4th 434 which found that although the trial court may not issue an order compelling the public guardian to perform its duties in a certain way, it may review the public guardian’s decision to not file for LPS Conservatorship to ensure it comports with the directives of Welfare and Institutions Code. The trial court may review administrative agency's action to determine whether it is arbitrary, capricious, or entirely without evidentiary support, contrary to public policy, or procedurally unfair or unauthorized by law. [cite] As mentioned earlier, Welf & I C §5355 states that If the conservatorship investigation results in a recommendation for conservatorship, the recommendation shall designate the most suitable person, corporation, state or local agency or county officer, or employee designated by the county to serve as conservator. No person, corporation, or agency shall be designated as conservator whose interests, activities, obligations or responsibilities are such as to compromise his or her or their ability to represent and safeguard the interests of the conservatee. The Karriker court does not directly answer the question of whether a public guardian's refusal to establish an LPS conservatorship might be reviewed as an abuse of discretion, so the Kennebrew opinion serves to answer this question. Because Welf & I C § 5355 implies that the public guardian is to investigate all potential LPS Conservators, Contra Costa’s local rule barring appointment of any private LPS Conservators is unduly prejudicial and favours judicial expediency over deciding a case on the merits. As stated in In re Harley C., 37 Cal. App. 5th 494, 249 Cal. Rptr. 3d 783 (2019), Court procedures [and local rules], however well-intentioned, should not be imposed at the expense of the parties' basic rights to have their matters fairly adjudicated. For the above reasons, counsel could request review of the public guardian’s refusal to consider private LPS Conservators in an attempt to ensure the agency performs its official act as required by LPS provisions. Los Angeles v Superior Court (Kennebrew) (2013) 222 CA4th 434 Some people may wish to debate about the specifics of LPS vs probate conservatorships. The best answer to this is to look at the different codes. Welfare and Institutions Code and Probate Code are not in pari materia. Welf and I C 5350 et seq sets out "self contained" procedures for regulating LPS trials which can be inconsistent with the normal timelines and procedures under the standard Code of Civil Procedure/Probate Code but everyone needs to remember that LPS conservatorship/ MH court is a closed universe. When probate lawyers take on LPS cases and during the course of court they are drawing on all of their knowledge from law school and the probate Code; they risk messing up the case entirely.... why? Because they didn't appreciate the fact that LPS is a closed universe. So here in LPS Conservatorship court, the only thing you need to use is the code. And which one? Welfare and Institutions Code. That's the only thing you go to. If in the Welf and I C it directs you to the probate code then you go to the probate code.... if it directs you to the criminal/PC you go to the PC. And so on and so forth. But you don't go first to the probate code unless and until Welf and I C tells you to do so. LPS and probate courts have separate statutory schemes and distinct purposes. The presumption of psychiatric fitness that unlies probate law in the probate conservatorship court does not apply to LPS cases. Our clients as much as we respect them and want them to get better ...... they are not psychiatrically fit. They are not fit legally. We are doing everything we can during the course of the LPS conservatorship to restore them to psychiatric fitness and return them to the community. But LPS clients do not have that presumption so counsel cannot just go the probate code in the course of an LPS proceeding. That is where psychiatrically fit clients go. They go probate court. LPS/mental health court, which is intimately involved in the treatment of gravely disabled psychiatrically unfit patients, is best situated to make involuntary care orders due to the need to understand the precise nature of understanding LPS legislature and controlling case law behind involuntary psychiatric care without any preferences and presumptions. Most probate courts and bench officers manage the affairs of elderly and developmentally disabled adults and therefore do not handle LPS cases.
Quick Summary of Conservatorship of Joanne R.
Conservatorship of Joanne R., 72 Cal. App. 5th 1009, 287 Cal. Rptr. 3d 829 (2021), reh'g denied (Jan. 4, 2022) Issue: When the trial court provided conservatee with a jury trial waiver advisement regarding delays and offers two options, did the trial court improperly induced appellant to waive her right to a jury trial via "coercion". The appellate court noted that although it is concerned by the delay in providing timely jury trials during the COVID-19 pandemic, there was no violation of conservatee's statutory right to a jury trial nor did the trial court proffer some reward/coercion to waive jury trial. Holding: The appellate court found that the trial court did not impel the conservatee to choose a bench trial over a jury trial via an offer of a reward that presented a "substantial danger of unintentional coercion" thereby violating right to due process, and that the conservatee made a voluntary, knowing, and intelligent decision to waive her right to a jury trial free from intimidation, coercion, or deception pursuant to People v. Collins (2001) 26 Cal.4th 297, 312, 109 Cal.Rptr.2d 836, 27 P.3d 726. DID THE TRIAL COURT BY MEANS OF DECEPTION OR OFFER OF REWARD, VIOLATE CONSERVATEE'S DUE PROCESS RIGHT TO WAIVE HER JURY TRIAL RIGHTS FREE FROM COERCION? Counsel contends that the case law governing criminal proceedings are in pari materia with LPS civil commitment proceedings. In a criminal proceeding, a defendant's waiver of right to jury trial may not be accepted by the court unless the defendant knowing and intelligently makes the decision with full awareness both of the consequences behind abandoning it. The decision must be voluntary and it must be a product of a free and deliberate choice not one due to intimidation, coercion, or deception from the bench officer. Conservatee contends the trial court did not provide her an adequate jury trial waiver advisement and that the trial court improperly coerced her to waive her right to a jury trial by informing her she could either have a court trial that day or a jury trial nine months later due to delays. Conservatee contends that the trial court improperly “coerced” her to waive her rights by providing a “vague” benefit for waiving her right to jury trial. Conservatee construes that the trial court’s advice that she could have an immediate court trial or wait until November (nine months later) for a jury trial was coercion and that the court cited some incidental “benefit” not stated on the record. The trial court record did indicate that it stated that it was generally concerned with delayed jury trials: A conservatee’s right to a jury trial has little meaning if the conservatee can only exercise that right after spending nine months of a one-year term in a custodial setting. However, the record shows that the trial court did not coerce the conservatee but just simply explained that due to delays from the pandemic, jury trials were being scheduled months out. It then offered the conservatee a chance to choose after giving that information. After advising [conservatee] that she could have a court trial that day but a jury trial could not be scheduled until November, the court inquired, “Do you know which kind of trial you’d like to have?” [conservatee] answered that she preferred to have a jury trial, but she did not want to wait until November, emphasizing, “I want to do it as soon as possible.” The trial court stressed that in most circumstances a conservatee should have a jury trial within the time limits as it would violate due process for the conservatee to have a jury trial close to the time when the conservatorship would otherwise end after a year; however, when there is a health emergency, lengthy delays were unavoidable and out of either party's control. This brings us to the second issue.... DID THE CONSERVATEE MAKE A KNOWING, INTELLIGENT, AND VOLUNTARY DECISION BASED ON ALL OF THE AVAILABLE INFORMATION? Given that the trial court did not act in a manner to coerce or offer a reward for waiver of jury trial rights, the next issue is whether the conservatee made a voluntary and informed decision based on the trial court's information/advisement to waive her jury trial rights. The trial court record shows that no time did the trial court suggest conservatee would be rewarded if she elected to waive a jury trial. The trial court provided the conservatee with all of the important information regarding jury trials. The trial court advised conservatee that a jury is comprised of 12 members; the jury would hear the evidence and then decide whether the evidence proves beyond a reasonable doubt she is gravely disabled; and the jury would need to make a unanimous decision. The court also explained the difference between a bench trial and a jury trial and who the fact finder would be. The court's failure to advise that Joanne, through her counsel, had the right to participate in jury selection did not invalidate her jury waiver given the other advisements that informed Joanne of “the essence of the jury trial right.” (People v. Daniels, supra, 3 Cal.5th at p. 1019, 221 Cal.Rptr.3d 777, 400 P.3d 385 (conc. & dis. opn. of Corrigan, J.).) Under the totality of the circumstances, Joanne's jury trial waiver was knowing and intelligent. The only other fact was that the court encouraged her to talk to her lawyer before making a decision. After all of these advisements and one question, conservatee confirmed she wanted to proceed with a court trial that day. DID THE DELAYS IN JURY TRIAL BEYOND THE STATUTORY DEADLINE DEPRIVE THE TRIAL COURT OF ITS JURISDICTION? Although the appellate court did not give great consideration to this issue, the issue of whether untimely delays divest the trial court of its jurisdiction was brought up. Under, W & I code § 5350, (d)(2), a court or jury trial shall commence within 10 days of the date of the demand unless the attorney for the proposed conservatee requests up to a 15-day continuance. The appellee cited to Conservatorship of Jose B and opined that depending on the fact pattern a delayed jury trial does not always divest the court of its jurisdiction, as the Welf & I C code is directory not mandatory, meaning that because there is not a codified “consequence” for failure to commence the trial within 10 days of the demand holding the provision mandatory would divest a trial court of jurisdiction by a “mere implication” rather than by express statutory intent. This appellate court noted that although "We are deeply troubled by the significant delay of over four months in holding a trial on [the] petition, especially given the lack of any justification by the court for most of the delay", cited to Conservatorship of Jose B. Simply stated, the pandemic was reasonable cause for delay and because of this late jury trial hearings were not dispositive. Disposition Judgment affirmed. |
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