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    • Peremptory Challenges and Conservatorship of Gordon
    • Conservatorship of Sorenson privacy rights and LPS matters
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    • Conservatorship of George H- jury instruction
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    • Jury Trial Delays - Conservatorship of Joanne R.
    • Conservatorship of Hofferber- criminal incompetence and LPS
    • "Discretionary abuse" Conservatorship of G.H.
    • In re Elizabeth R- LPS Conserved Parent with a concurrent dependency case
    • Conservatorship of C.O. - Waiver of Jury Trial
    • Conservatorship of Smith and strange behaviour
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    • Conservatorship of Baber and Double jeopardy and third party evidence >
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      • Exceptions: Third Party Evidence
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    • SERVING AS CONSERVATOR
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    • CONSERVATEE INTERVIEW
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    • WRAPPING IT ALL TOGETHER AND CREATING THE NEXUS BETWEEN SYMPTOMS, HISTORY, COMPLIANCE, THIRD PARTY ASSISTANCE TO PROOF OF CURRENT GRAVE DISABILITY BEYOND A REASONABLE DOUBT
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12/9/2021

court of appeal discretion to hear unpreserved issues

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ISSUE OF HEARING UNPRESERVED ISSUES AND CITING TO DEPUBLISHED CASES AS CONTROLLING AUTHORITY ON THIS ISSUE
 
Everyone is taught via MCLEs and supervisors that trial counsel forfeits an issue for review when they do not ensure that that objection or issue has been read and considered by the bench officer. They teach us that anything out of the court stating “on the record the court has read and considered” has not made it into the trial court record and counsel needs to take steps to ensure that thing is admitted properly. In the most recent published LPS Conservatorship case, the appellate court reminds everyone of this “exception” to the rule.
 
“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” Conservatorship of C.O., No. H047087, 2021 WL 5371163, at *2 (Cal. Ct. App. Nov. 18, 2021)
 
However, the appellate court reminds the PG of its inherent authority to hear issues even if they are forfeited.
 
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.” 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.)
Conservatorship of C.O., No. H047087, 2021 WL 5371163, at *2 (Cal. Ct. App. Nov. 18, 2021)
 
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. Under these circumstances, we exercise our discretion to address the merits, notwithstanding C.O.'s failure to raise the claims in the trial court.
 
Sure the appellate court stated its reasons however, this runs into the next issue. We are taught by supervisors and the writ department that we need to shepardize/keycite our briefs because we can get into trouble for citing unpublished/depublished cases, California Rules of Court, rule 977(a) citation of a case which has been ordered depublished. We were taught in an MCLE that the court in Alicia T. v. Cty. of Los Angeles, clearly admonishes and sanctions counsel for their reliance on an unpublished case. The Alicia T. court rejected counsel’s brief because the offensive citation was used for more than the mere form of the brief as counsel used it for proving a key point in their theory. (Alicia T. v. County of Los Angeles, 222 Cal.App.3d 869, 886 (Cal. Ct. App. 1990)
 
In making its argument, if the appellate court wished to rely on a case for stating that it exercised its discretion to address it because it raises a pure question of law and does not require the resolution of disputed factual issues, then shouldn’t the appellate court have cited to “good law” rather than a depublished case?
 
The court in Conservatorship of C.O., cited to Conservatorship of Bryan S. This case when shepardized/keycited clearly states that it is certified for partial publication. The appellate court in C.O.’s case cites to the very section that is ordered depublished.
 
Bryan Forfeited His Timeliness Objection.
** [NOT CERTIFIED FOR PUBLICATION]
B. Bryan Did Not Have a Right To Refuse To Testify Based on Equal Protection Principles.
Bryan next argues that requiring him to testify violated his equal protection rights because others who are subject to different kinds of civil commitments cannot be compelled to testify. Although Bryan again did not raise this issue below, we exercise our discretion to address it because it raises a pure question of law and does not require the resolution of disputed factual issues. We nonetheless reject Bryan's argument on the merits.
 
Conservatorship of Bryan S., 42 Cal. App. 5th 190, 194, 255 Cal. Rptr. 3d 195, 199 (2019), review denied (Mar. 11, 2020)
 
I would contend that when the appellate court in Conservatorship of C.O. cited to the unpublished portion of Conservatorship of Bryan S. to support its issue of the appellate court extending its discretion and hearing issues not raised at the trial court level, it made an error similar to that of counsel in Alicia T. as the court in issuing its opinion relied on (1) a section from a partially published case and (2) used that de published section to support its substantial claims.
 
Under California Rules of Court, rule 18, when a brief fails to comply with the rules the defective brief may be: (a) returned to counsel for correction and redeposited, (b) ordered stricken with leave to file a new brief within a specified time, or (c) considered as if properly prepared.
 
I would presume the third option would be the most likely basis for rebuttal if counsel filed for review of the sixth district’s discretion and chooses to rely on this misapplication of the law as grounds for review. Obviously, a writ of mandamus would not be successful but in a perfect world it were, do you think that the California Supreme Court would apply the abuse of discretion standard given that the lower court had made a discretionary ruling (like whether to allowing an unpreserved claim to be heard despite lack of a trial record)? Generally, because abuse of discretion gives the most deference to the lower court, that court’s decision will not be reversed unless maybe there is a finding of "plain error".
 
 
 
 
 
II.

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Phone: LPS (213) 974-0527
(213) 974- 0407
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Fax: (442) 247-3972


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San Diego, California 92123
Phone: (858) 694-3500 ext 2
© 2017 LPS Conserved   ALL RIGHTS RESERVED.
  • LPS CONSERVATORSHIPS FOR THE GRAVELY DISABLED
    • LPS Conservatorship Court Overview >
      • Public Conservator >
        • Los Angeles Public Guardian
        • CONSERVATORSHIP INVESTIGATION REPORT
        • CAREER >
          • Continuing Education
          • Public Conservator County Numbers '16
          • San Diego Public Conservator '19
        • LPS Conservatorship for Dependent Parents and Minors
      • WHY ARE LPS CONSERVATORSHIP AND PROBATE CONSERVATORSHIPS DIFFERENT
      • Court of Appeals >
        • In re Ben C- Wende Brief no issue writ
      • Trial Court Transcript
      • Conservatorship Legal Documents
      • INITIAL INVOLUNTARY PROCEEDINGS >
        • Grave Disability >
          • Present Grave Disability
        • Venue
        • Conservator's Bond
        • When the Conservatee Goes AWOL
        • Involuntary Commitment
        • Conservatorship Factors
        • Riese Hearing >
          • Riese Hearing
        • Supplemental Security Income/ SSI >
          • Applying for SSI
          • Documents for SSI
          • Process and Appeal
          • Award Letter
          • Rep Payee
          • SSI Amounts 2018/2019
  • LPS Conservatorship Case Law
    • THE ABSOLUTE STATE OF THE COURT OF APPEALS
    • Conservatorship of Isaac O- court report omission and jurisdiction
    • Disparate Treatment- Conservatorship of E.B
    • Conservatorship of KW- hearsay and jury instructions
    • Peremptory Challenges and Conservatorship of Gordon
    • Conservatorship of Sorenson privacy rights and LPS matters
    • Imposition of special disabilities- Conservatorship of Walker
    • Continuing Jurisdiction/Jury Instruction and Conservatorship of McKeown
    • Hearsay and conservatorship of Manton
    • Conservatorship of the Person of S.A.
    • Writ of Habeas Corpus burden of proof
    • Conservatorship of Roulet- burden of proof
    • Special disabilities and due process- Conservatorship of K.G and Donna H.
    • Conservatorship of Davis and Third party assistance
    • Marsden hearings/ due process Conservatorship of David
    • Conservatorship of Torres and admissibility
    • Jury Instruction and Conservatorship of Law
    • Conservatorship of George H- jury instruction
    • Public Conservator's Exclusive Power to Initiate LPS Conservatorship Kaplan v. Superior Court
    • Constitutionality of LPS conservatorship- Conservatorship of Delay
    • Investigation report- Conservatorship of Ivey
    • Conservatorship of Jesse G
    • Grave Disability Standard and Jury trial notice Conservatorship of Benvenuto
    • Conservatorship of Kennebrew vs Conservatorship of Karriker
    • Jury Trial Delays - Conservatorship of Joanne R.
    • Conservatorship of Hofferber- criminal incompetence and LPS
    • "Discretionary abuse" Conservatorship of G.H.
    • In re Elizabeth R- LPS Conserved Parent with a concurrent dependency case
    • Conservatorship of C.O. - Waiver of Jury Trial
    • Conservatorship of Smith and strange behaviour
    • Jury Trials- ​Conservatorship of Jose B
    • Conservatorship of Baber and Double jeopardy and third party evidence >
      • WIP- Conservatorship of Tedesco
      • Conservatorship of Symington (1989)
      • Effective Counsel
      • Faretta and Marsden
      • Exceptions: Third Party Evidence
      • Exclusionary Rule WIP
      • Fifth Amendment Rights
  • LIFETIME PROHIBITOR WELF & INST CODE § 8103 SUBD. (F)(1)(B) 18 U.S.C. § 922 (G) (4)
    • CA MHRS >
      • Armed and Prohibited Person System
    • National Instant Criminal Background Check System (NICS)
    • Registration
  • For LPS Conservatees
    • RIGHT TO APPEAR IN COURT
    • JUDICIAL REVIEW >
      • WRIT OF HABEAS CORPUS
    • NOTICE
    • MEDICATION
    • PLAN OF CARE IF DISCHARGED
    • RIGHT TO COUNSEL
  • BUILDING A STRONG CASE FOR CONSERVATORSHIP
    • POWERS OF CONSERVATOR >
      • Placement Powers
      • Medication powers
    • WHY ONLY THE PUBLIC CONSERVATOR IS ALLOWED TO FILE FOR LPS CONSERVATORSHIP
    • SERVING AS CONSERVATOR
    • DSM V DIAGNOSIS LIMITS
    • CONSERVATEE INTERVIEW
    • HISTORY OF DECOMPENSATION AND LACK OF INSIGHT
    • WRAPPING IT ALL TOGETHER AND CREATING THE NEXUS BETWEEN SYMPTOMS, HISTORY, COMPLIANCE, THIRD PARTY ASSISTANCE TO PROOF OF CURRENT GRAVE DISABILITY BEYOND A REASONABLE DOUBT
  • JUVENILE DEPENDENCY
    • FAST TRACK DEPENDENCY
    • DEPENDENCY APPEALS
    • DETENTION
    • JURISDICTION DISPOSITION (JURIS/DISPO)
    • §366.26 Hearing: Selection and Implementation
    • 730 Evaluators
    • Case Plan
  • New Updates
    • Right to Choose