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      • WHY ARE LPS CONSERVATORSHIP AND PROBATE CONSERVATORSHIPS DIFFERENT
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  • 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)
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    • POWERS OF CONSERVATOR >
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    • 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

10/29/2018

Waiver of Jury trial

1 Comment

Read Now
 
 Proceedings Below Immediately following a hearing held pursuant to People v. Marsden (1970) 2 Cal.3d 118, in which the court denied Kevin A.‟s apparent request to replace his attorney, the following colloquy occurred:


“THE COURT: [L]et‟s go ahead. I do believe the other parties are back here. They may come back into court now that we‟ve had this confidential hearing. “Okay. We‟re going back on record with all parties present here in the matter of the conservatorship of
​

[Kevin A.] [¶] …[¶] … I think we‟re ready to proceed. The matter was assigned to this court for a jury trial. “But, [conservatee‟s counsel], you wish to be heard on that—that issue.

“[CONSERVATEE‟S COUNSEL]: Yes, your Honor. I‟m prepared to enter a waiver of jury trial at this point and have a court trial in this case. And I have the authority of People vs.—Conservatorship of Maldonado, 173 Cal.App.3d 144. “THE COURT: Okay. 6.

“[CONSERVATEE‟S COUNSEL]: I‟m sorry. Yes. I‟d like to enter waiver of jury trial pursuant to the case of Conservatorship of Maldonado. “

THE COURT: [Does] petitioner wish to be heard on that issue?

“[PUBLIC CONSERVATOR‟S COUNSEL]: We have no objection to waiving the jury trial today, your Honor.

“THE COURT: Okay. [Kevin A.]

“[KEVIN A.]: I—I would like a full jury trial, please, your Honor, for today.

“THE COURT: What‟s your position with regard to your client‟s wish, [conservatee‟s counsel]?

“[KEVIN A.]: Denial of due process. “

[CONSERVATEE‟S COUNSEL]: I believe that because the jury trial right in this case is a statutory right, it could be waived by counsel. It could be waived by [Kevin A.]‟s attorney. “

THE COURT: I take it, you know, goes without saying that you believe what‟s in your client‟s best interest to waive statutory right to jury trial under the circumstances that exist at this time. “

[CONSERVATEE‟S COUNSEL]: Yes, your Honor.

“THE COURT: Okay. I‟m going to grant the waiver. My understanding is for conservatorship proceedings, it‟s a statutory right, and it‟s counsel‟s determination that it‟s in his client‟s best interest to do so; so, I find that that‟s a valid waiver, and I‟ll grant that waiver. “

[KEVIN A.]: It‟s—it‟s invalid. Your Honor, for a clarifying question—can I ask a clarifying question?

“THE COURT: Talk to your attorney …. “

[KEVIN A.]: I can‟t ask a clarifying question? “THE COURT: You cannot, sir. “

[KEVIN A.]: Okay. “

THE COURT: Do you want to take a break, talk to your lawyer. 

“[KEVIN A.]: I had a quick question. Don‟t take a break. Just one question. “Your Honor, he doesn‟t makes [sic] sense. He says I don‟t have a constitutional right to a jury trial. What are we here for? I don‟t have the constitutional right to have a trial? Why am I here? “

THE COURT: Because we‟re going to have a trial in front of the Court; not a jury. “

[KEVIN A.]: He said I have a constitutional right to have a jury. Why am I not— “

THE COURT: No, you do not.

“[KEVIN A.]: I do not have a constitutional right? “

THE COURT: You only have a right by California statute, sir. That statutory right is different from a constitutional right and may be waived by your attorney if he feels it‟s appropriate to do so. [He] has made that determination, so the Court has accepted that.”


  1. Alternatively, if the Court determines that there is substantial evidence that the proposed conservatee lacks the capacity to decide whether to proceed before a jury, the control of the decision whether to demand or waive the right to a jury belongs to the proposed conservatee’s attorney, despite the proposed conservatee’s objection.
  2. Regardless of the fact that a proposed conservatee suffers from mental illness or related disorders, those conditions preclude any categorical inference that the proposed conservatee is unable to make a decision regarding whether to demand or waive a jury trial.

The purpose of this is in the case a conservatee lacks capacity to make such decisions. If the conservatee demonstrated out of control behaviour such as yelling and fighting it would not be in his best interest to have a jury trial. The jury would see that he is mentally ill to the point of incapacitation, However, there are many cases where the conservatee may be denied a jury trial. The court deferrs to the judgement of the patient's counsel if the court deems that the conservatee is too ill to make their own decisions. However, I disagree citing that the conservatee should have a basic right to a jury trial. It is not as if the jury trial means an automatic win for the conservatee. The conservatee should be allowed to present their case in front of a jury should the judge be bias or their counsel is ineffective. In ambiguous cases what determines a conservatee unfit to enter a preference for a jury trial or not? Is there a standard of proof for determining this and should there be one if not? What degree of mental illness symptoms do they need to exhibit before their right to express an interest in whether they want a jury trial is withheld. In this case the order establishing a conservatorship over his person was reversed but what about the many cases where it is a very grey line between sane enough to make such decisions. Also in the case of public defenders how well do they know their client to make such a decision. Due to such a high case load they only get a few minutes to meet with their clients. 


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1 Comment
Peter
11/27/2018 10:31:44

The Judge and your Public Defender may try and talk you out of Jury Trial. Do not let them intimidate you, a Jury Trial is your best chance of having someone actually listen to the case. However, be prepared for the Judge, County Counsel, and Public Defender to try and limit any evidence presented to the Jury to only the bad things you have done. It will be up to you to emphasize how you can care for yourself, do not get upset in front of the jury when they start trying to limit what you say, and when the Judge tries to stop you from speaking say that you would like to explain to the Jury how you can care for yourself (say this loud enough so the Jury can hear).

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


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Phone: (619) 844-2700



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Office of the Public Conservator

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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