Conservatorship of C.O. - Waiver of Jury Trial
Conservatee had a court trial in which the trial court found appellant C.O. 1 to be gravely
disabled under Welf. & Inst Code, § 5000 et seq. The court reappointed the public guardian as conservator of appellant’s person. Appellant filed a timely notice of appeal citing that the trial court failed to advise him of his right to a jury trial, this advisement was not made on record, and his counsel not obtain from him a personal waiver of his right to advisement. Conservatee asserts the trial court violated his due process right and this error was prejudicial.
Facts of the case
Conservatee was facing a hearing for reestablishment of conservatorship. The trial court had issued a written citation for conservatorship served on conservatee by certified mail. The citation stated inter alia: “You have the right to a court or jury trial on the issue of grave disability and the request for a jury trial must be made within five days of the hearing”. Upon receipt of this notice, the conservatee did not request a jury trial.
On the day of the hearing, before conservatee was present in the courtroom, counsel stated on the record that he had spoken to all of his clients, informed them of their right to be present, their right to a jury trial. And unless otherwise stated, they've waived these rights. Counsel then stated he would get the conservatee who was right outside. Once conservatee was in the courtroom, his attorney stated “I've had a chance to speak with [conservatee] a couple of times before today's court hearing. And at this time he is requesting a [bench] trial. It looks like we have discussed the possibility of doing that on May 23rd . And that would be our request”. The trial court set the matter for a bench trial. At this hearing, the trial court did not advise conservatee on the record of his right to a jury trial or obtain a personal waiver of that right.
The trial court conducted the bench trial one month later. Neither conservatee or his counsel requested a jury trial or objected to the bench trial. The public guardian presented its two witnesses, an expert psychologist and conservatee himself. Counsel cross-examined both the expert and conservatee. At the conclusion of the bench trial, the trial court stated that it found beyond a reasonable doubt, that the conservatee had been advised in writing of his right to a jury trial and he meets the criteria gravely disability under Welf & I C § 5008 subdivision (H)(1)(A).
Conservatee filed his timely notice of appeal citing that the trial court had violated his rights to due process as it had failed to notice him of his right to jury trial and failed to obtain a personal waiver. Conservatee argues that these errors are prejudicial and require reversal of the judgment. The public guardian contends no error was made and that the Conservatee’s appeal is moot given the time limits of the conservatorship. The public guardian claims Conservatee forfeited his challenges by failing to raise them during the process of the bench trial.
The court of appeal affirmed the trial court’s judgement and provided its reasoning for each assertion seriatim.
First the appellate court may hear a case even if it is moot. Although LPS Conservatorship terminates after 1 year (unless reestablished) by operation of the law, the appellate court may review an LPS Conservatorship appeal if the conservatee raised issue[s] that are capable of repetition but keep evading review. The court of appeal decided that the issues raised are of enough importance that the court of appeal should review the matter even if the conservatorship had terminated by the time oral arguments are heard and a remittitur issued.
Arguments could be made that this issue had not evaded review**
The public guardian argues conservatee forfeited his jury trial claims because he failed to raise them during the process of the bench trial and fully participated in the trial without a single objection. Conservatee acknowledges this fact and the trial court record supports the public conservator’s assertion.
The record or lack of a record does show that the conservatee forfeited the right to present a claim of error to the appellate court as he did not do enough via objections to prevent or correct the error of the trial court. However, the appellate court exercised its discretion to address the appeal on its merits citing that conservatee raised a legal issue subject to de novo review and heard the matter.
The conservatee shall have the right to demand a jury trial on the issue of gravely disability. The conservatee must make the demand for jury trial within five days following the initial hearing. If the conservatee demands a jury trial before the date of the first hearing, their demand shall constitute a waiver of the initial hearing. Jury trial shall start within 10 days of the date of the demand. This applies for subsequent re establishment hearings.
Additionally, the trial court must inform the proposed conservatee or consult the proposed conservatee to determine the conservatee's opinion regarding the establishment of the conservatorship and notice them of their right to have the matter tried by jury. Prob. Code, § 1828, subd. (a)(6).
Prior case law has addressed this question; however, this case presents a unique factor ___.
In certain circumstances a conservatee's counsel may waive the conservatee's right to jury trial without their in person consent. In re Conservatorship of Maldonado (1985) 173 Cal.App.3d 144, 218 Cal.Rptr. 796 the court held that counsel had the authority to waive a proposed conservatee's right to jury trial and the trial court was not obligated to obtain a personal waiver from the conservatee. The court decided that civil procedure determines whether a conservatee has waived the right to a jury trial and specifically stated jury trial may be waived by oral consent, in open court, entered in the minutes or docket. The court stated that an attorney has authority to bind his client in any of the steps of an action or proceeding by his agreement entered upon the minutes of the court. (Code Civ. Proc., § 283.)
When a statutory right in a civil commitment scheme is at issue, the proposed conservatee may waive the right through counsel if no statutory prohibition exists. Simply stated, the conservatee may inform his counsel of his right to waive right to a jury trial and counsel’s restatement of such to the court is rightfully binding.
In the same vein, the court reasoned that a conservatee who tells his appointed attorney he is unwilling to attend the hearing and does not wish to contest a LPS conservatorship can expect his attorney to report such information to the court and this constitute as a binding wavier of rights.
The conservatee’s counsel via a parity of reasoning attempted to show that LPS Conservatees were similarly situated with mentally disordered offenders facing civil commitment. Counsel cited to People v. Tran (2015) 61 Cal.4th 1160, 191 Cal.Rptr.3d 251, 354 and People v. Blackburn (2015) 61 Cal.4th 1113, 191 Cal.Rptr.3d 458, 354 P.3d. Due to the criminal processes underlying both of these cases, the courts found that the trial court must provide on the record an advisement of the right to a jury trial and must secure a personal waiver of the right to a jury trial from the committed persons.
“[t]he trial shall be by jury unless waived by both the person and the district attorney.”
Additionally, in these two cases the Supreme Court emphasized the criminal procedural protections in both MDO and NGI statutory schemes. These commitment schemes are described as something of a hybrid, a civil hearing with criminal procedural protections. These hearings rely on codes setting forth several procedural protections generally available only in the criminal context.
The next issue the appellate court reviews is the notion of pari materia. Pari materia is the concept that when two different statues are codified at different times but pertain to the same subject, the court should analyze and interpret them in light of each other as they both target the same concept.
Because conservatee’s counsel raises the issue of Probate Code § 1828(a)(6) which:
The court shall inform the proposed conservatee of all of the following:
(6) The proposed conservatee has the right to oppose the proceeding, to have the matter of the establishment of the conservatorship tried by jury, to be represented by legal counsel if the proposed conservatee so chooses, and to have legal counsel appointed by the court if unable to retain legal counsel.
Both counsel and the appellate court interpret this to mean that the trial court needs to directly advise the proposed LPS conservatee on the record during the course of a court proceeding of his or her right to have the matter of the establishment or reestablishment of LPS Conservatorship tried by jury trial. Although the appellate court reasoned that this case differed from the MDO cases, it still reasoned that notice of jury trial by certified mail alone is not enough to constitute proper notice.
The appellate court indirectly reasoned that the court clerk was not the same as the bench officer and therefore the court did not satisfy this requirement under (a)(6).
However, there is no indication in Probate Code section 1828 that the clerk's provision of the written citation satisfies the separate procedural safeguard afforded by section 1828(a)(6), that the court “shall inform the proposed conservatee of the right to have the matter of the establishment of the conservatorship tried by jury.” (Prob. Code, § 1828(a)(6).)
Now that appellate trial has determined that the code indicates that the trial court needs to directly advise a proposed conservatee of his or her right to a jury trial, it turned its attention to whether the trial court’s acceptance of counsel’s waiver on behalf of the conservatee was error.
The court shall accept counsel’s waiver of jury trial on behalf of the conservatee if there is no evidence that suggest that counsel lacked authority, disregarded his client's wishes, or that the conservatee was unaware of his right to trial by jury.
The court may also find notice has been waived if the attorney of the conservatee shows that the conservatee does not want to attend the hearing to establish conservatorship and does not oppose the conservatorship.
The issue of whether the conservatee had knowingly and intelligently waived his presence and jury trial rights is a question of fact in that it may not be presumed that a person found gravely disabled is incompetent to waive their rights.
The trial court record indicates that the conservatee was present when his attorney informed the court that he wanted a bench trial. Also, conservatee and his counsel had previously spoken several times about the option of a bench or jury trial and there was no evidence that conservatee lacked an understanding of those differences.
C.O. also asserts that the trial court violated his due process and equal protection rights as he should be afforded the same due process rights as a criminal defendant. However, the appellate court disagreed and stated that although the liberty interest at stake in conservatorship proceedings “implicates due process concerns” they do not agree that the trial court's failure to obtain a personal waiver on the record violates constitutional due process right.
To satisfy the similarly situated standard the appellant must show that he belongs to a class where there two or more groups that are properly distinguishable for purposes of challenged law but they are indistinguishable in other respects.
Appellant asserted that LPS Conservatees are similarly situated with criminal defendants in regard to the consequences of LPS Conservatorship and deprivation of due process rights.
The court observed in an LPS commitment all the procedural safeguards afforded in criminal proceedings are not applicable as LPS defendants are not in the same class as criminal defendants.
As much as the private interests at stake are weighty and deserving of protection, the stated purposes of the LPS Act foreclose any argument that an LPS commitment is equivalent to criminal punishment in its design or purpose. Because of their differing objectives, “the analogy between criminal proceedings and proceedings under the LPS Act is imperfect at best and ... not all of the safeguards required in the former are appropriate to the latter”.
The trial court's acceptance of conservatee's personal waiver of right to jury trial without direct advisement may be harmless if the trial court record shows, based on the totality of circumstances, that the waiver was knowing and voluntary. The appellate court found that the trial court record indicates the waiver was knowing and voluntary.
The trial court's error in failing to advise proposed conservatee personally, on record, of his statutory right to jury trial was harmless as the totality of the circumstances show that the testimony by both conservatee and expert psychologist supported the conclusion that conservatee remained gravely disabled and there was nothing in record suggesting that conservatee would have elected a jury trial if personal advisement of right had been given.
Based on this the appellate court affirmed the trial court’s decision.