LPS MENTAL HEALTH CONSERVATORSHIP
  • LPS CONSERVATORSHIPS FOR THE GRAVELY DISABLED
    • ABOUT YOURS TRULY
  • 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
  • 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
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      • Involuntary Commitment
      • Conservatorship Factors
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        • Riese Hearing
      • Supplemental Security Income/ SSI >
        • Applying for SSI
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        • Process and Appeal
        • Award Letter
        • Rep Payee
        • SSI Amounts 2018/2019
  • For LPS Conservatees
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  • BUILDING A STRONG CASE FOR CONSERVATORSHIP
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      • Medication powers
    • WHY ONLY THE PUBLIC CONSERVATOR IS ALLOWED TO FILE FOR LPS CONSERVATORSHIP
    • SERVING AS CONSERVATOR
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    • 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
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In re Ben C.

In LPS proceedings normal Wende briefs do not apply. To address this gap, the court turns to Ben C. In the case of a criminal defendant or juvenile dependency case, the court allows for Wende Briefs or Sade C brief which are no issue briefs. The court allows appellate counsel to refuse to represent a defendant when they believe that there is no meritorious issue. The conservatee contests that he was denied due process when he sought review of a judgement from the court of appeal and was denied. Supreme court decided that Wende procedure extends to LPS conservatorship and affirmed the appellate court's decision. 

Appellant at the time suffered from schizoaffective disorder. His disorder prevented him from maintaining his basic needs of food, shelter, and clothing. He was most recently detained and a permanent conservatorship was established over his person and the least restrictive placement set at closed, locked treatment facility pursuant to Welf and Inst Code §§ 5008, subd. (h)(1)(A), 5350. Conservatee filed a timely appeal with the appellate court.

Conservatee's appointed appellate counsel gave notice to the court of appeal that it did not find any appealable issues in re Anders, supra, 386 U.S. 738 and Wende, supra, 25 Cal.3d 436. Appellate counsel asked the appellate court to independently review the record. The Court of Appeal appointed conservatee new counsel and requested briefing on the applicability of Anders/Wende procedures to LPS conservatorship.

The court of appeal found that Anders/Wende procedure is inapplicable to LPS conservatorships and declined independent review and affirmed the judgment. Conservatee filed an appeal with the supreme court. The supreme court of California affirmed the judgment of the lower court and provides its reasoning.



The supreme court reasons that in re Anders, supra, 386 U.S. 738, the responsibility of appellate court and counsel when counsel concludes there are no meritorious issues in a criminal defendant’s first appeal as a matter of right. “[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that 3 might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court— not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” (Id. at p. 744.)2 Wende, supra, 25 Cal.3d 436 provided a 

​https://cases.justia.com/california/supreme-court/s126664.pdf?ts=1396114568







 It is undisputed that appellant Ben C. suffers from a bipolar schizoaffective disorder. Evidence below established that he believed his food was being poisoned, causing his mental problems. As a consequence, he refused to eat and lost 21 pounds in a month. He also refused to take his antipsychotic medications, assaulted his father and grandmother, experienced hallucinations, masturbated publicly, and sexually assaulted female staff and patients. After a bench trial, the court found that appellant was gravel

Procedural Posture
Appellant, an individual suffering from bipolar schizoaffective disorder who was placed under a conservatorship pursuant to California's Lanterman-Petris-Short Act, Welf. & Inst. Code, § 5000 et seq., sought review of a judgment of the Court of Appeal, Fourth Appellate District, Division One (California), which upheld the trial court's conservatorship decision.


Overview
The trial court found that the individual was gravely disabled and unable to provide for his basic needs and that the least restrictive level of placement was a closed, locked treatment facility. Appointed counsel advised the court of appeal that he found no issues to raise. The court of appeal held that the Anders/Wende procedures for frivolous appeals were inapplicable and affirmed the judgment without performing an independent review. In affirming, the court stated that the Anders/Wende procedures were not required in appeals fromconservatorship proceedings because a conservatee was not a criminal defendant and the proceedings were civil in nature. The absence of the Anders/Wende procedures did not significantly increase the risk of erroneous resolutions. The court discussed the safeguards inconservatorship proceedings and concluded the trial court's ongoing supervision provided sufficient protection. An equal protection claim lacked merit because criminal defendants and conservatees were not similarly situated. The court disapproved Conservatorship of Margaret L., 89 Cal. App. 4th 675 (2001) and Conservatorship of Besoyan, 181 Cal. App. 3d 34, 226 Cal. Rptr. 196 (1986).


Outcome
The court affirmed the judgment of the court of appeal.


In an indigent criminal defendant’s first appeal as a matter of right, the Court of Appeal must independently review the record if appointed counsel represents he or she has found no arguable issues. (Anders v. California (1967) 386 U.S. 738 (Anders); People v Wende (1979) 25 Cal.3d 436 (Wende).) We here consider whether the federal or California Constitution requires Anders/Wende procedures in an appeal from the imposition of a conservatorship under the Lanterman-Petris-Short Act (LPS Act) (Welf. & Inst. Code § 5000 et seq.).1 We conclude neither constitution so requires and we decline to extend the procedures under our inherent authority. 



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510 S Vermont Ave, 14th Floor 
Los Angeles, California 90020 
Phone: LPS (213) 974-0527
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5925 Hollywood Blvd 
Los Angeles, California 90028 
Fax: (442) 247-3972


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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
    • ABOUT YOURS TRULY
  • 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
  • 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
  • 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
  • MAKING SENSE OF THE RULES OF EVIDENCE AND PRESENTING YOUR EVIDENCE AT TRIAL
  • 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