Conservatorship of the Pers. v. And

50 Cal.App.5th 963

264 Cal.Rptr.3d 500

CONSERVATORSHIP OF the Person and Estate of JOSE B.

Public Guardian of the County of Los Angeles, as Conservator, etc., Petitioner and Respondent,

v.Jose B., Objector and Appellant.

B292172

Court of Appeal, Second District, Division 7, California.

Filed June 18, 2020

Christopher Lionel Haberman, Visalia, under appointment by the Court of Appeal, for Objector and Appellant.

Mary C. Wickham, County Counsel, Joyce M. Aiello, Assistant County Counsel, and William C. Sias, Deputy County Counsel, for Petitioner and Respondent.

FEUER, J.

Jose B. is a conservatee subject to a conservatorship under the Lanterman-Petris-Short (LPS) Act ( Welf. & Inst. Code,¹ § 5000 et seq. ). In 2008 the trial court appointed the Los Angeles County Office of the Public Guardian (Public Guardian) as Jose's conservator, finding Jose was gravely disabled as a result of a mental disorder. For the following 10 years Jose did not object to the annual reappointment of Public Guardian as his conservator. On February 28, 2018 Public Guardian filed a petition for reappointment as Jose's conservator on the ground Jose continued to be gravely disabled. This time, at a March 15, 2018 hearing, Jose contested the petition and demanded a jury trial. Although section 5350, subdivision (d)(2), provides a "[c]ourt 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 trial court set the matter for jury trial readiness almost two months later, on May 24, 2018. After two additional continuances, the trial commenced on July 30, 2018, 137 days after Jose's jury trial demand.

On appeal, Jose contends the trial court violated section 5350, subdivision (d)(2), and denied him due process by failing to commence the jury trial within 10 days of his demand for trial. We are deeply troubled by the significant delay of over four months in holding a trial on Jose's petition, especially given the lack of any justification by the court for most of the delay. Jose contends trials on conservatorship petitions are routinely continued by the trial courts in violation of the 10-day requirement. Although the record does not reflect whether this is true, we emphasize the statutory obligation of trial courts to hold a jury trial within 10 days, with only a limited exception for a 15-day continuance if requested by the proposed conservatee.

However, the trial court's failure to commence trial within 10 days of Jose's jury trial demand does not support dismissal of the petition. The time limit in section 5350, subdivision (d)(2), is directory, not mandatory, because the Legislature has not expressly provided for dismissal of the conservatorship petition if a trial is not held within 10 days. Further, given the lack of prejudice to Jose, who does not challenge the jury's finding he was gravely disabled or claim he did not receive a fair trial, he was not denied due process. This does not mean trial courts should blithely continue conservatorship trials for their judicial convenience. The trial court should state on the record its justification for continuing a trial beyond the statutory deadline. If a proposed conservatee contends he or she has been prejudiced by the delay, the proper remedy is to file a motion to dismiss for lack of a speedy trial. Jose did not do that here. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Jose's Conservatorship

On March 6, 2008 Public Guardian filed a petition for appointment as Jose's conservator pursuant to section 5008, subdivision (h)(1)(A) and (B).

The petition alleged a medical doctor had determined Jose was gravely ill. The declaration in support of the LPS conservatorship stated Jose had schizophrenic disorder and was unwilling and unable to accept voluntary treatment. On April 4, 2008 the trial court granted the petition, finding Jose was "gravely disabled as a result of a mental disorder." On April 18 the trial court entered an order and letters of conservatorship, appointing Public Guardian as the conservator of the person and estate of Jose. For the next 10 years Jose did not object to the annual renewal of the LPS conservatorship.

B. The Petition for Reappointment and Pretrial Proceedings

On February 28, 2018 Public Guardian filed a petition for reappointment as Jose's conservator. The petition alleged Jose continued to be gravely disabled as a result of his mental disorder. The petition stated the conservatorship would automatically terminate on April 3, 2018 unless the trial court reappointed the conservator.

At the March 15, 2018 hearing, Jose contested the petition and demanded a jury trial. The attorney representing Jose indicated Jose's assigned attorney was not available the first two weeks of April. The trial court responded, "Right. I understand. So the jury trial demand is entered; that will be—this is on a reappointment.... [S]o set it for May 24, 2018 for a jury trial ...." Jose's attorney then asserted, "We're objecting to the length of time." The court responded, "All objections are reserved." Another attorney representing Jose asked, "So we are just putting it over for that?" The court replied, "Right.... Transportation and charts that day. All right. So we're going to have you come back in May and we'll set the jury trial." Jose answered, "All right." Jose's attorney inquired, "That's for jury trial?" The court replied, "That's for jury trial readiness."

At the May 24, 2018 jury trial readiness hearing, Jose's attorney stated, "So, Your Honor, we are ready; however, I'm not available next week, and I won't be available really until after the 15th." The trial court responded, "Of June. Okay. So we'll set it for a jury trial readiness ... continue the jury trial for July 23rd, 2018 at 1:30 p.m. Jury trial ... readiness July 19th. We need transportation and charts that day. All right. All objections are noted."

At the July 19, 2018 hearing, the trial court set the jury trial for Monday, July 30. The trial court then inquired of Jose's attorney, "[Y]ou want to set it for the following week for the Monday or the Thursday?" Jose's attorney responded, "Whenever the court decides it's the earliest possible date." The court replied, "Monday is obviously earlier. Okay. Just that means you will be in solid trial back to back. They are also both of yours ...." Jose's attorney asked, "Do I have a choice?" The court responded, "No, unfortunately. So neither does the court. So July 30th, 2018 will be the trial at 1:30.... All right. We'll have you start trial a week from this Monday."

C. The Jury Trial and Reappointment of the Conservator

The jury trial commenced on July 30, 2018. Daniel McKinney, Ph.D., a clinical psychologist, testified as an expert witness for Public Guardian. Dr. McKinney was the director of the psychology program at Jose's facility and a member of Jose's treatment team. Dr. McKinney testified Jose suffered from schizophrenia and had delusions and auditory hallucinations. Jose told Dr. McKinney he owned an apartment in Downey, two national restaurant chains, a nationwide bank, and a nationwide credit card company. Further, Jose lacked insight into his mental condition because of his delusions. Jose averaged one shower a week and needed prompting to eat meals and to attend group sessions. When Jose went to group sessions, he did not actively participate because he did not see the need for them. Jose was taking psychotropic medication, but he informed Dr. McKinney he would not take his medication once he left the facility. Dr. McKinney opined Jose was gravely disabled and could not treat his mental illness on his own without assistance. Further, Jose could not provide for his own basic needs for food, clothing, and shelter if he left the facility.

Jose testified on his own behalf. Jose stated if he was not in a conservatorship, he would live with his friends or family. He added, "I just want to be left alone in this place because I've been locked up all my life." Jose testified he previously had schizophrenia, but he was no longer suffering from it. He stated, "I get smarter every time I read something, it goes through my mind and I react on it, that's why." Jose said the medication he was taking consisted of salt tablets that made him throw up and say things that were not right. Upon his release he would receive supplemental security income and general relief, as well as a retirement check from the police department once he called them.

On August 1, 2018 the jury found Jose was "presently gravely disabled due to a mental disorder." The trial court granted the petition and reappointed Public Guardian as Jose's conservator.

DISCUSSION

A. The LPS Act

"The LPS Act governs the involuntary detention, evaluation, and treatment of persons who, as a result of mental disorder, are dangerous or gravely disabled. (§ 5150 et seq.) The Act authorizes the superior court to appoint a conservator of the person for one who is determined to be gravely disabled (§ 5350 et seq.), so that he or she may receive individualized treatment, supervision, and placement (§ 5350.1)." ( Conservatorship of John L. (2010) 48 Cal.4th 131, 142, 105 Cal.Rptr.3d 424, 225 P.3d 554 ( John L . ); accord, Conservatorship of K.P. (2019) 39 Cal.App.5th 254, 257, 251 Cal.Rptr.3d 769.) "As defined by the Act, a person is ‘gravely disabled’ if, as a result of a mental disorder, the person ‘is unable to provide for his or her basic personal needs for food, clothing, or shelter.’ (§ 5008, subd. (h)(1)(A).)" ( John L. , at p. 142, 105 Cal.Rptr.3d 424, 225 P.3d 554 ; accord, Conservatorship of E.B. (2020) 45 Cal.App.5th 986, 991, 259 Cal.Rptr.3d 281.) "The party seeking imposition of the conservatorship must prove the proposed conservatee's grave disability beyond a reasonable doubt, and a jury verdict finding such disability must be unanimous." ( John L. , at p. 143, 105 Cal.Rptr.3d 424, 225 P.3d 554 ; accord, Conservatorship of...