Conservatorship of Richard R. CA4/1

Filed 1/16/14 Conservatorship of Richard R. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Conservatorship of the Person of
RICHARD R.
D063837
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,

Petitioner and Respondent, (Super. Ct. No. MH98305)

v.

RICHARD R.,

Objector and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Joseph P.

Brannigan, Judge. Affirmed.

Neil R. Trop, under appointment by the Court of Appeal, for Objector and

Appellant.

Thomas E. Montgomery, County Counsel, and George Seikaly and Christina I.

Vilaseca, Deputy County Counsel, for Petitioner and Respondent.
 Richard R. appeals from a judgment reestablishing conservatorship of his person

under the Lanterman-Petris-Short Act (LPS Act or Act). (Welf. & Inst. Code, § 5000 et

seq.) He contends the court violated Probate Code section 1825, subdivision (a),1 which

mandates that he be "produced at" his conservatorship reestablishment hearing, when it

denied his request to appear in person and held the hearing with Richard participating via

videoconference from Santa Cruz, California. He further contends the court's ruling

violated his due process rights under the United States Constitution. We conclude any

error was harmless and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Background Facts

Richard is an adult male in his mid-50's who has suffered from mental illness since

he was 15 years old. His mental illness history includes schizophrenia, psychosis, and

chronic paranoia. He has been hospitalized at least 28 times since 1992 and has

demonstrated poor compliance with treatment plans when he is outside of a structured

and locked environment. Richard is in denial of both his mental condition and his need

for medication and has indicated that he will not continue taking his medication once he

is released from a locked facility.

Richard's mental illness manifests itself in several different ways. He experiences

illogical thoughts, confusion about the days of the week, delusions, time distortion, hears

radio broadcasts from the Federal Bureau of Investigation and Central Intelligence

1 Unless otherwise indicated, all further statutory references are to the Probate
Code.
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Agency in his head, and is assaultive against others. As a result of his mental illness and

its manifestations, he has had difficulty caring for himself, has missed meals and has to

be reminded to perform routine activities of daily living.

As a result of the above, Richard has been under continuous conservatorship since

May 26, 2005. Since 2008, he has lived predominantly in locked mental health

institutions such as the Metropolitan State Hospital and 7th Avenue Center in Santa Cruz,

where he currently resides. However, in or around June 2012, Richard lived in Opal Cliff

Residential Center (Opal Cliff), a residential board and care facility in Santa Cruz.

Within a few months, Richard assaulted a caregiver who tried to administer his

medication and was admitted to an acute psychiatric hospital as a result. When he

returned to Opal Cliff, he assaulted the center's administrator by biting him, was again

admitted to an acute care hospital, and was then placed at the 7th Avenue Center, where

he has been since.

On January 24, 2013, the San Diego County Health and Human Services Agency,

through the Office of the Public Conservator (the public conservator), filed a petition to

reestablish conservatorship of Richard's person on the basis that he remained gravely

disabled and was unable to provide for his basic needs of food, clothing, and shelter. The

public conservator sought to place Richard in an unlocked, open treatment facility and to

impose various disabilities upon him.

II. Procedural Background

Since 2005, the San Diego County Public Defender and public conservator have

operated under an understanding that allows for proposed conservatees who are

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physically outside San Diego County to appear at hearings by videoconference.

However, on March 19, 2013, Richard's counsel objected and requested Richard be

physically present at the hearing to reestablish his conservatorship. After the parties

briefed the issue and the court heard argument, the court denied Richard's request.

On April 9, 2013, the court held a hearing on the public conservator's petition to

reestablish conservatorship of Richard, who appeared by videoconference as the court

previously ordered. Based on Richard's testimony, a "Medical Recommendation &

Declaration for Reestablishment of Conservatorship" signed by two psychiatrists in Santa

Cruz, and testimony from the public conservator's staff forensic psychologist,2 the court

found beyond a reasonable doubt that Richard continued to be gravely disabled,

reappointed the public conservator as conservator of his person, and ordered him to

remain in a closed and locked treatment facility until at least April 9, 2014.

On appeal, Richard contends the court's denial of his request to be physically

present at the hearing violated his due process rights under the Constitution and his

statutory rights under section 1825, subdivision (a).

2 The public conservator's forensic psychologist, Alma Carpio, Psy.D., interviewed
Richard via videoconference and reviewed a statement of facts prepared by the public
conservator's office. Dr. Carpio's recommendations largely aligned with the two
psychiatrists in Santa Cruz, except that she recommended Richard be confined to a closed
and locked facility while the Santa Cruz doctors recommended Richard be placed in an
open, intermediate care facility. Dr. Carpio so recommended in part because Richard had
"a significant history of noncompliance with medication when placed at lower levels of
care."
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 DISCUSSION

I. Judicial Notice

As an initial matter, the public conservator asks us to take judicial notice of two

documents. The first document is the public conservator's general policies and

procedures for placing conservatees outside of San Diego County. The second document

is a purported excerpt from a countywide memorandum prepared in 2006 by a manager

who worked at the public conservator's office. We deny the public conservator's request

for judicial notice.

The public conservator contends we may take notice of these documents under

Evidence Code section 452, subdivision (h), which allows judicial notice of "[f]acts and

propositions that are not reasonably subject to dispute and are capable of immediate and

accurate determination by resort to sources of reasonably indisputable accuracy."

However, we need not take notice of matters that were not presented to the trial court.

(Haworth v. Superior Court (2010) 50 Cal.4th 372, 379.)

Here, the record does not establish that the public conservator submitted either

document in support of its briefing before the trial court. Nor does the public conservator

contend it previously proffered these documents to the trial court. Accordingly, we

decline to take judicial notice of the documents the public conservator presents for the

first time on appeal.

II. Probate Code Section 1825

Richard contends section 1825's unambiguous language required his physical

presence at the reestablishment hearing. The public conservator contends section 1825 is

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ambiguous and allows for conservatees' virtual presence at hearings using

videoconferencing technology. Without deciding whether the trial court erred, we

conclude that any assumed error was harmless.

The LPS Act governs the involuntary detention, evaluation, and treatment of

persons who, as a result of mental disorder, are dangerous or gravely disabled. (Welf. &

Inst. Code, § 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 (Welf. & Inst. Code,

§ 5350 et seq.), so that he or she may receive individualized treatment, supervision, and

placement (id., § 5350.1). 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." (Welf. & Inst. Code, § 5008, subd. (h)(1)(A).)

Although the Act makes no express mention of a specific requirement for the presence of

a proposed conservatee at a hearing to establish a conservatorship of the person, it

mandates that LPS conservatorships shall be established pursuant to the procedure set

forth in the Probate Code. (Welf. & Inst. Code, § 5350.) In turn, Probate Code section

1825, subdivision (a) provides that "[t]he proposed conservatee shall be produced" at the

hearing to establish a conservatorship, subject to three exceptions that do not apply here.

We review the trial court's interpretation and application of section 1825 de novo.

(Conservatorship of John L. (2010) 48 Cal.4th 131, 142.) However, error in the denial of

a statutory right is subject to the harmless error analysis of People v. Watson (1956) 46

Cal.2d 818. (People v. Epps (2001) 25 Cal.4th 19, 29; D.E. v. Superior Court (2003) 111

Cal.App.4th 502, 513-514.) Before any judgment can be reversed for error under state

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law, it must appear that the error complained of "has resulted in a miscarriage of justice."

(Cal. Const., art. VI, § 13; see Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801.)

This means that reversal is justified "when the court, 'after an examination of the entire

cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a

result more favorable to the appealing party would have been reached in the absence of

the error." (Watson, at p. 836.)

Here, without deciding whether proposed conservatees in LPS proceedings have a

statutory right under section 1825 to be physically present at conservatorship hearings,

we conclude that any violation of the right in this case was harmless. On the record

before us, the evidence of Richard's continued grave disability was overwhelming. At the

time of the reestablishment hearing, he had been under conservatorship for several years,

two physicians in Santa Cruz opined that he continued to be unable to care for himself,

and a third doctor opined the same and testified as the public conservator's witness.

Richard also did not present any credible evidence that contradicted his continued gave

disability. Moreover, Richard had physically assaulted two persons during his then-most-

recent conservatorship period when he briefly resided at a lower level care facility. Other

compelling evidence before the court included his history of institutionalization and

conservatorship, continuing diagnosis and resulting manifestations, and his stated desire

to discontinue his medications. Thus, even if Richard had been physically present at the

hearing, he could not have obtained a more favorable result.

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 III. Due Process

In conservatorship cases, conservatees are entitled to certain due process

protections, and "we balance three factors to determine whether a particular procedure or

absence of a procedure violates due process: the private interests at stake, the state or

public interest, and the risk that the procedure or its absence will lead to erroneous

decisions." (Conservatorship of John L., supra, 48 Cal.4th at p. 150.) In reviewing

constitutional error in civil commitment proceedings, we apply the test in Chapman v.

California (1967) 386 U.S. 18 that "federal constitutional error is reversible unless shown

to be harmless beyond a reasonable doubt . . . ." (People v. Hurtado (2002) 28 Cal.4th

1179, 1194.)

Here, we do not decide whether videoconferencing in general or as applied in this

case violated due process. For the reasons explained above, any error in denying Richard

his due process rights at the reestablishment hearing was harmless beyond a reasonable

doubt. In light of the overwhelming evidence at the hearing, we have no doubt the court

would have reestablished conservatorship over Richard had he been physically present.

DISPOSITION

The judgment is affirmed.

NARES, J.
WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.

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