Filed 9/23/20 Conservatorship of S.I. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
Conservatorship of the Person 2d Civil No. B303895
of S.I. (Super. Ct. No. 17PR-0324)
(San Luis Obispo County)
PUBLIC GUARDIAN OF THE
COUNTY OF SAN LUIS
OBISPO,
Petitioner and Respondent,
v.
S.I.,
Objector and Appellant.
S.I. appeals from the trial court’s reappointment of
the Public Guardian of the County of San Luis Obispo (Public
Guardian) as his conservator pursuant to the Lanterman-Petris-
Short Act. (Welf. & Inst. Code,1 § 5000 et seq.) S.I. contends: (1)
the court violated his rights to due process, equal protection, and
a fair trial; (2) counsel provided ineffective assistance; and (3) the
court erred when it determined that a licensed board and care
facility was the least restrictive placement. We affirm.
FACTUAL AND PROCEDURAL HISTORY
In September 2019, the Public Guardian petitioned
for reappointment as S.I.’s conservator. At a November 15 bench
trial, Dr. Rose Drago testified that S.I. was gravely disabled due
to his schizoaffective disorder. He did not actively hallucinate,
but could be “very hypomanic,” “very grandiose,” and “paranoid at
times.”
Dr. Drago said that S.I. took a variety of medications.
His compliance with his medication regimen “waxes and wanes.”
He previously refused to take certain prescriptions, was “not
thrilled about” his current medications, and tried to bargain his
way out of taking them. He instead wanted to use the non-
prescription cannabis products that he had used in the past. He
had also previously used methamphetamine. Dr. Drago believed
that S.I. would become homeless and psychotic if he were
released into the community and resumed his drug use.
At the time of trial, S.I. lived in an unlocked,
structured board and care facility, which Dr. Drago opined was
the least restrictive placement for him. He was subject to
restrictions because he had tried to take a bus to San Luis
Obispo. Despite this attempt to “elope,” S.I. was “more or less
stable” at the facility.
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
Dr. Drago said that S.I. wanted to return to Sunny
Acres, where he had been placed previously. He had done well
there initially, but then started using drugs and became unstable
and psychotic. Dr. Drago did not know whether Sunny Acres
would permit S.I. to return.
After Dr. Drago testified, S.I. told the trial court that
he wanted to testify. The court permitted him to do so, and asked
him why he believed he should no longer be subject to a
conservatorship. S.I. replied that he wakes every morning in
prayer, takes a shower, and gets his clothes “nice and clean.” He
cleans his room and shares his possessions with others. He no
longer smokes marijuana.
The trial court asked S.I. about his bus trip to San
Luis Obispo. S.I. said that he knew the trip was a “bad move,”
but he wanted to get a job to show that he could get back on his
feet. He also wanted to visit a radio station because he
appreciated music and considered himself a good musician. He
acknowledged that staff did not give him permission to leave and
did not know that he had done so. He was placed “in-house” once
he returned to the facility from his trip.
The trial court asked S.I. what it should think about
the incident. He replied, “You feel this guy’s gone downhill a
little bit, huh?” The court answered, “Yeah.” The court
continued: “You may not [sic] stay in a conservatorship. You
may not. But at this juncture, I have to say that there is a
sufficient basis for this court to find that you do continue to have
a grave disability.” After a few more questions, the court made
that finding, without permitting counsel to question S.I. or argue
on his behalf. Consistent with Dr. Drago’s testimony, the court
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also found that S.I. could not refuse medical treatment, have a
driver’s license, possess a firearm, or contract in excess of $50.
On December 3, the trial court issued a written order
reappointing the Public Guardian as conservator for the one-year
period commencing December 14, 2019. The order reiterated the
findings made at the November 15 hearing. It also set forth the
Public Guardian’s duties as conservator, stated that there was no
suitable alternative to conservatorship, and said that the least
restrictive and most appropriate level of care for S.I. was a
licensed board and care facility.
S.I. filed a notice of appeal from the judgment on
January 27, 2020.
DISCUSSION
Timeliness of S.I.’s appeal
Before turning to S.I.’s contentions, we first
consider—and reject—the Public Guardian’s claim that S.I.’s
appeal is untimely.
Rule 8.308(a) of the California Rules of Court
provides that a conservatee’s notice of appeal “must be filed
within 60 days after the rendition of the judgment or the making
of the order being appealed.” (See Cal. Rules of Court, rule
8.480(a) [rules 8.304 through 8.368 and 8.508 govern appeals in
conservatorship cases].) In general, this requires a conservatee
to file a notice of appeal within 60 days of the trial court’s oral
pronouncement of its order. (Conservatorship of Ben C. (2006)
137 Cal.App.4th 689, 695.) Here, however, the court’s written
order—filed December 3, 2019—included several provisions not
included in its November 15 oral pronouncement: the
appointment of the Public Guardian as conservator, the scope of
the Public Guardian’s duties, the finding that there was no
4
suitable alternative to conservatorship, and the finding that the
least restrictive placement for S.I. was a licensed board and care
facility. The 60-day time period thus began to run from the filing
of the written order, rendering S.I.’s notice of appeal timely. (In
re Markaus V. (1989) 211 Cal.App.3d 1331, 1337.)
S.I.’s treatment as a witness
S.I. contends the trial court violated his
constitutional rights to due process, equal protection, and a fair
trial when it called him as a witness, engaged in argumentative
questioning, and made findings without permitting examination
or argument by counsel. But S.I. did not object to any of these
alleged errors during the proceedings below. His contentions are
forfeited. (People v. Mickey (1991) 54 Cal.3d 612, 664-665
[forfeiture rule applies to constitutional claims]; see
Conservatorship of Joseph W. (2011) 199 Cal.App.4th 953, 967
[conservatee forfeited right to jury trial by participating in bench
trial without objection].)
Ineffective assistance of counsel
Alternatively, S.I. contends counsel did not provide
effective assistance because he did not object to the trial court’s
alleged errors. A potential conservatee “has a statutory right to
effective assistance of counsel.” (Conservatorship of David
L. (2008) 164 Cal.App.4th 701, 710; see § 5365.) To show that
counsel provided ineffective assistance, the conservatee must
show that: (1) counsel performed deficiently, and (2) that
deficient performance resulted in prejudice. (In re Jones (1996)
13 Cal.4th 552, 561; see Strickland v. Washington (1984) 466 U.S.
668, 687.) S.I. has failed to make these showings here.
“Although ‘the trial court has both the duty and the
discretion to control the conduct of the trial’ [citation], ‘the Due
5
Process Clause clearly requires a “fair trial in a fair tribunal”
[citation], before a judge with no actual bias against the
[proposed conservatee] or interest in the outcome of [a] particular
case. [Citations.]’ [Citation.]” (People v. Harris (2005) 37 Cal.4th
310, 346-347.) Our role as “a reviewing court ‘is not to determine
whether the trial judge’s conduct left something to be desired, or
even whether some comments would have been better left
unsaid.’” (Id. at p. 347.) “‘Rather, we must determine whether
the judge’s behavior was so prejudicial that it denied [the
conservatee] a fair, as opposed to a perfect, trial. [Citation.]’
[Citation.]” (Ibid.) “[S]uch a violation occurs only where the
[court] ‘“officiously and unnecessarily usurped the duties of the
prosecutor and in so doing created the impression that [it] was
allying [itself] with the prosecution.”’ [Citation.]” (Ibid.,
alterations omitted.)
The trial court did not assume the duties of the
prosecution in the proceedings below. At minimum, a potential
conservatee cannot be forced to testify about subjects that may
incriminate them in criminal matters. (Conservatorship of Bryan
S. (2019) 42 Cal.App.5th 190, 198; Conservatorship of
Baber (1984) 153 Cal.App.3d 542, 550.) Two recent decisions
have gone further, concluding that equal protection principles
require courts to allow conservatees to refuse to testify entirely.
(Conservatorship of J.Y. (2020) 49 Cal.App.5th 220, 227-232,
review granted Aug. 19, 2020, S263044; Conservatorship of E.B.
(2020) 45 Cal.App.5th 986, 992-998, review granted June 24,
2020, S261812.) S.I. urges us to follow the latter decisions and
conclude that the court below violated his rights when he
testified.
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We need not—and do not—consider that issue here
because the trial court did not force S.I. to testify; he offered to do
so. And during his testimony, the court did not ask him about
any matters that could incriminate him. Counsel thus did not
perform deficiently when he did not object to S.I.’s testimony.
(People v. Anderson (2001) 25 Cal.4th 543, 587 [counsel need not
lodge futile objection].)
Nor has S.I. shown that counsel performed deficiently
when he did not object to the trial court’s questions. S.I. claims
that the court’s questions about his use of marijuana and bus trip
to San Luis Obispo were “irrelevant and argumentative” and
“phrased to impose shame on [him].” But S.I. told Dr. Drago that
he wanted to discontinue his medications and use cannabis
products instead. And he said he went to San Luis Obispo to
show that he could care for himself. Questions about these issues
were thus directly relevant to the court’s determination of
whether S.I. was “in need of the state’s care.” (Conservatorship of
Roulet (1979) 23 Cal.3d 219, 225-226; see § 5008, subd. (h)(1)(A)
[person is “gravely disabled” if they are “unable to provide for
[their] personal needs”]; Conservatorship of Guerrero (1999) 69
Cal.App.4th 442, 446 [whether a person feels they do not need
medication relevant to establishing conservatorship].) They
“benefit[ted] the interests of [S.I.] as well as medical
professionals, [the] court, and [the] public.” (Conservatorship of
Pamela J. (2005) 133 Cal.App.4th 807, 828.)
We also reject S.I.’s claim that counsel performed
deficiently when he did not request closing argument.
“Ordinarily, unless the court otherwise directs, the trial of a civil
action tried by the court without a jury shall proceed in the order
specified in [Code of Civil Procedure s]ection 607.” (Code Civ.
7
Proc., § 631.7.) Subdivision (7) of section 607 of the Code of Civil
Procedure permits—but does not require—closing arguments.
And prior cases have approved the lack of closing arguments in
civil cases where, as here, the issues were “largely factual.”
(Givens v. Johnson (1946) 73 Cal.App.2d 139, 142-143; see also
Dam v. Bond (1926) 80 Cal.App. 342, 346-347 [no absolute right
to closing argument in civil proceedings].) During the
proceedings below, counsel might have concluded that a closing
argument would not materially affect the trial court’s decision.
Given the state of the evidence, we cannot say that conclusion
was erroneous. We thus cannot fault counsel for failing to
request something that was not required.
S.I.’s reliance on a number of criminal cases that
have reached the opposite conclusion is misplaced.
Conservatorship proceedings are civil in nature, and the
applicable proceedings are different than those that apply in
criminal cases. (Conservatorship of John L. (2010) 48 Cal.4th
131, 147.) S.I. has thus failed to show that counsel performed
deficiently when he did not object to the trial court’s actions that
allegedly violated his due process, equal protection, and fair trial
rights in this civil case.
We reach the same conclusion regarding counsel’s
lack of objection to Dr. Drago’s testimony. S.I. claims Dr. Drago’s
testimony included case-specific hearsay, in violation of People v.
Sanchez (2016) 63 Cal.4th 665, 682-683, and the opinions of other
experts, in violation of People v. Campos (1995) 32 Cal.App.4th
304, 308. But even if we assume that parts of Dr. Drago’s
testimony were inadmissible, “the mere failure to object rarely
rises to a level implicating one’s constitutional right to effective
legal counsel.” (People v. Boyette (2002) 29 Cal.4th 381, 433.)
8
Perhaps counsel did not object because he did not want the Public
Guardian to call other experts who would have reinforced Dr.
Drago’s opinion. (See, e.g., People v. Bona (2017) 15 Cal.App.5th
511, 522.) Or perhaps counsel concluded that an objection “would
serve only to highlight [Dr. Drago’s] undesirable testimony.”
(People v. Catlin (2001) 26 Cal.4th 81, 165.) Either way, we have
no basis to conclude that “this is one of those ‘rare’ cases in which
counsel’s failure to object amounts to constitutionally deficient
performance.” (Bona, at p. 522.)
Least restrictive placement
S.I. contends the trial court erred when it determined
that a licensed board and care facility was the least restrictive
placement for him. We review this contention for substantial
evidence (Conservatorship of Carol K. (2010) 188 Cal.App.4th
123, 134), and reject it.
When a trial court concludes that a conservatee is
gravely disabled, the court must initially decide “the least
restrictive alternative placement” for them. (§ 5358, subd.
(a)(1)(A).) When deciding that placement, the court shall
consider the report on available alternatives. (Id., subd. (c)(1).)
If that placement is not the conservatee’s home or the home of a
relative, it should be “as close as possible” to one of those places.
(Ibid.) The conservator subsequently has discretion to move the
conservatee to a more or less restrictive setting, without seeking
court approval. (Id., subd. (d)(1).)
Here, S.I. complains that the trial court did not have
any information about whether a licensed board and care facility
was close to his or a relative’s home or whether it was possible for
him to be placed in one of those homes. But as the Public
Guardian points out, a trial court is only required to consider
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those placements at the initial conservatorship appointment. (Cf.
Conservatorship of Amanda B. (2007) 149 Cal.App.4th 342, 353
[court must “set the initial level of placement”].) The proceedings
below concerned the Public Guardian’s reappointment as S.I.’s
conservator.
S.I. was instead entitled to a hearing on a less
restrictive placement (§ 5358, subd. (d)(4)), which he received. At
that hearing the Public Guardian submitted evidence in support
of S.I.’s placement, and S.I. said that he was happy to remain
there. Nothing more was required. (Conservatorship of Carol K.,
supra, 188 Cal.App.4th at p. 134.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
10
Linda D. Hurst, Judge
Superior Court County of San Luis Obispo
______________________________
Jean F. Matulis, under appointment by the Court of
Appeal, for Objector and Appellant.
Rita L. Neal, County Counsel, Chelsea K. Kuhns,
Deputy County Counsel, for Petitioner and Respondent.