Filed 12/14/20 Conservatorship of G.M. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
Conservatorship of the Person of B304894
G.M.
(Los Angeles County
Super. Ct. No.
20HWMH00068)
PUBLIC GUARDIAN OF LOS
ANGELES COUNTY,
Petitioner and Respondent,
v.
G.M.,
Objector and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Donna Groman, Judge. Reversed and remanded
with directions.
Jean Matulis, under appointment by the Court of Appeal,
for Objector and Appellant.
Mary C. Wickham, County Counsel, Lauren Black,
Assistant County Counsel, and William C. Sias, Senior Deputy
County Counsel, for Petitioner and Respondent.
Ellen S. Finkelberg for Conservator S.M.
2
At a hearing on a petition to appoint a conservator for G.M.
under the Lanterman-Petris-Short (LPS) Act, which authorizes
such an appointment when the person in question is gravely
disabled as a result of a mental disorder, G.M.’s attorney said he
informed her of her right to a jury trial and she agreed to a one-
year conservatorship. The trial court granted the petition
without advising G.M. of her rights on the record and without
finding she lacked capacity to personally waive her right to a jury
trial. We consider whether the conservatorship was validly
imposed under these circumstances.
I. BACKGROUND1
The Los Angeles City Attorney filed a misdemeanor
complaint against G.M. in September 2019.2 G.M.’s attorney in
the criminal matter declared a doubt as to her competence. The
trial court found G.M. was not competent to stand trial and there
was no substantial likelihood she would be restored to
competency by the maximum commitment date. The court
ordered the Public Guardian to investigate G.M.’s suitability for a
conservatorship under the LPS Act.
1
The Public Guardian of Los Angeles County (Public
Guardian) asks us to take judicial notice of documents from Los
Angeles Superior Court case numbers 9CJ08511 and ZM054981.
The request is granted. (Evid. Code, §§ 452, subd. (d), 459, subd.
(a).)
2
G.M. was charged with vandalism (Pen. Code, § 594),
defrauding an innkeeper (Pen. Code, § 537, subd. (a)(1)), and two
counts of battery (Pen. Code, § 242).
3
The Public Guardian reported G.M. appeared to meet the
criteria for a temporary conservatorship and requested additional
time to conduct a clinical assessment. The court obliged. After
completing the assessment, the Public Guardian reported it
intended to petition for conservatorship. The competency
proceedings were terminated and G.M. remained in custody.
The Public Guardian filed a petition for conservatorship of
the person and estate of G.M. in January 2020. A report
accompanying the petition stated G.M. suffered from
schizoaffective disorder, which produced symptoms including
disorganized and delusional thinking, auditory hallucinations,
agitation, poor hygiene, poor insight, poor compliance with
treatment, impaired thought process, and impaired activity of
daily living. A later-prepared report further revealed G.M. had
an “extensive” history of psychiatric hospitalizations.
The Public Guardian opined G.M. could not be safely
treated in a voluntary setting, pointing in part to her assertion
that she did not plan to continue treatment or medication if and
when released from custody.3 The Public Guardian concluded
G.M. was gravely disabled and recommended appointment of the
Public Guardian’s office as her conservator. The Public Guardian
also noted G.M.’s daughter, S.M., was willing to serve as her
conservator.
At the hearing on the Public Guardian’s petition, G.M. was
present and represented by the same attorney who represented
3
In December 2019, G.M. told an investigator from the
Public Guardian’s office that she did not want a conservatorship
and yelled and banged on her cell door until the interview was
terminated. The investigator also reported G.M. was refusing
medication.
4
her in the criminal competency proceedings. G.M.’s attorney
stated: “I discussed the rights and disabilities with [G.M.], and
also her right to either a court or jury trial, and that her
daughter wanted to be appointed as her conservator. And [she]
indicated to me that if her daughter was appointed as a
conservator, that she would agree to a one-year conservatorship.”
Without any further advisement of rights on the record or inquiry
of G.M. personally, the court appointed S.M. conservator with
powers to, among other things, place G.M. in a locked facility and
require her to accept treatment and psychotropic medication.
The court also imposed disabilities preventing G.M. from, among
other things, refusing to consent to treatment.
II. DISCUSSION
The LPS Act requires a trial court to advise a proposed
conservatee of their right to a jury trial and to consult the
proposed conservatee regarding the conservatorship. These
requirements went unheeded, and the representations by counsel
(not by G.M. personally) at the pertinent hearing were not an
adequate substitute absent an express finding—and there was
none—that G.M. was incapable of understanding an advisement
of rights or articulating a preference regarding the contemplated
conservatorship. We shall therefore reverse to permit the trial
court to make a finding about G.M.’s capacity to participate in
the colloquy required by the LPS Act; unless the court determines
G.M. was incapable of such participation, the court shall conduct
the colloquy anew before entering any new conservatorship order.
5
A. The Trial Court Erred By Not Advising and
Consulting with G.M. As Required by the Probate
Code
The LPS Act authorizes the appointment of a conservator
for up to one year if a person is found to be “gravely disabled as a
result of a mental health disorder” (Welf. & Inst. Code, § 5350
(hereafter Section 5350)), meaning the person is unable to
provide for her or his basic personal needs for food, clothing, or
shelter (Welf. & Inst. Code, § 5008, subd. (h)(1)(A)).4 The
proposed conservatee has “the right to demand a court or jury
trial on the issue of whether he or she is gravely disabled.”
(§ 5350, subd. (d)(1).) If a trial is held, the petitioner must prove
the proposed conservatee is gravely disabled beyond a reasonable
doubt. (Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1009,
citing Conservatorship of Roulet (1979) 23 Cal.3d 219.)
Subject to exceptions not applicable in this case, a trial
court “shall inform the proposed conservatee” that he or she 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.” (Prob. Code, § 1828 (hereafter
Section 1828), subd. (a)(6).5) After the court advises the proposed
conservatee of these rights, it “shall consult the proposed
4
Alternative definitions of “gravely disabled” set forth in
Welfare and Institutions Code section 5008, subdivision (h) do
not apply to this case.
5
Section 1828 applies to LPS proceedings pursuant to
Section 5350.
6
conservatee to determine the proposed conservatee’s opinion
concerning,” among other things, “[t]he establishment of the
conservatorship” and “[t]he appointment of the proposed
conservator.” (§ 1828, subd. (b).)
Courts have reached different conclusions as to whether a
proposed LPS conservatee who is not found to lack capacity must
personally waive the right to a jury trial. We will briefly review
these decisions, but we ultimately do not need to take sides here
because compliance with Section 1828’s advise-and-consult
provisions informs a proposed conservatee’s decision about
whether to invoke his or her jury trial right—and such
compliance was lacking here.
In a 1991 case, Conservatorship of Mary K. (1991) 234
Cal.App.3d 265 (Mary K.), the Court of Appeal considered
whether an attorney could validly waive a proposed conservatee’s
right to a jury trial when the attorney “stated he had spoken with
his client and she wished to waive a jury trial” and the
conservatee did “not contend her attorney was without actual
authority to waive a jury.” (Id. at 271.) The Court of Appeal
held: “[U]nlike criminal proceedings, the right to a jury trial on a
conservatorship petition exists only as provided by statute.
[Citation.] Since conservatorship proceedings were unknown to
the common law at the time the California Constitution was
adopted, there is no constitutional right to such a jury trial.
[Citation.] Therefore, an on-the-record personal waiver of a jury
trial is not required from the proposed conservatee.” (Ibid.)
Similarly, because the requirement that the court advise a
proposed conservatee of her right to a jury trial is statutory
rather than constitutional, “the right to [this] advisement[ ] can
7
also be validly waived by the proposed conservatee’s counsel.”
(Ibid.)
After Mary K., our Supreme Court decided two cases
addressing whether a personal jury trial waiver is required in
relevant but not identical circumstances to those involving the
LPS Act question here. (People v. Tran (2015) 61 Cal.4th 1160
(Tran); People v. Blackburn (2015) 61 Cal.4th 1113 (Blackburn).)
In Blackburn, our Supreme Court considered whether counsel for
a mentally disordered offender (MDO) may validly waive the
offender’s right to a jury trial in proceedings to extend
involuntary commitment beyond termination of parole.
(Blackburn, supra, at 1116.) The Supreme Court held, relying on
the key penal statute there implicated (Pen. Code, § 2972) that
“the trial court must elicit the waiver decision from the defendant
in a court proceeding unless it finds substantial evidence of
incompetence, in which case counsel controls the waiver
decision.” (Blackburn, supra, at 1131; see also id. at 1130
[expressly rejecting the holding by the court below that “waiver
by counsel . . . ‘at the [defendant’s] direction or with the
[defendant’s] knowledge and consent’” would be sufficient].) In
Tran, the Supreme Court held that “nearly identical language in
the statutory scheme for extending the involuntary commitment
of a person originally committed after pleading not guilty by
reason of insanity (NGI) to a criminal offense” has the same
meaning as the statutory language discussed in Blackburn.
(Tran, supra, at 1163.) As in Blackburn, the Court emphasized
that “the purpose of advising a defendant of a particular right is
to enable the defendant to make an informed choice about
whether to waive that right . . . .” (Id. at 1166.)
8
Following Blackburn and Tran, Court of Appeal panels
have held the Supreme Court’s analysis of the necessity of a
personal waiver in the MDO and NGI contexts applies to
proposed LPS conservatees. In Kevin A., a proposed LPS
conservatee demanded a jury trial, but the trial court accepted
his attorney’s waiver of a jury trial over his objection.
(Conservatorship of Kevin A. (2015) 240 Cal.App.4th 1241, 1247-
1248.) Though conceding the LPS Act statutory language “differs
somewhat” from that at issue in Blackburn and Tran, the Kevin
A. court reversed, holding the Supreme Court’s reasoning in
Blackburn and Tran should control. (Id. at 1248, 1251 [error to
accept an attorney waiver over the conservatee’s express wishes
and without a specific finding that the conservatee lacked the
capacity to make this decision for himself].) Significantly for our
purposes, the Kevin A. opinion also emphasizes a trial court is
required to advise a proposed LPS conservatee of his or her right
to a jury trial and to consult with the proposed conservatee to
seek his or her views regarding the establishment of the
conservatorship. (Id. at 1249, citing § 1828, subds. (a)(6), (b)(1)-
(3).) The Kevin A. court reconciled the conclusion it reached with
the holding in Mary K., supra, 234 Cal.App.3d 265 by observing
the conservatee in Mary K. “herself wanted a court trial rather
than a jury trial”—as indicated by her attorney—whereas the
conservatee in Kevin A. “expressed a desire contrary to that
expressed by his attorney, and in no way sought to waive a right
afforded him.” (Id. at 1251-1252.)
In another case, Conservatorship of Heather W. (2016) 245
Cal.App.4th 378, the Court of Appeal considered whether a
conservatee’s attorney validly waived her right to a jury trial
when, unlike the conservatee in Kevin A., she did not express a
9
preference for a jury trial. (Id. at 381 [explaining that at a
hearing to extend her conservatorship, the trial court advised the
conservatee of her right to testify, but not her right to a jury
trial].) Citing Section 1828, subdivision (a)(6) (the provision
requiring a court to advise a proposed conservatee of his or her
rights, including the right to a jury trial), the Court of Appeal
relied on Blackburn and Tran and reversed because “the trial
judge did not give such an advisement to Heather W. and obtain
her personal waiver of that right.” (Id. at 384.) The Heather W.
court distinguished Mary K., supra, 234 Cal.App.3d 265, because
that case was decided before Blackburn and Tran and involved
different facts. (Id. at 384 [“In Mary K., ‘counsel stated he had
spoken with his client and she wished to waive a jury trial’”].)
We need not decide whether, when holding a personal
waiver of the jury trial right is required, Kevin A. and Heather W.
fully grapple with the differences between the LPS Act statutory
scheme and the MDO and NGI statutes at issue in Blackburn
and Tran. That is because two provisions of Section 1828 make
clear that the right to demand a jury trial under Section 5350
does not exist merely to accommodate a proposed conservatee
who spontaneously asserts their rights. Rather, a trial court
must inform every proposed conservatee of their right to demand
a jury trial (§ 1828, subd. (a)(6)) and, “[a]fter the court so informs
the proposed conservatee . . . , consult the proposed conservatee
to determine the proposed conservatee’s opinion” regarding “[t]he
establishment of the conservatorship.” (§ 1828, subd. (b)(1).)
These advise-and-consult provisions of Section 1828 give vitality
to the jury trial right granted by Section 5350.
Section 1828’s advise-and-consult mandate was not
followed here. The Public Guardian and the conservator, S.M.,
10
say that does not matter because G.M.’s trial counsel stated he
had advised her of her rights and she consented to the
conservatorship.6 But that is not enough. In enacting Section
1828, and subdivision (a)(6) of that statute in particular, the
Legislature was obviously concerned with ensuring a proposed
conservatee (who is likely experiencing at least some mental
difficulties) receives a situationally appropriate advisement of his
or her rights given the significant deprivation of liberty that a
conservatorship entails, and the Legislature determined an
advisement and consultation in open court was the appropriate
means to reliably achieve that end. The Public Guardian also
argues the trial court was not required to advise and consult with
G.M. because the finding that she was not competent in the
related criminal proceeding means such an advisement and
consultation would have been fruitless.7 The trial court here,
however, made no finding G.M. was incapable of understanding a
court-provided jury trial advisement or of participating in a
consultation about her views on the establishment of a
conservatorship, and a determination under the different
6
These arguments appear to be rooted in a constitutional
due process analysis, but the question here is really concerned
with what the Probate Code requires.
7
At the last competency hearing in the criminal case, which
took place in November 2019, the criminal court found there was
no substantial likelihood G.M. would be restored to competency
by July 2020, the maximum commitment date. As of early
December 2019, G.M. was refusing medication. The LPS Act
hearing at issue in this appeal was held at the end of January
2020.
11
criminal competency standard is no adequate proxy.8 (Pen. Code,
§ 1367 [“A defendant is mentally incompetent for purposes of this
chapter if, as a result of a mental health disorder or
developmental disability, the defendant is unable to understand
the nature of the criminal proceedings or to assist counsel in the
conduct of a defense in a rational manner”].) We are therefore of
the view that the noncompliance with Section 1828’s advise-and-
consult requirement was error.
B. The Error Requires Reversal
Having held there was error, the question now is whether
the error requires reversal. In Blackburn, the Supreme Court
held the failure to obtain a valid jury trial waiver in the MDO
context completely denied the defendant his right to a jury trial.
(Blackburn, supra, 61 Cal.4th at 1136.) Such an error results in
a miscarriage of justice and requires reversal unless there is
“substantial evidence that the defendant lacked that capacity at
the time of counsel’s waiver.” (Ibid.) The Court reached a similar
conclusion in the NGI context in Tran, and emphasized “the
requirement of an affirmative showing means that no valid
waiver may be presumed from a silent record.” (Tran, supra, 61
Cal.4th at 1170.)
Here, the trial court’s failure to advise and consult with
G.M. regarding her right to a jury trial requires reversal unless
8
There is some evidence in the record that would tend to
indicate G.M. was not completely incapable of expressing her own
views about imposition of a conservatorship: G.M. told an
investigator from the Public Guardian’s office that she did not
want a conservatorship (just before yelling and banging on her
cell door).
12
the record affirmatively shows there was substantial evidence
that she lacked the capacity to make a knowing and voluntary
waiver at the time of her attorney’s waiver. The Public Guardian
again contends the competency proceedings that resulted in a
referral to assess G.M.’s suitability for an LPS conservatorship
provide such evidence.
As our discussion thus far foreshadows, we reject this
harmlessness argument. The November 2019 incompetency
finding—made pursuant to the standard for competence in a
criminal case—is not substantial evidence G.M. was incapable in
January 2020 of understanding a right to a jury trial or of
expressing any views on the proposed conservatorship.
13
DISPOSITION
The trial court’s order granting the petition for
conservatorship is reversed. On remand, the trial court shall
determine whether G.M. lacked sufficient capacity to participate
in, or benefit from, the advise-and-consult requirement in Section
1828 at the time of the January 2020 hearing. The trial court
may take additional evidence, if it so chooses, and the court may
reinstate its order if it determines G.M. lacked such capacity.
(Heather W., supra, 245 Cal.App.4th at 385; see also Blackburn,
supra, 61 Cal.4th at 1137; Tran, supra, 61 Cal.4th at 1170.) If,
however, the court determines G.M. did have sufficient capacity
to participate in, or benefit from, the advise-and-consult
requirement in Section 1828, the court shall conduct a new
colloquy complying with Section 1828 before making any new
conservatorship order.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
14