Filed 11/17/21 Conservatorship and Estate of Luke C. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
Conservatorship of the Person and B311111
Estate of LUKE C.
(Los Angeles County
Super. Ct. No. ZE028129
PUBLIC GUARDIAN OF THE
COUNTY OF LOS ANGELES, as
Conservator, etc.,
Petitioner and Respondent,
v.
LUKE C.,
Objector and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Lisa Jaskol, Judge. Affirmed.
Gerald J. Miller, under appointment by the Court of
Appeal, for Objector and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Lauren Black,
Assistant County Counsel, and William C. Sias, Principal Deputy
County Counsel, for Petitioner and Respondent.
INTRODUCTION
Luke C. appeals from the trial court’s order appointing
Public Guardian of Los Angeles the conservator of Luke’s person
and estate pursuant to the Lanterman-Petris-Short (LPS) Act.
(See Welf. & Inst. Code, § 5350 et seq.) Luke argues the trial
court improperly coerced him to waive his right to a jury trial by
telling him he could have either a court trial that day or, because
of the COVID-19 pandemic, a jury trial in eight months. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The LPS Act
“The LPS Act authorizes the superior court to establish a
conservatorship of a person who is gravely disabled as a result of
a mental disorder.” (Conservatorship of John L. (2010)
48 Cal.4th 131, 139; see Welf. & Inst. Code, § 5350.)1 “An LPS
conservatorship automatically terminates after one year, and
reappointment of the conservator must be sought by petition.”
(Conservatorship of John L., at p. 143; see § 5361.) “The proposed
conservatee is entitled to demand a jury trial on the issue of his
or her grave disability,” including on a petition “to reestablish a
conservatorship after its automatic expiration . . . .”
(Conservatorship of Ben C. (2007) 40 Cal.4th 529, 541-542; see
§ 5350, subd. (d)(1), (3).)
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
B. Public Guardian Files a Petition for an Order
Reappointing It Conservator of Luke’s Person and
Estate
In 2004 the superior court found Luke was gravely disabled
and appointed Public Guardian as conservator of Luke’s person.
In February 2005 the court also appointed Public Guardian as
conservator of Luke’s estate. Between 2005 and 2019 the
superior court annually granted petitions by Public Guardian to
be reappointed.
Public Guardian filed the petition for reappointment that is
the subject of this appeal in July 2020. At the time, the
conservatorship was scheduled to terminate on September 6,
2020. On August 12, 2020 the court held a hearing, during which
counsel for Luke asked the court to appoint an expert witness
under Evidence Code section 730 to evaluate whether Luke had a
grave disability. The trial court granted the request and, with
the stipulation of Luke’s counsel, ordered the conservatorship to
remain in effect. In September and October 2020, the trial court
granted requests by counsel for Luke to continue the trial on the
petition, again ordering that the conservatorship remain in effect.
At a November 16, 2020 hearing, at which Luke did not appear,
counsel for Luke asked the court to set the matter for a court
trial, “presumably with a waiver done that day . . . .” The court
set the petition for trial on January 11, 2021, again ordering the
conservatorship to remain in effect.
C. Luke Waives His Right to a Jury Trial
Luke appeared via video conference at the January 11,
2021 trial. At the beginning of the proceeding, the following
exchange occurred:
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“The Court: Okay, so there are two kinds of trials that you
can have. One kind is called a court trial, and in a court trial, the
judge hears all the evidence and then the judge makes a decision
whether the evidence shows beyond a reasonable doubt that
you’re gravely disabled. So that’s a court trial. The other kind of
trial is called a jury trial. In a jury trial, 12 people from the
community come to court, and those 12 people hear all the
evidence and then they decide if the evidence shows beyond a
reasonable doubt that you’re gravely disabled. In order to find
that you’re gravely disabled, all 12 jurors have to reach that
decision. So you have a choice: Either you can have a court trial
with a judge, or you could have a jury trial with the 12 people
from the community.
“Luke: Whatever gets me off conservatorship fastest.
Couple names of some places I can go to. I wrote them down.
“The Court: Well, so first things first. Do you want to have
a court trial with the judge or a jury trial with the 12 members of
the community? And if we do—just so you know, if we have a
court trial, we can do it today and we can do it right now. If we
have a jury trial, it will probably be about eight months from
now. So do you know—
“Luke: Your time, Your Honor.
“The Court: Don’t worry about me. It’s really what you
want.
“Luke: Yeah. I told her yeah. I was telling her about that
right now. Anyway, judge trial please.
“The Court: Okay, thank you. So you’re giving up your
right to a jury trial?
“Luke: Yes, ma’am.”
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D. The Court Grants the Petition
The court trial commenced shortly after Luke waived his
right to a jury trial. Dr. Gary Freedman-Harvey, a forensic
psychologist, testified for Public Guardian and said that, in his
opinion, Luke was gravely disabled. Dr. Freedman-Harvey
reviewed Luke’s medical records, consulted with staff at Luke’s
treatment facility, and interviewed Luke. According to
Dr. Freedman-Harvey, Luke suffered from schizophrenia and had
no insight into his disorder. His symptoms included “delusional
and perfunctory thought processes” and a “limited amount of
ability to engage in reasoning or thoughts about his current
situation . . . .” Dr. Freedman-Harvey stated that, if the court
terminated the conservatorship and Luke left his treatment
facility, Luke would not be able to feed, shelter, and clothe
himself, nor would he take the medications prescribed for his
disorder. Dr. Freedman-Harvey also observed that Luke did not
have a viable plan for finding a place to live.
Luke testified that, in his opinion, he suffered from “just
anxiety mainly” and that he might be bipolar, but that he did not
suffer from schizophrenia. Luke stated that, if he were released
from his treatment facility, he would continue to seek mental
health treatment and take his prescribed medications.
The court found Luke was gravely disabled, granted the
petition, and reappointed Public Guardian as conservator of
Luke’s person and estate. Luke timely appealed. 2
2 Although an order granting a letter of conservatorship
under the LPS Act is an appealable order (see § 5350; Prob. Code,
§ 1301, subd. (a); Conservatorship of D.C. (2019) 39 Cal.App.5th
487, 493), the conservatorship that is the subject of this appeal
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expired on September 6, 2021, technically mooting this appeal.
But “[b]ecause a conservatorship is relatively brief (one year) in
comparison with the appellate process,” we will hear this appeal
as one raising an issue that “is one capable of recurring, yet of
evading review because of mootness.” (Conservatorship of Susan
T. (1994) 8 Cal.4th 1005, 1011, fn. 5; see Conservatorship of K.P.
(2019) 39 Cal.App.5th 254, 257, fn. 2 [although the LPS Act
conservatorship from which the conservatee appealed had
terminated and the appeal was “technically moot,” the court
reached the issue of reappointment as “one that is ‘“capable of
recurring, yet of evading review”’”], affd. (2021) 11 Cal.5th 695;
Conservatorship of G.H. (2014) 227 Cal.App.4th 1435, 1439-1440
[“‘Because procedures for reestablishment of conservatorships
[under the LPS Act] “are of great public interest” and a
reestablishment issue “could perpetually evade appellate
scrutiny” [citation], we exercise our discretion to consider, and
address the merits of, this appeal.’”]; Conservatorship of
Joseph W. (2011) 199 Cal.App.4th 953, 960 [“because the issue
presented by his appeal is capable of recurring, but evading
review, and involves a matter of general public interest, we . . .
exercise our discretion to address the merits of [an LPS Act
conservatee’s] appeal, in which he contends he was erroneously
denied the right to a jury trial”]; Conservatorship of George H.
(2008) 169 Cal.App.4th 157, 161, fn. 2 [mootness argument in
one-year conservatorship appeals is “uniformly rejected”].) On
July 26, 2021 Public Guardian filed a petition for reappointment,
and on August 30, 2021 the court granted the petition and
reappointed Public Guardian as conservator. We take judicial
notice under Evidence Code sections 452, subdivision (d), and 459
of the court’s August 30, 2021 minute order.
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DISCUSSION
A. Applicable Law and Standard of Review
As stated, on a petition to reappoint a conservator under
the LPS Act, a conservatee has the right to a jury trial on the
issue of whether he is gravely disabled. (Conservatorship of
Ben C., supra, 40 Cal.4th at pp. 541-542; see § 5350, subd. (d)(1),
(3).) According to Luke, the trial court coerced him to waive his
right to a jury trial by telling him on the day of trial he could
have a court trial that day or a jury trial in eight months.
The parties disagree on the applicable standard of review.
Luke argues the same standards that govern whether a trial
court has coerced a criminal defendant to waive his or her right
to a jury trial govern whether a trial court has coerced a proposed
conservatee in an LPS proceedings to waive his or her right to a
jury trial. Public Guardian argues the standards that govern
jury trial waivers in civil actions, not criminal actions, govern
jury trial waivers in LPS proceedings. But Public Guardian does
not explain whether there is any meaningful difference between
civil and criminal proceedings when a party contends the trial
court coerced a jury waiver, or what the difference is. Because we
do not need to resolve this issue to decide the appeal, we assume
without deciding that standards in a criminal proceeding govern
whether a trial court has coerced a waiver in an LPS proceeding.
In criminal proceedings, “‘a defendant’s waiver of the right
to jury trial may not be accepted by the court unless it is knowing
and intelligent, that is, “‘“made with a full awareness both of the
nature of the right being abandoned and the consequences of the
decision to abandon it,”’” as well as voluntary “‘“in the sense that
it was the product of a free and deliberate choice rather than
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intimidation, coercion, or deception.”’”’” (People v. Sivongxxay
(2017) 3 Cal.5th 151, 166; see People v. Collins (2001) 26 Cal.4th
297, 305 (Collins).) The requirement that the defendant’s waiver
be voluntary prohibits the state, “whether its source is executive,
legislative, or judicial in nature,” from coercing a defendant to
waive his or her right to a jury trial. (Collins, at p. 306; see
People v. Dixon (2007) 153 Cal.App.4th 985, 990 (Dixon).) As the
Supreme Court stated in Collins, this prohibition is based on the
principle that “the state may not punish a defendant for the
exercise of a constitutional right, or promise leniency to a
defendant for refraining from the exercise of that right.” (Collins,
at pp. 305-306; accord, People v. Quintanilla (2009)
170 Cal.App.4th 406, 413; Dixon, at p. 990.) “The line of
decisions prohibiting such coercion condemns ‘the State’s
unilateral imposition of a penalty upon a defendant who had
chosen to exercise a legal right,’ and recognizes that ‘[t]o punish a
person because he has done what the law plainly allows him to do
is a due process violation of the most basic sort [citation], and for
an agent of the State to pursue a course of action whose objective
is to penalize a person’s reliance on his legal rights is “patently
unconstitutional.”’” (Collins, at p. 306; see Dixon, at p. 990.)
Courts examine the totality of the circumstances to determine
whether a defendant has voluntarily waived his or her jury trial
right. (See People v. Daniels (2017) 3 Cal.5th 961, 991 (lead opn.
of Cuéllar, J.) [“We uphold the validity of a jury waiver ‘“if the
record affirmatively shows that it is voluntary and intelligent
under the totality of the circumstances.”’”]; People v. Sivongxxay,
at p. 167 [considering the totality of circumstances in
“determining whether a defendant has made a knowing and
intelligent waiver of a jury trial in favor of a bench trial”]; People
8
v. Roles (2020) 44 Cal.App.5th 935, 950 [“The test of a valid [jury
trial] waiver turns on whether the record affirmatively shows
that the waiver is voluntary and intelligent under the totality of
the circumstances.”].)
B. The Trial Court Did Not Coerce Luke To Waive His
Right to a Jury Trial
The case on which Luke primarily if not exclusively relies,
Collins, supra, 26 Cal.4th 297, does not support his position. In
Collins the trial court advised the defendant that the court had
previously told the defendant’s attorney “‘there might well be a
benefit’” to waiving the defendant’s right to a jury trial “because
‘just by having waived jury’ and thus not taking two weeks’ time
to try the case, ‘that has some effect on the court.’” (Id. at p. 309.)
The trial court in that case told the defendant, immediately
before the defendant waived his right to a jury trial: “‘I’m not
specifying that there’s any particular benefit, but that by waiving
jury, you are getting some benefit, but I can’t tell you what that is
because I don’t know yet.’” (Id. at p. 302.) The Supreme Court
concluded that the “form of the trial court’s negotiation with
defendant presented a ‘substantial danger of unintentional
coercion’” and that, “[i]n effect, the trial court offered to reward
defendant for refraining from the exercise of a constitutional
right.” (Id. at p. 309.) The Supreme Court held the “inducement
. . . violated defendant’s right to due process of law” (id. at p. 309)
and “rendered that waiver involuntary” (id. at p. 312).
The trial court here did not negotiate with Luke or offer to
reward him for waiving his right to a jury trial. The trial court
first described for Luke the difference between a court trial and a
jury trial and stated, “You have a choice.” When Luke indicated
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he wanted whichever trial would end his conservatorship quicker,
the court informed Luke about the court’s availability to have a
court trial or jury trial. The court said that it was available to
begin a court trial that day, but that it would not be able to have
a jury trial until several months later—in large part because of
the effects of the COVID-19 pandemic on the court’s operations.
Luke does not dispute the accuracy of the court’s description of
the delays in setting jury trials because of the pandemic, and the
parties agree it was the pandemic that caused the delay here.
Finally, the court emphasized it was not trying to influence
Luke’s decision about whether to waive his right to a jury trial:
Immediately after Luke stated, “Your time, Your Honor,” the
court said to Luke, “Don’t worry about me. It’s really what you
want.” The trial court’s statements adequately conveyed to Luke
that the court would neither punish nor reward him for his
decision. (See U.S. v. Leja (1st Cir. 2006) 448 F.3d 86, 95 [district
court did not coerce the defendant to waive his right to a jury
trial, even though the court suggested a court trial, where the
court stated, “I’m not pushing anybody”].)
Luke emphasizes that he received a benefit from waiving
his right to a jury trial and having a court trial instead—namely,
the benefit of having his case decided immediately, rather than
waiting eight months (while still under a conservatorship). Luke
is partially correct; he did receive a “benefit.” But the court did
not offer him a “reward” for waiving his jury trial right. As the
Supreme Court stated in Collins, the rule prohibiting a trial court
from coercing a defendant to waive his or her right to jury trial is
based on the principle that the state may not punish or impose a
penalty on a defendant who elects to exercise his rights and,
conversely, may not promise leniency to a defendant who gives up
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his or her rights. (See Collins, supra, 26 Cal.4th at p. 306.) For
example, had the court arbitrarily threatened to delay setting a
jury trial to induce Luke to waive his rights, the result may have
been different. But the trial court did not threaten to punish
Luke or offer him reward; the court only informed him about the
realities of delays in jury trials during the pandemic. That Luke
would receive a benefit from a court trial—earlier resolution of
the petition—was not within the power of the court to control.
Thus, the court’s statements did not implicate a reward or
punishment and were not coercive. (See U.S. v. Leja, supra,
448 F.3d at p. 95 [trial court’s statement, that “a jury might have
difficulty with the complexity of the case,” did not coerce the
defendant to waive his right to a jury trial where “nothing
indicate[d] that [the court] conveyed the suggestion that a failure
to waive might be viewed adversely by the court”]; cf. In re
Lewallen (1979) 23 Cal.3d 274, 281 [“a trial judge is precluded
from offering an accused in return for a guilty plea a more lenient
sentence” or “imposing a more severe sentence because the
accused elects to proceed to trial” because “[t]rial courts may not
. . . chill the exercise of the constitutional right to trial by jury”];
Dixon, supra, 153 Cal.App.4th at p. 993 [“comments by the court
(that it would consider a waiver of the right to a jury trial a
mitigating factor at sentencing) were an improper promise of a
benefit for waiving a fundamental constitutional right”].)
Finally, Luke has not explained what he believes the court
should have done under the circumstances. For example, Luke
does not contend that the court somehow should have found a
way to set a jury trial earlier; as stated, Luke concedes the court’s
description of its calendar and the delay associated with a jury
trial was accurate. Nor does Luke argue the court should have
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set a court trial for several months later so that Luke would not
have the conservatorship petition resolved earlier.3 Perhaps the
trial court could have withheld the information about the delays
in jury trials and waited to set the matter for trial until after
Luke had elected a court or a jury trial. But under the
circumstances, the court’s decision to give Luke more
information, rather than less, was not coercive.
We emphasize that the trial court made its statements
about the delay in jury trials in the very unique circumstances of
a pandemic and that, in this context, the court’s statements were
not coercive. We have no occasion in this appeal to decide
whether structural obstacles to a conservatee’s ability to obtain a
jury trial in a timely manner or a “systemic ‘breakdown’”
(Vermont v. Brillon (2009) 556 U.S. 81, 94 [129 S.Ct. 1283,
173 L.Ed.2d 231]) of the jury trial system in conservatorship
cases, not caused by a global health emergency, would implicate
the conservatee’s statutory or constitutional rights. (Compare
Conservatorship of Jose B. (2020) 50 Cal.App.5th 963, 974
[unexplained 137-day delay in a conservatee’s jury trial was
“troubling”] with U.S. v. Olsen (9th Cir. 2021) 995 F.3d 683, 695
[“[t]he pandemic is an extraordinary circumstance,” and
“considering the continued public health and safety issues posed
by COVID-19,” proceeding with jury trials “would risk the health
and safety of those involved, including prospective jurors,
defendants, attorneys, and court personnel”] and U.S. v. Foley
(D.Conn. Oct. 22, 2020, No. 18-CR-333) 2020 WL 6198949, p. 10
3 Had the court done so, it likely would have violated the
LPS Act. (See § 5365 [ “[a] hearing shall be held” on a petition for
reappointment of a conservator “within 30 days of the date of the
petition”].)
12
[delay in a jury trial “caused by the Court’s need to prepare for
jury selection and trial amidst the pandemic that continues to kill
thousands of Americans” weighed strongly against a finding of
violation of the defendant’s speedy trial rights].)
DISPOSITION
The order is affirmed. Public Guardian’s request for
judicial notice is denied.
SEGAL, Acting P. J.
We concur:
FEUER, J.
IBARRA, J.*
* Judge of the Santa Clara County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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