Filed 9/7/22 Conservatorship of P.D. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
Conservatorship of the Person of P.D.
KERN COUNTY PUBLIC CONSERVATOR, F083466
Petitioner and Respondent, (Super. Ct. No. MI006622-05)
v.
OPINION
P.D.,
Objector and Appellant.
THE COURT*
APPEAL from orders of the Superior Court of Kern County. Marcos R. Camacho,
Judge.
Rachel Lederman and Alexsis C. Beach, under appointment by the Court of
Appeal, for Objector and Appellant.
Margo A. Raison, County Counsel, and Kyle W. Holmes, Deputy County
Counsel, for Petitioner and Respondent.
-ooOoo-
* Before Poochigian, Acting P. J., Detjen, J. and Meehan, J.
Appellant P.D. challenges the trial court’s decision to place her under the authority
of a conservatorship pursuant to the Lanterman-Petris-Short Act (LPS Act). (Welf. &
Inst. Code, § 5000 et seq.)1 Appellant believes the decision by the trial court must be
reversed because she was not properly advised of her right to a jury trial. In the
alternative, appellant believes substantial evidence does not support the findings made by
the trial court, requiring a reversal of the order imposing the conservatorship. Our review
of the record leads us to conclude the orders imposing the conservatorship must be
reversed.
PROCEDURAL SUMMARY
On February 26, 2021, a petition seeking the appointment of a conservator for
appellant under the LPS Act was filed. Letters establishing a temporary conservatorship
were issued on March 1, 2021, appointing the Kern County Public Conservator while the
petition was pending. At the time set for the contested hearing on the petition,
appellant’s mother stated her willingness on the record to offer third party assistance to
appellant. Based on this representation by appellant’s mother, the petition was dismissed
on April 28, 2021, and the temporary conservatorship was terminated.
On August 9, 2021, a new petition seeking the appointment of a conservator for
appellant was filed. The Kern County Public Conservator was again appointed the
temporary conservator on August 10, 2021, while the petition was pending. At the initial
hearing on this new petition held on September 8, 2021, counsel for appellant stated “Ms.
[D.]’s requesting a bench trial,” and waived time. Appellant was not present at this initial
hearing. A contested hearing on the petition was eventually held on October 20, 2021,
with appellant in attendance. At the conclusion of that hearing, the trial court issued an
1 All further statutory references will be to the Welfare and Institutions Code, unless
otherwise specified.
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order creating a conservatorship for appellant for a period of one year. A notice of appeal
was thereafter filed on behalf of appellant on October 22, 2021.
FACTUAL SUMMARY
Roxanne Martinez, a deputy conservator, testified she had received referrals for
appellant “on and off since 2019.” Relevant to this appeal, Martinez stated she received a
referral for appellant on July 30, 2021, from Good Samaritan Hospital. Among the
reasons for the referral was that appellant had stopped taking her medications. Martinez
stated appellant was placed in a board and care facility after the referral, and she had
shown improvement.
Martinez also offered that in her role as a deputy public conservator, she evaluates
individuals assigned to determine whether a conservatorship is required. Martinez
believed that at the time of the referral in July 2021 appellant was gravely disabled and
met the criteria for a conservatorship under the LPS Act. Martinez further explained:
“[S]he is unable to verbalize [any] viable plan for her basic needs for food,
clothing and shelter. She does not have any viable plan on how she would
continue engaging in her mental health treatment and taking her
medications. Her primary plan is to accept third party assistance from her
mom, but that was offered and tried [in] the past, recent past, and it was
unsuccessful. So I do believe she is unable to meet those basic needs at this
time and remains gravely disability.”
Martinez noted while appellant seemed to have sources of income that could help her live
on her own, prior attempts to live on her own, or with her mother, were not successful.
Martinez believed appellant lacked a viable plan that she could follow for how to
function successfully in the future.
Testimony provided by Dr. Jagdeep Garewal, a psychiatrist, followed. Garewal
stated appellant was his patient and had been diagnosed with “Schizoaffective [D]isorder
Bipolar [T]ype.” Garewal testified that while he would not need to make further
adjustments in appellant’s medications, he was not confident appellant would follow
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through with the constant lab testing necessary while using this particular medication.
Garewal emphasized the medications appellant was prescribed require constant testing,
and he was not confident appellant’s mother would accept responsibility for making sure
appellant followed through with the testing.
Appellant next testified on her own behalf. Appellant explained her plan to pay
for her living expenses and get regular lab work done. Appellant explained that she
planned to obtain health insurance so she could see a doctor regularly and take care of the
required blood testing. Appellant believes she can pay for the insurance, out of pocket
costs for medication, food and rent, using her Social Security benefits. Appellant
testified she has signed up for classes through College Community Services and believes
they will provide her with the transportation needed to get to the required lab
appointments. Appellant attributed problems she had in the past with making doctor
appointments and getting lab work done to the lack of insurance and a lack of
communication with the doctor’s office, as they were communicating with appellant’s
mother instead of with her directly.
DISCUSSION
In her challenge to the judgment of the trial court, appellant raises only
two issues—whether the failure of the trial court to advise her of the right to a jury trial
on the record renders the judgment invalid, and whether the findings of the trial court are
supported by substantial evidence.
I. The Trial Court Was Required to Specifically Advise Appellant of Her Right
to a Jury Trial
A review of the entire record reveals that the trial court never specifically advised
appellant of her right to ask for a jury trial before proceeding with the bench trial. The
question we must resolve is whether this deals a fatal blow to the judgment entered in this
case, even though appellant’s trial counsel stated to the court that, “Ms.[D.]’s requesting
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a bench trial.” If we conclude there was a failure to advise appellant of her right to a jury
trial, we must then consider whether this error can be overcome.
This court’s view on this issue is represented in Conservatorship of Kevin A.
(2015) 240 Cal.App.4th 1241 (Kevin A.). When reviewing the reappointment of an
LPS conservatorship, this court referenced section 5350 and its reliance on Probate Code
provisions addressing conservatorships. (Kevin A., at p. 1249.) Specifically applicable
here, the Kevin A. court cited Probate Code section 1828, subdivision (a)(6), which
requires a trial court to inform the proposed conservatee of the right to oppose the
proceeding, to have the matter tried by a jury, to be represented by counsel, and to have
counsel appointed if the proposed conservatee is unable to retain legal counsel.
(Kevin A., at p. 1249.) The Kevin A. court also cited subdivision (b)(1)–(3), of Probate
Code section 1828, and its requirement the trial court explore with the conservatee their
opinion about a conservatorship, the proposed conservator, and any limitations that might
impact the conservatee’s legal capacity to be involved in the decision. (Kevin A., at
p. 1249.)
However, these Probate Court provisions were not the only factors guiding the
Kevin A. court. The court also engaged in an analysis of two recent California Supreme
Court opinions considering the same issue in the context of mentally disordered offenders
(MDO). Both cases held that the relevant Penal Code statute required a trial court to
advise an MDO defendant, on the record, of the right to a jury trial. (See People v.
Blackburn (2015) 61 Cal.4th 1113, 1124, People v. Tran (2015) 61 Cal.4th 1160,
1163,1166 [citing Pen. Code, § 2972, involving a plea of guilty by reason of insanity].)
Even though these cases were decided in the context of criminal proceedings, the
Kevin A. court noted the holdings in those cases must be considered when reviewing
LPS conservatorships. (Kevin A., supra, 240 Cal.App.4th at p. 1248.)
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The lack of an express waiver from the conservatee of the right to a jury trial was
especially troublesome in Kevin A. Specifically, the conservatee in Kevin A. made his
desire for a jury trial known to the court on the record, despite his attorney’s efforts to
waive a jury trial on his behalf. (Kevin A., supra, 240 Cal.App.4th at pp. 1246–1247.)
Despite the conservatee’s repeated insistence he had a right to a jury trial, the court
accepted the attorney’s waiver based on its understanding of the law allowing an
attorney to make such a waiver on behalf of a client if it was in their best interest. (Id. at
p. 1247, emphasis added.) On this record, the Kevin A. court concluded the attempt to
waive the right to a jury trial by the attorney over the express wishes of his client required
reversal. (Id. at p. 1253.)
Since Kevin A. was decided, various districts have addressed the same issue in
published opinions. Most of these opinions have reached conclusions consistent with the
decision in Kevin A. Only one published opinion has taken a slightly different approach,
focusing on the seriousness of the error, and whether the failure to advise a conservatee
of their right to a jury trial on the record can be considered harmless.
Among the most recent published opinions is one from the First District Court of
Appeal in K.R. v. Superior Court (2022) 80 Cal.App.5th 133 (K.R.). The K.R. court
emphasized there was consistency among appellate courts on the need to personally
advise potential conservatees in LPS proceedings of the statutory right to a jury trial.
(K.R., at p. 143.) In K.R., the conservatee was never advised of his right to a jury trial
before an initial hearing, where evidence was presented. (Id. at p. 137–138.) However,
following another hearing, the conservatee’s attorney made a specific request for a jury
trial pursuant to section 5350, subdivision (d)(1). (Id. at p. 138.) The court denied that
request (ibid.), citing case law holding, “no statutory right to a jury trial exists until
created by the Legislature, […] unless it is constitutionally required.” (See Baber v.
Superior Court (1980) 113 Cal.App.3d 955, 961.) The K.R. court rejected this
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conclusion focusing on the use of both “hearing” and “trial” in section 5350,
subdivision (d)(1), and the fact the right to a jury applies only to a trial. (K.R., at
pp. 140.)
The K.R. court ultimately concluded the failure to advise a potential conservatee of
the right to a jury trial must result in automatic reversal and not be the subject of a
harmless error review. (K.R., supra, 80 Cal.App.5th at p. 143.) The K.R. court felt this
conclusion was consistent with the opinion in Conservatorship of Heather W. (2016) 245
Cal.App.4th 378 from the Second District Court of Appeal, where there was an
advisement on the right to testify, but no advisement on the right to a jury trial.
(Heather W., at p. 384.) This set of facts led the Heather W. court to conclude the failure
to advise a conservatee of their right to a jury trial on the record could not be considered
harmless without also showing there was substantial evidence the conservatee lacked the
capacity to agree to such a waiver. (Heather W., at p. 384, citing Kevin A., supra, 240
Cal.App.4th at p. 1252.)
The one case that seems to take a slightly different approach is from the Sixth
District Court of Appeal. In Conservatorship of C.O. (2021) 71 Cal.App.5th 894, 908–
909 (C.O.), the court held while a trial court must advise an individual on the record of
the right to have the establishment or reestablishment of a conservatorship decided by a
jury, absent facts suggesting the conservatee’s counsel lacked actual authority,
disregarded the client’s wishes, or that the conservatee did not have knowledge of the
right to a trial by jury, counsel could waive the right to a jury trial on behalf of the
conservatee. (Id. at p. 911, emphasis added.) The C.O. court specifically noted, “ ‘[t]he
Probate Code does not require a jury trial or an express waiver of a jury …,’ ” only notice
of the availability of this right. (Id. at p. 910, citing Prob. Code, § 1828.)
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In C.O., while there was no advisement of the right to a jury trial on the record
from the judge, the following presentation was made by the attorney representing the
C.O. at the initial hearing:
“ ‘I have spoken to all of my clients, have informed them of their right to be
present, the right to have a court—a jury trial, a court trial, or a summary
hearing. And unless otherwise stated, they’ve waived these rights.’
“C.O.’s attorney informed the trial court he would get C.O., who was ‘right
outside.’ Once C.O. was in the courtroom, his attorney stated (in C.O.’s
presence): ‘Your Honor, I’ve had a chance to speak with [C.O.] a couple of
times before today’s court hearing. And at this time [C.O.] is requesting a
court trial. It looks like we have discussed the possibility of doing that on
May 23rd [2019]. And that would be our request.’ ” (C.O., supra, 71
Cal.App.5th at p. 902.)
The court stated the question of whether there was a waiver of the right to a jury trial was
a question of fact. (C.O., at p. 915.) The C.O. court concluded these representations by
the attorney to the court while in C.O.’s presence at the initial hearing, C.O.’s failure to
ask for a jury trial while attending the trial, and the lack of evidence showing C.O. did not
understand the representations made by his attorney, constituted substantial evidence
C.O. “knowingly and intelligently” waived his right to a jury trial. (Ibid.) On the basis
of this record, the C.O. court concluded an automatic reversal was not necessary and a
harmless error test could be applied. (C.O., at p. 919.)
We see no reason to abandon the approach taken in Kevin A. at this time, given the
facts of this case. The facts in C.O. provided much more evidence the conservatee had
been advised of his right to a jury trial. For instance, the appellant in C.O. was present in
the courtroom with his attorney when the right to a jury trial was being discussed. (See
C.O., supra, 71 Cal.App.5th at p. 902.) In this case, P.D. was not present when her
attorney made the representation to the court that she was requesting a bench trial. We
also reach this conclusion in recognition of People v. Sivongxxay (2017) 3 Cal.5th 151,
167, in which the California Supreme Court again emphasized the importance of the need
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to advise defendants of their right to a jury trial on the record. This language has been
cited with approval in several opinions considering LPS Act petitions. (See, e.g.,
Conservatorship of Joanne R. (2021) 72 Cal.App.5th 1009, 1020 [in which the court’s
advisement was found adequate even though the conservatee only waived the right to a
jury trial after learning there would be a delay of nine months before a jury could be
seated].)
A. Application
The record provided in this case fails to show that appellant was ever advised of
her right to a jury trial on the record. At the first hearing on the conservatorship petition
on September 8, 2021, counsel for appellant first acknowledged that appellant was not
present at the hearing, but then went on to state “Ms. [D.]’s requesting a bench trial.”
Appellant was again not present for an October 6, 2021, hearing when her attorney
requested a continuance to complete his investigation. Appellant did not make an
appearance in the case until the contested hearing held on October 20, 2021, when she
testified. The issue of her choice of a bench trial versus a jury trial was not addressed
with appellant at any time on the record.
Again, the facts in C.O. provided much more evidence supporting the conclusion
the conservatee had been advised of his right to a jury trial. (See C.O., supra, 71
Cal.App.5th at p. 902.) The mere statement “Ms. [D.]’s requesting a bench trial,” in this
case offers nothing more than a suggestion that appellant might have been aware of her
right to a jury trial.
As set out in Kevin A., Blackburn and Tran considered statutory language
consistent with the LPS Act, which had the same underlying goal, i.e., protecting the
public and treating severely mentally ill individuals. (Kevin A., supra, 240 Cal.App.4th
at pp. 1248, 1250.) Therefore, the failure to advise appellant of her right to a jury trial
can only be excused if there was substantial evidence in the record appellant lacked the
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capacity to waive such a right. (Id. at pp. 1250–1251.) No finding was made by the trial
court that appellant lacked the capacity to decide between a jury trial or a bench trial, and
no evidence addressing that question was specifically offered into the record.
Because a reversal is required in this matter, we will not address appellant’s
remaining contentions in this appeal.
DISPOSITION
The orders granting the petition for an LPS Act conservatorship are reversed.
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