80 Cal.App.5th 133
Cal. Ct. App.2022Background:
- On Oct. 7, 2021 Napa County Public Conservator petitioned for an LPS conservatorship over K.R.; hearing originally noticed for Nov. 16, 2021 and the matter was repeatedly continued.
- On Mar. 2, 2022 the court heard testimony (forensic psychologist, deputy conservator, and K.R.), considered evidence and argument, and granted the conservatorship.
- K.R. was never personally advised on the record of her statutory right to a jury trial under Welf. & Inst. Code § 5350; nor did she or counsel demand a jury prior to the Mar. 2 proceeding.
- Immediately after the court announced its decision on Mar. 2, K.R.’s counsel requested a jury trial under § 5350; the court denied the demand on Mar. 7, 2022, citing Baber.
- K.R. sought a writ of mandate; the Court of Appeal held the Mar. 2 proceeding was the statutorily required “hearing,” K.R.’s post‑hearing jury demand was timely, there was no knowing waiver, and the court’s failure to personally advise required reversal.
- Disposition: peremptory writ granted directing the superior court to vacate its denial, grant the jury demand, and schedule a jury trial on the conservatorship petition.
Issues:
| Issue | K.R.'s Argument | Public Conservator's Argument | Held |
|---|---|---|---|
| 1. Whether the Mar. 2 proceeding was a statutorily required “hearing” or a bench trial | Mar. 2 was the § 5365 hearing on the petition; statute distinguishes hearing from trial | The Mar. 2 proceeding had trial‑type features and thus was a court trial | The court held Mar. 2 was the statutorily contemplated hearing; § 5350 distinguishes hearing and trial and a trial may not be conducted absent a demand |
| 2. Timeliness of K.R.’s jury demand | Demand made immediately after the hearing is timely under § 5350(d)(1) | Earlier court appearances triggered the five‑day demand window (so K.R. was late) | Demand was timely when made after completion of the March 2 hearing; mere continuances do not start the five‑day clock |
| 3. Waiver/forfeiture by participating without objecting | No waiver or forfeiture: parties reasonably treated Mar. 2 as the hearing; waiver must be knowing and voluntary | Participation without objection constituted forfeiture/waiver of jury right (relying on Joseph W.) | No forfeiture; appellate court also exercised discretion to reach merits; no knowing, personal waiver appeared in record, so waiver rejected |
| 4. Effect of trial court failing to personally advise K.R. of jury right | Failure to advise prevented a knowing, voluntary waiver; error not harmless | Any failure was harmless because counsel could waive on client’s behalf | Failure to personally advise deprived K.R. of the fundamental right to choose judge or jury; error not harmless and requires reversal |
Key Cases Cited
- Baber v. Superior Court, 113 Cal.App.3d 955 (no right to jury at § 5364 rehearing)
- Conservatorship of Joseph W., 199 Cal.App.4th 953 (interpreting meaning of “hearing” and discussing forfeiture by participation)
- Conservatorship of C.O., 71 Cal.App.5th 894 (discussing necessity of personal advisement and when counsel’s waiver may suffice)
- Conservatorship of Heather W., 245 Cal.App.4th 378 (holding personal advisement of jury right is required and denial is reversible)
- Conservatorship of Kevin A., 240 Cal.App.4th 1241 (same principle on personal advisement and counsel waiver when client lacks capacity)
- People v. Romero, 44 Cal.4th 386 (distinguishing forfeiture from waiver)