Conservatorship of the Person and Estate of BRYAN S. PUBLIC GUARDIAN OF MENDOCINO COUNTY, as Conservator, etc., Petitioner and Respondent, v. BRYAN S.,
A156419
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Filed 11/18/19
CERTIFIED FOR PARTIAL PUBLICATION* (Mendocino County Super. Ct. No. SCUK-LPSQ-13-1685)
Following a court trial, the court found appellant Bryan S. to be gravely disabled, appointed the Mendocino County Public Guardian/Conservator (public guardian) as his conservator, and imposed legal
* Pursuant to
I. FACTUAL AND PROCEDURAL BACKGROUND
Bryan was arrested in October 2016 for resisting arrest after sheriff‘s deputies responded to a woman‘s call that he yelled at and chased her while she walked her dog. The trial court determined that Bryan was not competent to stand trial. A doctor recommended a treatment plan that included psychotropic medication to restore Bryan to competency, and he was taken to Napa State Hospital for treatment. After treating Bryan for two years, the hospital reported that it was unlikely he would soon regain competency, and it recommended the initiation of conservatorship proceedings.
In October 2018 the public guardian filed a conservatorship petition alleging that Bryan was gravely disabled as a result of a mental disorder. The petition was supported by the report of a clinical psychologist who evaluated Bryan and concluded that he was gravely disabled due to a mental disorder (schizophrenia).
At the first hearing on the petition on November 1, 2018, the trial court appointed the public defender to represent Bryan and granted the request for a temporary conservatorship. The court then scheduled a further hearing on the request for a permanent conservatorship for November 29.
At the November 29 pretrial conference, Bryan‘s attorney stated that Bryan wished to contest the permanent order and requested a trial. The trial court suggested scheduling the trial for January 28, 2019, and Bryan‘s attorney agreed to the date without objection. The parties later stipulated that Bryan would appear at trial by video-conference because of concerns that transporting him from his facility in Redding to trial in Ukiah would aggravate Bryan‘s health issues.
A court trial began as scheduled on January 28, 2019. County counsel called Bryan as a witness with no objection from Bryan‘s attorney. The
Following testimony and closing arguments, the trial court concluded that the public guardian had established beyond a reasonable doubt that Bryan was gravely disabled as a result of a mental disorder and was currently unable to provide for food, clothing, or shelter. The court appointed the public guardian as the conservator for a one-year period and issued letters of guardianship.
II. DISCUSSION
Bryan does not challenge the sufficiency of the evidence supporting the conservatorship order. Instead, he argues two issues that were not raised below. We conclude that the first issue was forfeited and the second lacks merit.
A. Bryan Forfeited His Timeliness Objection.
The LPS Act provides for the appointment of a conservator for up to one year for a person determined to be “gravely disabled as a result of a mental health disorder.” (
Bryan claims that he was prejudiced by the failure to hold the trial within the time set forth in
Bryan‘s appellate attorney represented in his briefing that “in many parts of the State little effort is made to comply with the timing provisions of
We decline to do so. We do not share the view that the interests of conservatees and their attorneys are so misaligned that objections to hearing delays can and will never be preserved below. And even if there might be a case in which a reviewing court would find it appropriate to expound on the issue without an objection below, this case is not it. (Conservatorship of M.M., supra, 39 Cal.App.5th at p. 501 [conservatee forfeited claim that LPS Act trial was not started in timely manner]; Conservatorship of Kevin M. (1996) 49 Cal.App.4th 79, 85, 92-93 [appellant waived objection to untimely trial by failing to object to trial court‘s unwritten procedure of automatically reserving the right to request a jury trial at any time during the conservatorship].) Because there was no objection below, the record here is undeveloped on the reasons for the delay, whether the delay prejudiced Bryan, or whether the delay might even have been for Bryan‘s benefit, such as to allow him to participate by video-conference.
Appellate courts that have addressed a failure to timely hold the conservatorship trial have done so in cases in which objections were raised below. (See Conservatorship of Kevin M., supra, 49 Cal.App.4th at p. 86 [appellant objected to trial court‘s jurisdiction to proceed with trial outside statutory time limits]; Conservatorship of James M. (1994) 30 Cal.App.4th 293, 296.) James M. is instructive. There, a conservatee‘s trial counsel agreed to schedule trial for the reappointment of a conservator more than one month after the demand for trial. (James M., at p. 296.) Counsel later objected to a request for a four-day continuance because the conservatee could not be transported on the day of trial due to a snowstorm. (Ibid.) On appeal, the conservatee conceded that the original trial date scheduled outside the statutory time limits by agreement of all parties would have been proper, and instead challenged only the four-day continuance to which he objected below. (Id. at p. 297.) Here, by contrast, Bryan‘s trial attorney agreed to the trial court‘s scheduling proposal. The timeliness issue was thus forfeited, and no record on the issue was developed as it was in James M. (Id. at p. 296.) Given the lack of a developed record, we decline to exercise our discretion to delve into the forfeited timeliness issue.
B. Bryan Did Not Have a Right to Refuse to Testify Based on Equal Protection Principles.
Bryan next argues that requiring him to testify violated his equal protection rights because others who are subject to different kinds of civil commitments cannot be compelled to testify. Although Bryan again did not raise this issue below, we exercise our discretion to address it because it raises a pure question of law and does not require the resolution of disputed factual issues. (People v. Dunley (2016) 247 Cal.App.4th 1438, 1447 (Dunley); People v. Curlee (2015) 237 Cal.App.4th 709, 715-716 (Curlee) [addressing equal protection issue in part to forestall a later claim of ineffective assistance of counsel].) We nonetheless reject Bryan‘s argument on the merits.
There is no constitutional right to refuse to testify in civil proceedings. (Cramer v. Tyars (1979) 23 Cal.3d 131, 137-138.) But “[u]nder both the United States and
California Constitutions, a person has the right to refuse to answer potentially incriminating questions put to him or her in any proceeding; in addition, the defendant in a
Courts have grappled with the application of these principles to civil proceedings that share some characteristics of criminal proceedings. In Hudec, supra, 60 Cal.4th at page 818, the Supreme Court held that a person found not guilty of a felony by reason of insanity (NGI) had a statutory right to refuse to take the witness stand in civil proceedings to extend the person‘s commitment. The court based its holding on
Conservatorship proceedings are civil in nature, and it has long been established that “a proposed conservatee cannot refuse to testify at his own conservatorship trial” on the basis of a Fifth Amendment right against self-incrimination. (Conservatorship of Baber (1984) 153 Cal.App.3d 542, 550.) Bryan nonetheless insists that he has a right to refuse to testify based on equal-protection principles. He claims that proposed LPS Act conservatees are situated similarly with other classes of people subject to involuntary civil commitments, such as those who face NGI commitment proceedings. According to him, since people in those classes have a right to refuse to testify, proposed LPS Act conservatees should also have one. We are not persuaded.
” ’ “The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly
situated groups in an unequal manner.” [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but “whether they are similarly situated for purposes of the law challenged.” ’ [Citation.] In other words, we ask at the threshold whether two classes that are different in some respects are sufficiently similar with respect to the laws in question to require the government to justify its differential treatment of these classes under those laws.” (People v. McKee (2010) 47 Cal.4th 1172, 1202 (McKee).)
Following Hudec, courts have concluded that those subject to sexually violent predator (SVP) and mentally disordered offender (MDO) proceedings are similarly situated to those subject to NGI proceedings for purposes of the testimonial privilege. (Curlee, supra, 237 Cal.App.4th at p. 720 [SVP
Bryan argues that prospective LPS Act conservatees are similarly situated with NGI‘s, SVP‘s, and MDO‘s, because they are also subject to involuntary civil commitment as a result of their mental health. We acknowledge that all four types of civil commitments focus on whether the subject suffers from a mental disorder. (
These differences are fatal to Bryan‘s equal protection claim. As our Supreme Court has explained, there is “no similarity between the aims and objectives of the [LPS Act] and those of the criminal law. . . . ‘The commitment is not initiated in response, or necessarily related, to any criminal acts.’ ” (Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1015; see also Conservatorship of Ben C. (2007) 40 Cal.4th 529, 543 [because criminal defendants and LPS Act conservatees are not similarly situated, no constitutional right to independent review in appeal from imposition of LPS Act conservatorship where appointed counsel finds no arguable issues].) Again, the purpose of civil commitments for NGI‘s, SVP‘s, and MDO‘s is to protect the public from people who have been found to be dangerous to others and who need treatment for a mental disorder. (Dunley, supra, 247 Cal.App.4th at pp. 1448-1449.) By contrast, the primary
purposes of the LPS Act are to provide prompt evaluation and treatment of persons with mental health disorders; to provide such people with individualized treatment, supervision, and placement services; and to encourage the use of all resources to accomplish these objectives. (
The absence of a similar connection with the criminal justice system is directly relevant to whether LPS Act conservatees are similarly situated to the other three types of offenders with respect to the law in question. (McKee, supra, 47 Cal.4th at p. 1202.) “As expressed by the highest authority, the historic purpose of the privilege against being called as a witness has been to assure that the criminal justice system remains accusatorial, not inquisitorial. [Citations.] The extension of the privilege to an area outside the criminal justice system . . . would contravene both the language and purpose of the privilege.” (Cramer v. Tyars, supra, 23 Cal.3d at pp. 137-138.) Hudec concluded that NGI‘s had the right to refuse to testify because of the statutory guarantee of all constitutional rights afforded in criminal proceedings (
Although we hold that Bryan did not have the right under the equal protection clause to refuse to testify, our “holding does not, in any way, intimate that a prospective conservatee will be compelled to answer questions which may incriminate him in a criminal matter.” (Conservatorship of Baber, supra, 153 Cal.App.3d at p. 550.) Bryan
does not argue that county counsel asked questions that led to incriminating testimony, and the public guardian does not claim it was entitled to elicit such testimony. Bryan‘s constitutional rights were not violated.
III. DISPOSITION
The order establishing a conservatorship is affirmed.
Humes, P.J.
WE CONCUR:
Banke, J.
Sanchez, J.
Conservatorship of the Person and Estate of Brian S. A156419
Trial Court: Superior Court of the County of Mendocino
Trial Judge: Hon. Jeanine B. Nadel
Counsel for Objector and Appellant: Rudy Kraft, under appointment by the Court of Appeal
Counsel for Petitioner and Respondent: Katharine L. Elliott, County Counsel, County of Mendocino; Charlotte E. Scott, Deputy Counsel, County of Mendocino
Conservatorship of the Person and Estate of Brian S. A156419