Conservatorship of the Person and Estate of JOSE B.
B292172
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Filed 6/18/20
CERTIFIED FOR PUBLICATION
Los Angeles County Super. Ct. No. ZE032369
PUBLIC GUARDIAN OF THE COUNTY OF LOS ANGELES, as Conservator, etc., Petitioner and Respondent, v. JOSE B., Objector and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert S. Harrison, Judge. Affirmed.
Christopher Lionel Haberman, under appointment by the Court of Appeal, for Objector and Appellant.
Mary C. Wickham, County Counsel, Joyce M. Aiello, Assistant County Counsel, and William C. Sias, Deputy County Counsel, for Petitioner and
Jose B. is a conservatee subject to a conservatorship under the Lanterman-Petris-Short (LPS) Act (
On appeal, Jose contends the trial court violated
true, we emphasize the statutory obligation of trial courts to hold a jury trial within 10 days, with only a limited exception for a 15-day continuance if requested by the proposed conservatee.
However, the trial court’s failure to commence trial within 10 days of Jose’s jury trial demand does not support dismissal of the petition. The time limit in
FACTUAL AND PROCEDURAL BACKGROUND
A. Jose’s Conservatorship
On March 6, 2008 Public Guardian filed a petition for appointment as Jose’s conservator pursuant to
letters of conservatorship, appointing Public Guardian as the conservator of the person and estate of Jose. For the next 10 years Jose did not object to the annual renewal of the LPS conservatorship.
B. The Petition for Reappointment and Pretrial Proceedings
On February 28, 2018 Public Guardian filed a petition for reappointment as Jose’s conservator. The petition alleged Jose continued to be gravely disabled as a result of his mental disorder. The petition stated the conservatorship would automatically terminate on April 3, 2018 unless the trial court reappointed the conservator.
At the March 15, 2018 hearing, Jose contested the petition and demanded a jury trial. The attorney representing Jose indicated Jose’s assigned attorney was not available the first two weeks of April. The trial court responded, “Right. I understand. So the jury trial demand is entered; that will be—this is on a reappointment. . . . [S]o set it for May 24, 2018 for a jury trial . . . .” Jose’s attorney then asserted, “We’re objecting to the length of time.” The court responded, “All objections are reserved.” Another attorney representing Jose asked, “So we are just putting it over for that?” The court replied, “Right. . . . Transportation and charts that day. All right. So we’re going to have you come back in May and we’ll set the jury trial.” Jose answered, “All right.” Jose’s attorney inquired, “That’s for jury trial?” The court replied, “That’s for jury trial readiness.”
At the May 24, 2018 jury trial readiness hearing, Jose’s attorney stated, “So, Your Honor, we are ready; however, I’m not available next week, and I won’t be available really until after the 15th.” The trial court responded, “Of June. Okay. So we’ll set it for a jury trial readiness . . . continue the jury trial for
July 23rd, 2018 at 1:30 p.m. Jury trial . . . readiness July 19th. We need transportation and charts that day. All right. All objections are noted.”
At the July 19, 2018 hearing, the trial court set the jury trial for Monday, July 30. The trial court then inquired of Jose’s attorney, “[Y]ou want to set it for the following week for the Monday or the Thursday?” Jose’s attorney responded, “Whenever the court decides it’s the earliest possible date.” The court replied, “Monday is obviously earlier. Okay. Just that means you will be in solid trial back to back. They are also both of yours . . . .” Jose’s attorney asked, “Do I have a choice?” The court responded, “No, unfortunately. So
C. The Jury Trial and Reappointment of the Conservator
The jury trial commenced on July 30, 2018. Daniel McKinney, Ph.D., a clinical psychologist, testified as an expert witness for Public Guardian. Dr. McKinney was the director of the psychology program at Jose’s facility and a member of Jose’s treatment team. Dr. McKinney testified Jose suffered from schizophrenia and had delusions and auditory hallucinations. Jose told Dr. McKinney he owned an apartment in Downey, two national restaurant chains, a nationwide bank, and a nationwide credit card company. Further, Jose lacked insight into his mental condition because of his delusions. Jose averaged one shower a week and needed prompting to eat meals and to attend group sessions. When Jose went to group sessions, he did not actively participate because he did not see the need for them. Jose was taking psychotropic medication, but he informed Dr. McKinney he would not take his medication once he left the
facility. Dr. McKinney opined Jose was gravely disabled and could not treat his mental illness on his own without assistance. Further, Jose could not provide for his own basic needs for food, clothing, and shelter if he left the facility.
Jose testified on his own behalf. Jose stated if he was not in a conservatorship, he would live with his friends or family. He added, “I just want to be left alone in this place because I’ve been locked up all my life.” Jose testified he previously had schizophrenia, but he was no longer suffering from it. He stated, “I get smarter every time I read something, it goes through my mind and I react on it, that’s why.” Jose said the medication he was taking consisted of salt tablets that made him throw up and say things that were not right. Upon his release he would receive supplemental security income and general relief, as well as a retirement check from the police department once he called them.
On August 1, 2018 the jury found Jose was “presently gravely disabled due to a mental disorder.” The trial court granted the petition and reappointed Public Guardian as Jose’s conservator.
DISCUSSION
A. The LPS Act
“The LPS Act governs the involuntary detention, evaluation, and treatment of persons who, as a result of mental disorder, are dangerous or gravely disabled. (
Conservatorship of K.P. (2019) 39 Cal.App.5th 254, 257.) “As defined by the Act, a person is ‘gravely disabled’ if, as a result of a mental disorder, the person ‘is unable to provide for his or her basic personal needs for food, clothing, or shelter.’ (
A conservatee has a right to a jury trial upon demand at the establishment and annual renewal of a conservatorship. (Conservatorship of M.M. (2019) 39 Cal.App.5th 496, 499-500 (M.M.); Conservatorship of Kevin M. (1996) 49 Cal.App.4th 79, 84, 89 (Kevin M.); see
B. Jose Did Not Forfeit His Claim of Error
Relying on M.M., Public Guardian contends Jose forfeited any claim of error because he did not object to the delay of the jury trial and the case was continued to accommodate his attorney’s schedule. (M.M., supra, 39 Cal.App.5th at p. 501 [conservatee forfeited objection to the delay of trial date because he “never once complained to the trial court that his speedy trial rights were violated” and “[t]he initial trial setting and later continuances were largely at the request of his counsel due to [his] counsel’s unavailability,
Unlike the conservatee in M.M., Jose objected to the delay of the jury trial. Jose demanded a jury trial at the March 15, 2018 hearing. After Jose’s attorney indicated the assigned attorney was not available the first two weeks of April, the trial court stated it would set the jury trial for May 24, 2018, which the court later clarified was for a trial readiness hearing. Jose’s attorney responded, “We’re objecting to the length of time.” The court did not explain why it did not set the jury trial within 10 days of Jose’s demand—by March 26, 2018.2 Nor did the court
explain why it did not set the trial for April 16, the Monday after the two-week period during which Jose’s attorney was unavailable. Instead, the court set the trial readiness hearing for May 24—70 days after Jose’s jury trial demand. Jose’s objection “to the length of time” before the trial date preserved the issue for appeal.3
C. The Delay in Commencement of Jose’s Jury Trial Does Not Require Dismissal of the Petition
Jose contends the trial court was required to dismiss the petition to reappoint the conservator because the requirement a jury trial commence within 10 days of a demand is mandatory under
“Whether a requirement is mandatory or directory is determined largely by its effect: ‘If the failure to comply with a particular procedural step does not invalidate the action ultimately taken, . . . the procedural requirement is referred to as “directory.” If, on the other hand, it is concluded that noncompliance does invalidate subsequent action, the
requirement is deemed “mandatory.“’” (Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 340; accord, People v. Gray (2014) 58 Cal.4th 901, 909.) “‘[U]nless the Legislature clearly expresses a contrary intent, time limits are typically deemed directory.’” (Kabran, at p. 343; accord, Briggs v. Brown (2017) 3 Cal.5th 808, 849 (Briggs).) “Some courts have held that the presumption may only be overcome where ‘“a consequence or penalty is provided for failure to do the act within the time commanded.“’ [Citations.] Other courts have looked to whether the consequences of holding a time limitation mandatory or jurisdictional ‘would defeat or promote the purpose of the enactment.’” (Kabran, at p. 343; accord, In re D.P. (2018) 21 Cal.App.5th 154, 162, 165-166 [five-day time limit of
“Whether a particular statute is intended to impose a mandatory duty is a question of interpretation for the courts.” (People v. Lara (2010) 48 Cal.4th 216, 225; accord, City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 924 [“Courts determine whether an obligatory statutory provision should be given mandatory or directory effect by ascertaining the legislative intent.“].) “Of course, when the Legislature imposes particular statutory requirements, it generally does not intend for them to be disregarded. [Citation.] But where . . . ‘“the consequences of not obeying them in every particular are not prescribed, the courts must judicially determine them.“’” (City of Santa Monica, at p. 924.)
Although
not provide a consequence or penalty for failure to commence the trial within 10 days of the demand.” (Conservatorship of James M. (1994) 30 Cal.App.4th 293, 298 (James M.); accord, M.M., supra, 39 Cal.App.5th at p. 500; see Briggs, supra, 3 Cal.5th at p. 849 [“‘[A] time limitation for the court’s action in a matter subject to its determination is not mandatory (regardless of the mandatory nature of the language), unless a consequence or penalty is provided for failure to do the act within the time commanded.’“]; cf.
jurisdiction to rule on a conservatorship petition where, as here, the trial [was] delayed four days . . . .”
Moreover, “while the Legislature has broad authority to regulate procedure, the constitutional separation of powers does not permit statutory restrictions that would materially impair fair adjudication or unduly restrict the courts’ ability to administer justice in an orderly fashion.” (Briggs, supra, 3 Cal.5th at p. 854.) The Supreme Court in Briggs, in holding the requirement in Proposition 66, the Death Penalty Reform and Savings Act of 2016 (Gen. Elec. (Nov. 8, 2016) § 1), that the appellate review process for capital cases be completed within five years was directory rather than mandatory, declined to infer the voters “intended strict adherence to a fixed deadline that would undermine the courts’ authority as a separate branch of government.” (Briggs, at p. 858; accord, People v. Engram (2010) 50 Cal.4th 1131, 1151-1152 [“in light of the constitutional separation-of-powers considerations,”
Jose’s reliance on Kevin M., supra, 49 Cal.App.4th at page 87 is misplaced. There, the conservator challenged the conservatee’s right to a jury trial on the basis his demand for a jury trial was untimely. (Id. at p. 86.) The court held
the conservatorship petition” was mandatory, because the use of the term “‘shall’” rendered the statute “‘presumptively mandatory’” (Kevin M., at p. 87). The court explained, “‘[W]hen a statute directs things to be done by a
Unlike subdivision (d)(1) of
Jose also contends he was denied due process because of the significant delay of his jury trial. “In conservatorship cases, we balance three factors to determine whether a particular procedure or absence of a procedure violates due process: the private interests at stake, the state or public interests, and the risk that the procedure or its absence will lead to erroneous decisions.” (John L., supra, 48 Cal.4th at p. 150; accord, Conservatorship of Ben C. (2007) 40 Cal.4th 529, 539.) In
James M., the Court of Appeal recognized a conservatee’s “strong interest in a prompt determination of issues raised by a reappointment petition so that he or she may avoid the disabilities of conservatorship where they no longer are warranted.” (James M., supra, 30 Cal.App.4th at p. 299.) But as the court explained, “[T]his interest is sufficiently protected by the undisputed power of the superior court to dismiss the reappointment petition where the delay in the proceedings has proved prejudicial to the conservatee’s interests.” (Ibid.) Although the 137-day delay of the jury trial without any explanation by the trial court is troubling, and significantly greater than the four-day delay in James M., at page 296, Jose has not shown he was prejudiced by the delay. He does not challenge the jury’s finding he was gravely disabled or claim any error in the jury’s verdict. (See M.M., supra, 39 Cal.App.5th at p. 501 [noting conservatee conceded he received a fair trial and did not assert any error in the jury’s finding].) On these facts, Jose was not denied due process.
The judgment is affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
DILLON, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.