COUNTY OF LOS ANGELES, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
B249494 (Los Angeles County Super. Ct. No. BA352179)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Filed 12/19/13
CERTIFIED FOR PUBLICATION
Petition denied.
John F. Krattli, County Counsel, Leah D. Davis, Assistant County Counsel for Petitioner.
Jackie Lacey, District Attorney, Phyllis C. Asayama and Matthew Brown, Deputy District Attorneys for Real Party in Interest.
Background
The charged felony
While suffering from dementia that caused him to believe that people were stealing his veterans’ benefits, defendant Nattie Kennebrew, Jr., shot and killed a handyman who had come to do repairs at his apartment on January 28, 2009.
The evidence at Kennebrew’s preliminary hearing was that on January 28, 2009, Kennebrew, then 83 years old and claiming to be legally blind, shot and killed Gerardo Ramos, who had come to his apartment to repair the garbage disposal. After shooting Ramos in the chest and head at close range, he tried to shoot Vyktor Arce, the building’s resident manager, also at close range, but failed apparently because his gun was out of bullets. After being admonished and waiving his Miranda rights, Kennebrew told the investigating detective that he believed that the victim, the apartment manager, and an employee of the Veterans Administration had conspired to steal his veterans’ benefits, in part because he is Black.
At the conclusion of his preliminary hearing on June 17, 2009, Kennebrew was held to answer on charges of murder (
In a February 7, 2012 application for a mental health conservatorship and reexamination of Kennebrew in anticipation of his maximum commitment date,2 doctors at Patton reported that Kennebrew suffered from “dementia of the Alzheimer’s type, with late onset, with behavioral disturbance,” ongoing paranoid delusions, worsening dementia, inability to accept voluntary treatment, and inability “to provide for his . . . personal needs for food, clothing, or shelter as a result of a mental disorder.” The report identified Kennebrew as “a danger to others because of fixed delusion of persecutory type,” noting that although he has not been violent during his hospitalization, he had threatened to kill a fellow patient at Patton, indicating “that the risk of danger to others is high and he needs to be placed in a structured environment.”
The court again referred the matter to the public guardian for investigation on October 25, 2012, based on the Patton physicians’ application for conservatorship. A November 7, 2012 neuropsychological evaluation by medical personnel at Patton cited Kennebrew’s threat to kill his roommate soon after his arrival at Patton, and based on his lack of remorse or guilt about the victims of his charged offenses (“Kennebrew continues to believe he did nothing wrong”), concluded that “there is a significant likelihood that he may be violent in the absence of supervised treatment.”
The public guardian’s November 16, 2012 response to the court explained why it would not petition for conservatorship: Dementia is not recognized as a recoverable mental health illness and thus does not meet the criteria for a conservatorship under the LPS Act.
On April 5, 2013, the probate department of the court, acting independent of the criminal department in case no. BA352179, established a conservatorship for Kennebrew.
On April 10, 2013, the criminal department of the court ordered the public guardian to provide it with the available options “to place Mr. Kennebrew in an environment where he will not pose a danger to the public.” The public guardian’s office responded on May 8, 2013, explaining why it believed conservatorships under the LPS Act would not be appropriate for Kennebrew, and why the conservatorship established by the probate department was appropriate under the circumstances.
Following hearings on May 9 and 15, 2013, and written submissions by the People and the public guardian, the court found that Kennebrew remains incompetent to stand trial; that he meets the requirements for a conservatorship under the LPS Act (
The challenged orders
Based on these findings and the court’s determination that the public guardian’s refusal to act as conservator abused its discretion, on May 15, 2013 the court ordered the public guardian to act as conservator for Kennebrew; that Kennebrew remain at Patton; and that the public guardian petition for establishment of a conservatorship pursuant to
Los Angeles County Counsel, representing the public guardian, petitioned this court for writ of mandate on behalf of the County of Los Angeles, on June 20, 2013. The petition asks this court to set aside respondent court’s May 15, 2013 orders, on two grounds: (1) that the public guardian’s office has sole discretion to petition for conservatorship under the LPS Act, or to decline to file such a petition, and the superior court has no authority to order the public guardian to act as a conservator or to petition for conservatorship; and (2) that the public guardian’s office correctly determined that Kennebrew is not eligible for a conservatorship under
On June 26, 2013, this court ordered a temporary stay of the May 15, 2013 orders in People v. Kennebrew, supra, LASC Case No. BA352179, pending further order. On October 1, 2013, we entered an order to show cause why the orders of May 15, 2013 in that case should not be vacated and the court should not be ordered to issue a new and different order.
Based on our review of the responses to the order to show cause by the Los Angeles County Counsel on behalf of petitioner, and the Los Angeles District Attorney on behalf of real party in interest People of the State of California, we deny the requested relief for the reasons explained below.
Discussion
A. Conservatorships under the LPS Act
The LPS Act, which governs the involuntary treatment of the mentally ill in California, was enacted in order to end “the inappropriate and indefinite commitment of the mentally ill, providing prompt evaluation and treatment of persons with serious
Three types of conservatorships are relevant to this case, the first two of which come under the LPS Act, and require a finding that the prospective conservatee is “gravely disabled.” However, for each of these conservatorships the requirements for a determination that a prospective conservatee is gravely disabled is different.
The first of these conservatorships under the LPS Act, referred to as a subdivision (h)(1)(A), or “LPS conservatorship,” is one in which the conservatee, is “gravely disabled”—which is defined in this subdivision to mean that “as a result of a mental disorder,” the conservatee “is unable to provide for his or her basic personal needs for food, clothing, or shelter.” (
The second category of conservatorships under the LPS Act, known as a subdivision (h)(1)(B), or “Murphy conservatorship,” is one in which the conservatee is subject to a pending indictment or information charging him or her with a felony involving death, great bodily harm, or threat to the physical well-being of another; in which “as a result of mental disorder,” the conservatee is unable to understand or meaningfully participate in the pending criminal proceedings; and in which the conservatee has been found to be mentally incompetent under the procedures set forth in
The third type of conservatorship relevant to this case is a “probate conservatorship,” under
In ordering the public guardian to establish a conservatorship, the trial court found that Kennebrew comes within the “gravely disabled” definitions that apply to conservatorships under both
B. Standards of Review
Petitioner contends that the trial court erred by finding that Kennebrew’s dementia qualifies as a “mental disorder” within the meaning of the LPS Act (contrary to the public
The issue in the trial court was whether the public guardian had abused its discretion by refusing to establish a conservatorship and to act as Kennebrew’s conservator. The effect of the trial court’s order was to require the public guardian to establish a conservatorship and to act as Kennebrew’s conservator—in effect, a writ of mandate. A traditional writ of mandate is appropriate “to compel a public official to perform an official act required by law.” (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 442.) Although mandamus cannot be used to compel an official to exercise discretion in a particular manner, it may issue in order to require that discretion is exercised consistent with the law. (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 118; Common Cause v. Board of Supervisors, supra, 49 Cal.3d at p. 442 [mandate may issue to compel public official to exercise discretion “under a proper interpretation of the applicable law”].)
The trial court in this case reviewed the public guardian’s determination that the applicable law does not obligate or empower it to establish a conservatorship for Kennebrew or to act as his conservator under the LPS Act, after affording the public guardian the opportunity to be heard with respect to the facts and the law. (Klajic v. Castaic Lake Water Agency (2001) 90 Cal.App.4th 987, 995 [under
C. The Trial Court Correctly Ordered The Public Guardian To Petition For A Murphy Conservatorship.
Petitioner contends that the public guardian correctly exercised its discretion to refuse to seek a conservatorship under the LPS Act because Kennebrew’s dementia does not qualify as a “mental disorder,” one of the defining requirements for conservatorships
The provisions for Murphy conservatorships were added to the LPS Act in order to distinguish between persons who do, and do not, present a danger to the public. They are intended to “address the difficult problem of integrating and resolving the conflicting concerns of protecting society from dangerous individuals who are not subject to criminal prosecution,” while “preserving a libertarian policy regarding the indefinite commitment of mentally incompetent individuals who have yet to be convicted of criminal conduct, and safeguarding the freedom of incompetent criminal defendants who present no threat to the public.” (People v. Skeirik (1991) 229 Cal.App.3d 444, 456; Karriker, supra, 149 Cal.App.4th at p. 775.) For a conservatee under
The Karriker decision held that the public guardian cannot be ordered to establish a conservatorship under the LPS Act if it determines—in its sole discretion—that the conservatee’s dementia does not constitute a “mental disorder” within the meaning of the LPS Act. (Karriker, supra, 149 Cal.App.4th at pp. 778-779, 783.) Therefore, petitioner contends, the public guardian was justified in determining that the Murphy conservatorship sought by the district attorney and ordered by the court in this case was not appropriate, because—as the court decided in Karriker—dementia is not a “mental disorder” within the meaning of the LPS Act.
Upon independent review, we conclude that the trial court in this case correctly interpreted the LPS Act to provide that dementia is a “mental disorder” within the LPS Act’s meaning, contrary to the statutory interpretation urged by the public guardian and set forth in Karriker. We also conclude that on this point the Karriker decision is factually distinguishable and does not compel a contrary interpretation of the applicable statutes.
1. The Facts Of The Karriker Decision Distinguish It From The Case At Hand.
The facts in Karriker are somewhat similar to those in the case at hand, but the differences are significant. The defendant in Karriker had been charged by complaint with one felony count of making a criminal threat (
In order to qualify for a Murphy conservatorship—but not an LPS conservatorship under
Moreover, in this case, the trial court found that Kennebrew’s probate conservatorship (which permitted his removal to his son’s home in Michigan, rather than his placement in a secure locked mental health facility under the court’s jurisdiction) did not address the court’s public safety concerns. That is a statutorily mandated factor, not present in Karriker, which controls Kennebrew’s placement in this case. (
2. Dementia is a “mental disorder” within the meaning of the LPS Act.
In Karriker, the appellate court reversed the trial court’s decision to impose an LPS conservatorship not only because it concluded that a probate conservatorship would be appropriate under the circumstances, but also because it found that the defendant’s dementia was not a qualifying mental disorder within the meaning of
Petitioner takes the same position in this case. It argues that in order to qualify for a Murphy conservatorship under the LPS Act, Kennebrew must be found to be suffering from a “mental disorder,” and that the trial court exceeded its authority “because the defendant suffers from dementia, which is not a qualifying diagnosis” under the LPS Act.
Petitioner concedes that although Karriker found that dementia is not a mental disorder under the LPS Act, an earlier decision held that the term “mental disorder” in the LPS Act refers to “those disorders listed by the American Psychiatric Association in its Diagnostic and Statistical Manual of Mental Disorders [DSM].” (Conservatorship of Chambers (1977) 71 Cal.App.3d 277, 283, fn. 5.) The DSM-IV lists dementia as among mental disorders that include cognitive deficits resulting from (among other causes) “the combined effects of cerebrovascular disease and Alzheimer’s disease.”11 A 1989 Opinion of the California Attorney General finds, consistent with the appellate court’s reference to the DSM definition of mental disorders, that the Legislature intended that the general term “mental disorder” in the LPS Act would “evolve with the times” in order to reflect the term’s “current meaning in the medical and psychological community.” (72 Ops.Cal.Atty.Gen. 41, 47, 49 (1989).) Significant here, that attorney general opinion
The linchpin of petitioner’s rejection of this authority and contrary interpretation of the LPS Act lies in its contention that the Legislature’s enactment of
Because
We are not persuaded that this is what the Legislature intended. Neither
Petitioner has argued that its interpretation of
The Rules Committee analysis states that existing law (before the passage of Sen. Bill No. 1481) permitted placement of conservatees in locked facilities under both the LPS Act and the Probate Code, but that most courts at that time would not authorize placement of a dementia patient in a secured facility except under an LPS conservatorship—a requirement that it found to be “unnecessarily cumbersome . . . and unnecessary as applied to dementia patients.” To resolve this problem, Senate Bill No. 1481 would incorporate into the Probate Code “the protections of the LPS conservatorship,” in order to alleviate this unnecessary burden by allowing courts to authorize placement of probate conservatees with dementia in locked or secured facilities, under the same circumstances and conditions as apply to LPS conservatorships.
Far from indicating a legislative intention that dementia is not a qualifying mental disability under
The establishment of Kennebrew’s existing probate conservatorship (the only apparent alternative if Kennebrew’s Murphy conservatorship and placement at Patton is not renewed), did not require—or permit—the probate court to consider the potential threats to public safety resulting from his release from a secured facility and his placement with his son in a private residence. Under
3. The order requiring the public guardian to seek a Murphy conservatorship for Kennebrew did not exceed the trial court’s authority or abuse its discretion.
The public guardian was required to “investigate all available alternatives to conservatorship and [to] recommend conservatorship to the court only if no suitable alternatives are available.” (
Petitioner contends also that the trial court abused its discretion by ordering the public guardian to seek an LPS Act conservatorship for Kennebrew because only the conservatorship investigator (in this case the public guardian)—not the court—has discretion to decide whether to seek an LPS conservatorship in any particular case. (Karriker, supra, 149 Cal.App.4th at pp. 777-778, 782-787.)
But the Karriker decision also expressly states that whether the court did or did not have authority to review the investigator’s refusal to seek an LPS conservatorship was irrelevant to its decision. “Accepting the premise that a public conservator might abuse his or her discretion in refusing to file a petition for a conservatorship under the LPS Act,” the Karriker decision explains, still no LPS Act conservatorship was available under applicable law. (Karriker, supra, 149 Cal.App.4th at p. 788.) Moreover, as petitioner expressly confirms, the court in Karriker left undecided the question whether a public guardian might abuse its discretion by failing to seek an LPS conservatorship “under some other set of facts.”15 In other words, Karriker did not determine whether a public guardian’s refusal to establish an LPS conservatorship might be reviewed as an abuse of discretion.
The case at hand arose “under some other set of facts” than those in Karriker. In this case, unlike in Karriker, the public guardian’s refusal to seek an LPS conservatorship resulted from its erroneous interpretation of the law, to preclude a Murphy conservatorship when dementia is involved. And unlike in Karriker, the alternative
The public guardian’s failure to consider whether Kennebrew remained dangerous to the public is hardly surprising. The duties of the conservatorship investigator under the LPS Act, and the subjects to be addressed in its report to the court, are set forth at length in
We therefore conclude that Karriker correctly stands for the proposition that when the statutory requirements for an LPS conservatorship are not met, the superior court may abuse its discretion by ordering the public guardian to seek such a conservatorship. But we decline to extend that rule to hold that the superior court lacks authority to determine that the public guardian has abused its discretion when its erroneous interpretation of a controlling statute has resulted in a refusal to seek an LPS conservatorship when the statutory requirements for that remedy are met.
Conclusion
Disposition
The writ is denied, and the stay of proceedings in the superior court is lifted as of the date this decision becomes final. (See Cal. Rules of Court, rule 8.490(b)(2).)
TO BE PUBLISHED.
CHANEY, J.
We concur:
ROTHSCHILD, Acting P. J.
JOHNSON, J.