APPEAL from a judgment of the Superior Court of Kern County. Robert J. Anspach, Judge. (Super. Ct. No. MI5027).
The opinion of the court was delivered by: Cornell, Acting P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Shelbe Wilkinson was found to be a mentally retarded person pursuant to Welfare and Institutions Code section 6500.*fn2 She argues the commitment must be reversed because her attorney waived her appearance at the hearing without consulting with her and against her expressed desire to be present. She also asserts that the trial court's order was not supported by substantial evidence.
We agree that the trial court erred in accepting the attorney's waiver of Wilkinson's right to be present at the hearing over her objection. Ample case law recognizes that a proposed conservatee has the right under the due process clauses of the federal and state Constitutions to be present at a hearing that could result in the substantial deprivation of liberty. We also conclude the error was not harmless and reverse the trial court's order. We also address, and reject, Wilkinson's remaining arguments.
Finally, the People contend that Wilkinson is incompetent to appeal from the trial court's order and, even if she has the right to appeal, she is not entitled to appointed counsel. We reject these arguments as unsupported by logic or authority.
FACTUAL AND PROCEDURAL SUMMARY
The Kern County District Attorney's Office filed a petition pursuant to section 6500 et seq. seeking to have Wilkinson committed because she is mentally retarded and dangerous to herself and others. Section 6500 permits the commitment of an individual who is (1) mentally retarded, (2) dangerous to himself, herself, or others, and (3) has serious difficulty in controlling his or her dangerous behavior because of his or her mental retardation. (People v. Sweeney (2009) 175 Cal.App.4th 210, 216 (Sweeney).)
It is undisputed that Wilkinson is mentally retarded within the meaning of the statute. In addition, she is bilaterally deaf, is an insulin-dependent diabetic, and her psychological diagnoses include bipolar disorder, oppositional defiant disorder, and intermittent explosive disorder. Wilkinson is unable to control her diet and her diabetes, putting her in serious danger of harming herself because of fluctuations in her blood sugar levels. The trial court reached this conclusion and ordered Wilkinson committed to the California Department of Developmental Services for placement at a non-secure treatment facility that provides 24-hour staffing and is capable of providing services to meet Wilkinson's needs (hereafter the institute).
Initially, we must address the People's argument that this appeal is moot. The order appealed from was entered over one year ago. A commitment under section 6500 must be renewed on an annual basis. (Ibid.) Therefore, Wilkinson either has been released from her commitment or she currently is committed under a new order.
The issues raised here, however, are of continuing public importance. Since a section 6500 order typically will expire before an appeal can be heard, the issues will evade review unless we exercise our discretion to address the merits of the issues. (Sweeney, supra, 175 Cal.App.4th at p. 214.)
I. Wilkinson's Absence from the Trial
While a section 6500 commitment results in a substantial loss of liberty, it is a civil proceeding, not a criminal proceeding, because the goal of the proceeding is the treatment of the potential committee, not punishment. (Sweeney, supra, 175 Cal.App.4th at pp. 221-222; In re Watson (1979) 91 Cal.App.3d 455, 459-460 (Watson).) Accordingly, not all of the procedural safeguards required in a criminal proceeding are applicable in a section 6500 case. (Conservatorship of Mary K. (1991) 234 Cal.App.3d 265, 270-271 (Mary K.).) For example, the potential committee may not refuse to testify, although the Fifth Amendment privilege against self-incrimination applies, as it does in all civil proceedings. (Conservatorship of Bones (1987) 189 Cal.App.3d 1010, 1015.) Nonetheless, the potential loss of liberty entitles the potential committee to substantial procedural protections, such as the right to appointed counsel (§ 6500) and the right to a jury trial and unanimous verdict (Conservatorship of Roulet (1979) 23 Cal.3d 219, 235).)
The main issue in this case is one of those procedural protections guaranteed to a criminal defendant--the right to be present at the hearing that could result in a loss of liberty. (Cal. Const., art. I, § 15.) Wilkinson was represented by counsel (hereafter appointed counsel) at trial, but Wilkinson did not appear at the initial hearing. The trial court asked appointed counsel about Wilkinson's absence and appointed counsel stated that she would waive Wilkinson's presence.
Wilkinson's grandmother, who was Wilkinson's legal guardian until Wilkinson's 18th birthday, also appeared. She was accompanied by an attorney (hereafter grandmother's counsel) who had acted as an advocate on behalf of Wilkinson while Wilkinson was a minor. The trial court permitted grandmother's counsel to appear in the action as an advocate for Wilkinson based on grandmother's perceptions of Wilkinson's needs. Grandmother's counsel stated she had spoken to Wilkinson and Wilkinson wanted to be present for the hearing. Grandmother's counsel also stated that appointed counsel had not spoken to Wilkinson. Appointed counsel did not voice ...