California Court of Appeals, Second District, First Division
ORIGINAL PROCEEDINGS in mandate. Norman J. Shapiro, Judge Los Angeles County Super. Ct. No. BA352179
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.
Petitioner County of Los Angeles seeks review of the May 15, 2013 order of respondent Superior Court of Los Angeles, Honorable Norman J. Shapiro, ordering the public guardian to petition for a conservatorship and to act as conservator for real party in interest Nattie Kennebrew, Jr., under the Lanterman-Petris-Short Act, Welfare and Institutions Code sections 5000 et seq. We deny the writ, but issue this opinion to clarify the law with respect to the requirements for conservatorships under subdivision (h)(1) of Welfare and Institutions Code section 5008, and the authority of the superior court to review recommendations of administrative agencies concerning the imposition of such conservatorships.
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 (Pen. Code, § 187), and assault with a firearm (Pen. Code, § 245, subd. (a)(2)), in People v. Kennebrew, Los Angeles Superior Court Case No. BA352179. He was charged by information with one count of murder (Pen. Code, § 187), one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(2)), and one count of attempted murder (Pen. Code, §§ 664, 187), and was arraigned on July 1, 2009. On November 23, 2009, Kennebrew was found to be incompetent to stand trial and was committed to placement at Patton State Hospital (Patton) pursuant to Penal Code section 1368.
In a February 7, 2012 application for a mental health conservatorship and reexamination of Kennebrew in anticipation of his maximum commitment date,  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.”
On August 23, 2012, the trial court referred the matter to the Los Angeles County Office of the Public Guardian for investigation for a possible conservatorship. On August 24, 2012 the public guardian responded by letter that it would not seek a conservatorship for Kennebrew, because Kennebrew’s diagnosis of dementia is not a qualifying mental disorder diagnosis under the Lanterman-Petris-Short Act (LPS Act), Welfare and Institutions Code section 5000 et seq. Because the condition of a patient with Alzheimer’s type dementia is not likely to improve with treatment, the public guardian explained, county funds cannot be used for that purpose.
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. It appointed Kennebrew’s son as conservator, granted him permission to take Kennebrew to live with him in Michigan, anticipating that the California conservatorship would be terminated upon establishment of a Michigan conservatorship.
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 (§ 5008, subds. (h)(1)(A) & (h)(1)(B)); and that he has been diagnosed by Patton as presenting a substantial danger of physical harm to others by reason of his mental disorder. The court also found that no rational basis nor compelling interest outweighs the concerns for public safety and need for a conservatorship under the LPS Act, or justifies the public guardian’s refusal to act as conservator for Kennebrew. And it found that the conservatorship established for Kennebrew by the probate department does not address the court’s public safety concerns and does not preclude the criminal court from ordering 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 section 5008, subdivisions (h)(1)(A) and (h)(1)(B), as requested by Patton and the district attorney’s office.
The requested relief
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 ...