California Court of Appeals, Second District, First Division
Order Filed 1/17/14
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.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
It is ordered that the opinion filed herein on December 19, 2013, be modified as follows:
1. On page 8, second full paragraph, line 5, delete the word “either”.
2. On page 21, footnote 16, line 2, substitute the word “adequate” for the word “inadequate.”
3. On page 21, footnote 16, lines 4-5, delete the words:
“, and does not provide this court with the probate conservatorship order.”
The first sentence of the footnote should then read:
We decline to consider further whether the public guardian abused its discretion by determining that Kennebrew’s probate conservatorship was an inadequate alternative to a Murphy conservatorship, as the public guardian advised, because the petition does not contend that the trial court’s order lacks supporting evidence on that ground.
There is no change in judgment.
Petitioner’s petition for rehearing is denied.
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”), ...