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Conservatorship of John D.

California Court of Appeal, Third District

March 4, 2014

CONSERVATORSHIP OF the Person of JOHN D.
v.
John D., Objector and Appellant. James D. Livingston, as Acting Public Guardian, etc., Petitioner and Respondent,

[CERTIFIED FOR PARTIAL PUBLICATION[*]]

APPEAL from a judgment of the Superior Court of Shasta County, Cara Beatty, Judge. Affirmed in part and reversed in part. (Super. Ct. No. 10LPSQ0003486).

Page 411

COUNSEL

Paul Bernstein, under appointment by the Court of Appeal, for Objector and Appellant.

Rubin E. Cruse, Jr., County Counsel, Adam M. Pressman, Deputy County Counsel, for Petitioner and Respondent.

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OPINION

MURRAY, J.

John D. appeals from a judgment appointing a Lanterman-Petris-Short (LPS) Act conservator of his person. He also appeals the imposition of special disabilities in the letters of conservatorship, denying him the privilege of possessing a driver's license, the right to enter into contracts and the right to possess a firearm. He contends there is not substantial evidence supporting the finding that he cannot provide for his basic needs such as food, clothing and shelter, nor is there evidence supporting the imposition of the special disabilities on his right to enter into contracts, drive and possess firearms. John further contends the trial court erred in requiring him to pay jury fees.

In the published portion of this opinion, we conclude that the trial court erred in ordering John to pay jury fees because there is no statutory authority for such fees.

In the unpublished portion of this opinion, we conclude that the finding of grave disability and the imposition of special disabilities is supported by substantial evidence.

We reverse the jury fee order. In all other respects, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Trial Evidence

John has a longstanding history of mental illness. He was conserved for three years in 2005 in Los Angeles County. John was again placed under conservatorship in 2009, this time in Shasta County. In 2009, John had five psychiatric hospitalizations, each the result of John not taking his medication after being discharged.

         Dr. John Mahoney, a Shasta County Mental Health clinical psychologist, examined and evaluated John on a number of occasions and diagnosed him with schizophrenia, paranoid subtype. As a result of his mental illness, John experiences disorganized thoughts and behaviors, hallucinations, and delusions, including delusions that he is employed as an agent for various law enforcement agencies. In the course of each hospitalization, while medicated, John would stabilize in the hospital and be released. Each time, after he was

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discharged, he stopped taking his medication and within two to three weeks would be suffering from acute psychotic symptoms.

In August 2010, Dr. Mahoney recommended taking John off the conservatorship, because he appeared to be doing very well. Although he still had delusions, it did not seem to Dr. Mahoney that the delusions would interfere with John's ability to live independently. Furthermore, John had changed a living plan from an unrealistic plan of going to Mexico to drive a truck to a more realistic plan to remain in town at a local hotel, the Lorenz,[1] and let the STAR team [2] assist him with his needs.

Around August 2010, Manuel Ramirez, a deputy public guardian for Shasta County, began working with John to transition off conservatorship to independent living. John's conservatorship was going to terminate at the end of October 2010. John was consistently taking his medication, following facility rules [3] and attending drug and alcohol abuse meetings. Although he continued to talk about being involved in law enforcement, at the time the delusions appeared harmless as he was otherwise following all the facility rules. Ramirez testified that in hindsight, the delusions were sufficient to maintain John on the conservatorship. In October 2010, after John was moved into the Lorenz Hotel, Ramirez began to receive complaints that John was breaking the facility rules. He was allowing people in his room at 2:00 or 3:00 a.m. and smoking in his room. Ultimately, John went off conservatorship on November 1, 2010.

Willie Smith, operations manager of the Christian Church Homes, which runs the Lorenz Hotel, testified that she had moved John into the Lorenz on October 1, 2010. At the intake interview, John said he was a CIA agent. He would then say he was an undercover drug enforcement agent. As time went on, John became more difficult and less willing to cooperate with the STAR team. On November 24, 2010, Smith ordered John to move out of the Lorenz Hotel because of his violent behavior directed against the security guards. Specifically, the security guards reported that on October 30 or 31, they had to call the police as John was violent, drinking and threatening them and residents.[4] Thereafter, Smith sent John a letter on November 1 notifying John he would be evicted as a result of his behavior and the danger to other tenants

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and staff. About a week after writing the letter, Smith saw John and reminded him he would have to move. John got very angry, told her to " F [herself] and called [her] a f'ing bitch and inappropriate language." He later raised his cane at her and told her to get out of his face. Shortly after John moved, he returned to the Lorenz Hotel to get his security deposit. When White told him he would receive it in a timely fashion, John threatened her again, this time telling her that he would get the CIA after her and said, " I will get you for this." Smith was afraid John would assault her. She viewed him as the most frightening tenant she had had in 16 years.

In December 2010, John was committed pursuant to Welfare and Institutions Code section 5150.[5] John had been very agitated and irate and had made several threats toward the STAR team personnel and Dr. Mahoney. He threatened to cut off the heads of all of the STAR team members and slit the throat of his primary service coordinator if they did not give him his money. When asked whether he had any food, John said he did not. When asked where he could obtain food, John would not answer and disengaged the STAR worker.

Dr. Mahoney again diagnosed John with schizophrenia, paranoid subtype. He noted that although John had had auditory hallucinations in the past, at the present time his symptoms had not progressed that far. However, he continued to suffer from delusions. At their worst in 2009, John said he was the Angel Gabriel and he also said he was eight and one-half months pregnant. More recently, he claimed to simultaneously be a DEA agent, an FBI agent, and an undercover police officer. He said he had an unlimited account at the Déjà Vu Restaurant, which he first said had been set up for him by the Redding Police Department and then said the Chinese Secret Service had set up the account.[6]

         Dr. Mahoney administered what he called " the medication tray test," in which the patient is presented with four bottles of simulated medications with a set of directions on each bottle and asked to load two days of medication on the tray. John told Dr. Mahoney that he had helped invent the test. He also said he was a psychiatrist who had attended Harvard and Stanford. John performed the test without error. However, on the " complex figure test," which requires the use of a number of cognitive functions and measures the ability to plan and organize, John scored between the 6th and 10th

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percentile, suggesting that at least 90 percent of the general population would do better. Dr. Mahoney testified that people who tested in that range are normally able to perform the routine activities of daily living without too much trouble. However, when faced with something particularly complex or something they have not encountered before, they need assistance.

Dr. Mahoney opined that John does not believe he has a mental disorder. This lack of insight leads John to believe he does not need treatment or medication. However, John requires medication to keep his symptoms controlled. Without the medication, his psychotic symptoms reemerge. His five hospitalizations were a direct result of his failure to take his medications. Dr. Mahoney also noted that John's bank closed his account after he went there and loudly insisted he was an FBI agent. In addition, John's payee sought to discharge him because of his behavior. Thus, Dr. Mahoney concluded John's " delusionally-driven behavior [is] negatively affecting his ability to manage his money and have housing." The delusions have " caused [John] to behave in ways that hinder his ability to manage his money and get housing or maintain housing, maintain appropriate housing."

During Dr. Mahoney's examination, John was largely calm and cooperative, spoke normally and coherently and was linear in his thinking. He was able to concentrate on the questions being asked. He could provide the names of his medications and adequately follow directions on the bottles. He was able to describe how to go to a grocery store, give a reasonable list of foods to purchase, describe his clothing needs and identify places to purchase clothing. However, he had a " completely unrealistic" plan as to housing. John said he would go to Corning to live with his wife, a person the doctor did not believe existed, and take a job as an undercover officer for SINTF and the DEA.

John entered the representative payee program around November 2, 2010. Elodia Stalcup, of Golden Umbrella, a nonprofit organization that helps seniors, is the representative payee for John's Veteran's Adminstration (VA) payments. Golden Umbrella received $14,775 from the VA for John. Because his bank account was set up as a conserved account, John could not withdraw money from the bank himself. For the first two weeks Golden Umbrella acted as the representative payee, Stalcup was paying John's expenses without a budget. Because John constantly called her for more money, she called the VA for a budget. The VA budgeted $316 for John's rent at the Lorenz, $400 for his food and $200 for a personal allowance. John ran out of money too quickly, so to ensure he had a roof over his head, Stalcup paid his rent directly and set up an account at the Déjà Vu Restaurant to ensure John had

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food to eat. John became upset with the amount of money he was receiving and called Stalcup about that multiple times. On one occasion, John told her " I'm with the FBI and I know that you have $15,000.00 of mine and I need for you to f'ing give it to me." Stalcup also got phone calls from two branches of the bank where John had his account. John was going into the banks and demanding more money. Stalcup received a letter from the bank saying they would no longer serve John. Thereafter, her executive director told her to disenroll John from the program, but at the time of the trial, Golden Umbrella remained the payee.

John testified. He acknowledged that he was conserved in 2005 in Los Angeles. He was again conserved in Shasta County and released. John believed that conservatorship was unnecessary. All he needed was money. He said he was unable to provide food, clothing and shelter for himself because he was not getting his " Vietnam vet" check from the government. He indicated that as of the day of his testimony, he had at least $15,000 in the bank.

John described an extensive employment history in law enforcement, beginning with the Santa Cruz County Sheriff's Department working in the jail and with a countywide narcotics enforcement team. He said when he was in Los Angeles, he worked with the LAPD. He testified that during a " sting" operation involving other agencies, he was injured. " I got shot in the foot and the leg and an ambulance ran into my leg and broke my leg, and I was in the hospital for three years down there, so the— so the— the Department of Justice assigned me to the sheriff's department down there."

John acknowledged that he suffers from delusions, saying his imagination has " victimized [him] several times." He said that when he is delusional he claims to work in agencies such as the FBI. He indicated that in December 2010, he had an " episode" at the behavioral center which he blamed on the medication he had been administered. He sometimes gets delusional when he drinks coffee. He said he suffers from paranoid schizophrenia. He said Dr. Mahoney had diagnosed him as having schizoaffective disorder with bipolar tendencies, but then changed his diagnosis. He admitted telling a security guard at the Lorenz that he was an FBI agent pursuing an investigation in the county mental health system. He denied ever threatening anyone, but said he might have shouted obscenities at others at the hotel when he was in so much pain from previous injuries that he did not want to be bothered. He denied threatening Smith or Stalcup or yelling obscenities at Smith, although he did not recall whether he had sworn at Stalcup.

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When asked whether he was working during the period when he was staying at the Lorenz Hotel, John asked the trial court whether he was under oath. After the court said he was, John testified he had worked part time for the Redding Police Department doing reconnaissance, finding " haunts" where people are using drugs and reporting on that. When he found a house, he would " get the people's information, their ... names, what kind of drugs, where they come from." Although the work was voluntary, he said he held the rank of captain. He was working under the cover of a schizophrenic wino.

John acknowledged that he authored a " DEA field report," which was admitted into evidence, in which he asked for assistance locating money to start buying drugs, including methamphetamine and heroin, as part of his undercover operation. He testified that the $15,000 he had in the bank was " filtered through the Department of Veteran's Administration" as " front money" for his undercover operation. He said that it was Stalcup's job to filter DEA money to him, but that she was " not compliant," and that she had been indicted along with hundreds of others in the county based on his investigation. He also testified he was working undercover as a " crooked agent" who had shot his partner in Los Angeles and who had served time in prison for the shooting. When asked about a notation on his DEA field report which read, " I'm still working my ass off with the mental health system," John testified " I suppose I should blow the cover right now. I'm the head agent involved in investigating the County Mental Health System of Shasta County. I work for the FBI, United States Federal Bureau of Investigation. I'm the head agent. I have agents right in this courtroom with me." He maintained it was part of his cover to be on a conservatorship and convince the mental health system he was a schizophrenic. He claimed to have been investigating mental health systems since 1963, both in and out of the military. When asked how his investigation was going at the time of his report, he replied, " It was going good. They were convinced I was a schizophrenic." He said it was part of his cover to be conserved.

Although he initially acknowledged during examination by county counsel that he suffers from schizophrenia, later in his examination by his attorney, John denied that he was schizophrenic. He said, " I don't have schizophrenia, ... let's see. I don't know. I may have it. I don't know. I rather doubt it.... [I]f I am a schizophrenia [ sic ], I'm not a typical schizophrenic. I'm a very educated, well-read gentlemanly sort of schizophrenic." When his counsel asked whether he agreed there had been times when he was delusional, John said, " it depends on the ... word delusional. A child is delusional when he or she picks up a teddy bear and imagines that that's his

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or her baby or a friend. So ... I can't really say that it's unnatural for me to be delusional, because I've never been clinically delusional."

John does not feel he needs drugs to treat his schizophrenia. He testified the Haldol and Congentin are placebos, " according to [his] last contact with central command and Sacramento FBI." He said there " was a glitch in the system, and [he did not] think [he was] getting placebos now." He believes he gets along fine without his medication.

John denied being drunk while he was at the Lorenz, although the eviction letter indicated he had been arrested for being drunk in public. He testified that after leaving the Lorenz, he moved to the Redding Inn and stayed there until he got into an argument with the STAR team and they " 5150'd" him.

A jury found John gravely disabled due to schizophrenia, paranoid subtype. Thereafter, the court took additional evidence on the issues of placement, special disabilities and payment of fees.

Placement and Imposition of Special Disabilities

As to placement, Dr. Mahoney indicated a locked facility often serves as a transition from the hospital, providing a structured environment with supervised medication. Dr. Mahoney also acknowledged he had previously been too optimistic in expecting John could be released into the community without more structure or assistance. The court ordered that John be placed in a locked facility.

The court received a February 3, 2011 report from Dr. Mahoney, which it considered when imposing special disabilities. In the report, Dr. Mahoney opined that John was capable of making his own decisions regarding routine medical care, but not regarding the treatment of his mental illness. Dr. Mahoney also opined that John could present a danger to the community if he were allowed to possess a firearm or operate a motor vehicle, and the court issued orders prohibiting John from doing so.

Order to Pay Jury Fees

Over the public defender's statutory, due process and equal protection objections, the court also ordered John to pay $455.56 in jury fees. The court noted John received $972 per month in maintenance, and $1,320 per month in veteran's benefits and social security. He also reported he had approximately $16,000 in the bank. The court agreed with the county's reasoning that as an LPS case this is a civil matter and the Welfare and Institutions Code and Probate Code indicated that the procedures in the Code of Civil

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Procedure apply; specifically, that the person demanding a jury trial pay for the jury fees. The court indicated that because John had the ability to pay, its ruling was a compromise [7] for not requiring John to pay public defender fees. [8]

DISCUSSION

I.-II.[**]

III. Jury Fees

John contends that the trial court erred in requiring him to pay jury fees. The county contends, " There is no reason that [John] should burden the taxpayers with jury fees for a trial which he demanded. This is especially the case when, as here, [John] has the funds to pay for the services he has requested." John, according to the county, " should ... be required to pay the same fees as any civil litigant who requests a jury trial." On this point, we disagree with the county.

The county's argument is based on its reading of Welfare and Institutions Code section 5350, Probate Code section 1827, and Code of Civil Procedure section 631. Citing what the county calls the " pertinent part" of Welfare and Institutions Code section 5350, it notes that section 5350 reads in part, " The procedure for establishing, administering and terminating a conservatorship under this chapter shall be the same as that provided in Division 4 (commencing with Section 1400) of the Probate Code...." Division 4 of the Probate Code is the Guardianship-Conservatorship Law and governs the appointment of conservators of the person for " ‘ adults who for any reason are incapable of taking care of themselves.’ [Citation.]" ( Conservatorship of John L. (2010) 48 Cal.4th 131, 144, 105 Cal.Rptr.3d 424, 225 P.3d 554 ( John L. ).) Probate Code section 1827 states, " The court shall hear and determine the matter of the establishment of the conservatorship according to the law and procedure relating to the trial of civil actions, including trial by jury if demanded by the proposed conservatee." Code of Civil Procedure former section 631 required that a

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party demanding a jury trial deposit jury fees in advance of trial and provided that the failure to do so resulted in a waiver trial by jury.[9]

There are exceptions to the general rule in Welfare and Institutions Code section 5350 that the procedures to be used in LPS proceedings shall be the same as for establishing, administering, and terminating probate conservatorships and the concomitant application of the Code of Civil Procedure. The exception in section 5350, subdivision (d) relates specifically to LPS Act jury trials. The pertinent part of section 5350 reads more fully, " The procedure for establishing, administering, and terminating a conservatorship under this chapter shall be the same as that provided in Division 4 (commencing with Section 1400) of the Probate Code, except as follows: [¶] ... [¶] (d) The person for whom conservatorship is sought shall have the right to demand a court or jury trial on the issue whether he or she is gravely disabled. Demand for court or jury trial shall be made within five days following the hearing on the conservatorship petition.... [¶] Court or jury trial shall commence within 10 days of the date of the demand, except that the court shall continue the trial date for a period not to exceed 15 days upon the request of counsel for the proposed conservatee." (Italics added.) In our view, by this exception in the LPS Act, the Legislature has provided a self-contained procedure for demanding a jury trial in LPS conservatorship cases and thus, expressly excluded such cases from the provisions of Code of Civil Procedure section 631. And the express exception in subdivision (d) of section 5350 makes no mention of any provision for the payment of jury fees; nor does it make a proposed conservatee's right to a jury contingent upon the payment or deposit of such fees.

That Code of Civil Procedure former section 631 has no application to the procedure for demanding LPS conservatorship jury trials is evident when one looks at the deadline by which a party was required to post the $150 advance fee.[10] Subdivision (b) of Code of Civil Procedure former section 631 expressly required that the advance fee be deposited " at least 25 calendar

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days before the date initially set for trial." (See fn. 9, ante. ) LPS conservatorships follow an entirely different timeline than general civil matters, and the requirement that the LPS jury trial commence within 10 days of the demand for jury trial is inconsistent with the 25-calendar-day deadline for posting the advance jury fee in Code of Civil Procedure former section 631, subdivision (b). Moreover, unlike unlawful detainer actions, which also have shorter timelines than general civil matters, no exception can be found for LPS conservatorship petitions in Code of Civil procedure former section 631. [11] Had the Legislature intended to require prospective LPS conservatees to post jury fees, it would have been a simple matter for the Legislature to include an exception to the general deadline rule consistent with deadlines in LPS matters, but it did not and this omission is telling. We conclude that the Legislature did not intend the Code of Civil Procedure section 631 requirements for posting jury fees to apply to persons who are the subject of an LPS petition for conservatorship.

We find no other statutory basis for requiring an LPS conservatee to pay jury fees before, during or after his or her trial has been completed. As with

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other distinctions between an LPS conservatorship and a probate conservatorship, we believe there is good reason for this distinction. While LPS conservatorship proceedings may be initiated only by an agency-designated conservatorship investigator (Welf. & Inst.Code, § 5352), private parties, such as the proposed conservatee himself or herself, his or her spouse or domestic partner, a relative, friend or other interested person have standing to file a petition for a probate conservatorship (Prob.Code, § 1820, subd. (a); John L., supra, 48 Cal.4th at p. 144, 105 Cal.Rptr.3d 424, 225 P.3d 554). Government need not be involved in a probate conservatorship. And " [u]nlike an LPS conservatorship, a probate conservatorship does not depend on a showing of grave disability resulting from a mental disorder, and involuntary commitment is not contemplated." ( John L., supra, 48 Cal.4th at p. 144, 105 Cal.Rptr.3d 424, 225 P.3d 554.) Indeed, while an LPS conservatorship is civil in nature, the prospect of the loss of liberty and the lasting stigma on the conservatee's reputation requires some of the same " powerful safeguards" that are provided to criminal defendants. ( Conservatorship of Ben. C. (2007) 40 Cal.4th 529, 541, 53 Cal.Rptr.3d 856, 150 P.3d 738 ( Ben C. ).) A proposed conservatee has a right to a jury trial; the party seeking imposition of an LPS conservatorship must prove the proposed conservatee's grave disability beyond a reasonable doubt; and the jury's verdict must be unanimous. ( Ibid. ; Roulet, supra, 23 Cal.3d at pp. 229-230, 152 Cal.Rptr. 425, 590 P.2d 1.)

Moreover, the LPS Act promotes more than private interests. In addition to guarding the rights of proposed conservatees and those who are involuntarily committed and advancing the goal of providing appropriate treatment to such persons, " substantial" public interests are promoted by the LPS Act, including " ‘ " ending the inappropriate and indefinite commitment of the mentally ill" ’ " and " ‘ " guaranteeing and protecting public safety." ’ " ( John L., supra, 48 Cal.4th at p. 150, 105 Cal.Rptr.3d 424, 225 P.3d 554; Ben C., supra, 40 Cal.4th at p. 540, 53 Cal.Rptr.3d 856, 150 P.3d 738; see also § 5350, subd. (b)(2) [in appointing an LPS conservator, the court must consider protection of public as well as treatment of conservatee].) Thus, contrary to the assertion of the county that there is no reason for taxpayers to pay for jurors in LPS Act conservatorship trials, it is reasonable to require the public to fund such proceedings when public interests are advanced.

In summary, because of the loss of liberty, stigmatization and the public interests promoted by the statutory scheme, including public safety, and the fact that the procedure for demanding LPS jury trials is one of the exceptions to the application of the Probate Code and the Code of Civil Procedure, we do not think the Legislature intended the entitlement to a jury trial in LPS matters be conditioned on the payment of jury fees.

Accordingly, the order imposing jury fees is reversed.

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DISPOSITION

The order requiring John to pay jury fees is reversed. In all other respects, the judgment is affirmed.

We concur: RAYE, P.J., NICHOLSON, J.


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