Conservatorship of Buchanan

• Citation: 144 Cal.Rptr. 241,78 Cal.App.3d 281
• Court: California Court of Appeals Court of Appeals
• Decision Date: 07 March 1978
• Parties: Conservatorship of the Person and ESTATE of Arthur J. BUCHANAN. William H. MEYER, Public Guardian, Petitioner and Respondent, v. Arthur J. BUCHANAN, Objector and Appellant. Civ. 41256.

Page 241

144 Cal.Rptr. 241

78 Cal.App.3d 281

Conservatorship of the Person and ESTATE of Arthur J. BUCHANAN.

William H. MEYER, Public Guardian, Petitioner and Respondent, v. Arthur J. BUCHANAN, Objector and Appellant.

Civ. 41256.

Court of Appeal, First District, Division 2, California.

March 7, 1978.

Hearing Denied May 4, 1978.

Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, Michael G. Millman, Deputy State Public Defender, San Francisco, for objector and appellant.

Selby Brown, Jr., County Counsel, Josephine T. Druehl, Deputy County Counsel, San Jose, for petitioner and respondent.

TAYLOR, Presiding Justice.

Conservatee, Arthur Buchanan, appeals from an order entered on a jury verdict finding him "gravely disabled," as defined in Welfare and Institutions Code section 5008, subdivision (h), ¹ and the appointment of the public guardian as his conservator, pursuant to section 5350, ² with powers of hospitalization, pursuant to section 5358. ³ He contends that: 1) medical records were improperly admitted into evidence and the court failed to instruct the jury as to their limited use; 2) the trial court also improperly instructed the jury on the "gravely disabled" standard; and 3) his involuntary commitment when alternative means of care were available violated his constitutional rights, as well as the legislative intent of the Lanterman-Petris-Short Act (§ 5000, et seq.) (hereafter LPS).

At the oral argument, the record was augmented by stipulation of the parties, with a certified copy of an order indicating that during the pendency of this appeal, the conservatorship was terminated. We are, therefore, faced with a preliminary question of mootness. The instant case poses issues of public interest that are capable of repetition, yet avoiding review (Ferrara v. Belanger, 18 Cal.3d 253, 259, 133 Cal.Rptr. 849, 555 P.2d 1089). The statute involved is new; there is a paucity of authority and interpretation. In addition, collateral consequences remain even after the conservatorship has been terminated (People v. Feagley, 14 Cal.3d 338, 345, 121 Cal.Rptr. 509, 535 P.2d 373). Accordingly, we conclude that the instant case is not moot and should be decided on its merits. ⁴

Viewing the facts, as we must, in support of the order, the following appears: Mr. Buchanan, a 31-year-old black male, had a lengthy history of mental illness. During the six years preceding the instant petitions filed in 1976, the conservatee had been hospitalized on four occasions for periods of time ranging from two to six months. These proceedings were initiated in April 1976 after a police officer took Mr. Buchanan into custody after observing him on his knees in a gasoline station praying for gas on the night of April 5, 1976. Buchanan was admitted to Santa Clara Valley Medical Center (VMC), temporarily detained, and examined by several doctors. A report prepared by Drs. Arons and Woodrow recommended a conservatorship. On April 14, 1976, the public guardian was appointed temporary conservator; thereafter, the conservatorship was made permanent and one of Buchanan's sisters, Mrs. Soberanis, appointed as conservator. After her withdrawal, the public guardian was reappointed.

In January 1977, Buchanan petitioned for a rehearing, pursuant to section 5364 and demanded a jury trial on the issue of his grave disability, pursuant to section 5350, subdivision (d). At the trial, Dr. Michael Kerschenbaum, a psychiatrist, on the basis of his own examination and the medical records, opined that Buchanan was suffering from schizophrenia, evidenced by, inter alia, loose thought organization, distractibility and erratic behavior. In the opinion of this expert, Buchanan was unable to provide for his own food, shelter and clothing as a result of his illness. Dr. Kerschenbaum's diagnosis was in accord with the conservatorship report prepared for the court pursuant to section 5358. Buchanan presented no expert testimony and relied on his own testimony and that of his two sisters. Each indicated that he was not mentally ill, capable of providing his basic needs, and heard voices consistent with the family's religious upbringing and beliefs in demons, fasting and prayer.

Buchanan first contends that the VMC medical records were improperly admitted and considered by the jury. His contention is threefold: 1) no proper foundation was laid to qualify the records for admission; 2) certain portions of the records were comprised of inadmissible hearsay, as these diagnoses were not "records of an act, condition, or event," as specified by Evidence Code section 1271, set forth below; ⁵ and 3) the trial court erred in refusing his proffered instruction on the limited purpose for which the records could be considered.

Buchanan's argument as to the foundation for the medical records cannot be considered as the record reveals that no proper objection on this ground was made below. Had such an objection been made, Dr. Kerschenbaum could have readily testified as to the manner of keeping hospital records and his acquaintance with the records here (cf. People v. Terrell, 138 Cal.App.2d 35, 291 P.2d 155; People v. Dorsey, 43 Cal.App.3d 953, 118 Cal.Rptr. 362). In Dorsey, supra, the court indicated, at page 961, 118 Cal.Rptr. 362, that foundational requirements may be inferred from the circumstances in such a situation.

Buchanan's argument as to the inadmissibility of the diagnoses of other physicians in the medical records is based on Evidence Code section 1271, as interpreted by our Supreme Court in People v. Reyes, 12 Cal.3d 486, 116 Cal.Rptr. 217, 526 P.2d 225. Reyes stated at page 503, 116 Cal.Rptr. at page 227, 526 P.2d at page 235: " ' "It is true that some diagnoses are a statement of a fact or condition, for example, a diagnosis that a man has suffered a compound fracture of the femur is a record of what the person making the diagnosis has seen but this is not true where the diagnosis is but the reasoning of the person making it arrived at from the consideration of many different factors. " ' (Citations.) A psychiatric diagnosis is especially susceptible to . . . (this reasoning) because it is based upon the thought process of the psychiatrist expressing the conclusion." An inspection of the instant medical records reveals several different diagnoses of Buchanan as a schizophrenic emanating from various sources, chiefly the staff members of VMC.

The public conservator properly relies on Springer v. Reimers, 4 Cal.App.3d 325, 338, 84 Cal.Rptr. 486, and Kelley v. Bailey, 189 Cal.App.2d 728, 738, 11 Cal.Rptr. 448, in arguing that a portion of these records was correctly admitted as a basis for Dr. Kerschenbaum's expert opinion and not as independent proof of Buchanan's illness. We agree that the portion of the records consisting of observations of Buchanan by the VMC staff was clearly admissible. Admissibility does not extend to the independent diagnoses of the out-of-court VMC psychiatrists in light of Whitfield v. Roth, 10 Cal.3d 874, 112 Cal.Rptr. 540, 519 P.2d 588. However, the record indicates that Dr. Kerschenbaum did not rely on any diagnosis other than his own.

When records are admitted under the Springer rationale (supra, 4 Cal.App.3d 325, 84 Cal.Rptr. 486), a limiting instruction need not be given, sua sponte, but must be given upon request of counsel (Kelley v. Bailey, supra, 189 Cal.App.2d at p. 738, 11 Cal.Rptr. 448; Evid.Code, § 355 (see also People v. Simms, 10 Cal.App.3d 299, 89 Cal.Rptr. 1; Witkin, Cal.Evid. (2d ed.) § 316)). Here, such an instruction was requested twice and refused. Also, in the instant case, the hearsay diagnoses of other psychiatrists could have been severed from the part of the medical record relating to the day-to-day observations of Buchanan. We conclude that the submission of the entire medical record to the jury, compounded by the refusal to give a limiting instruction, constituted an abuse of discretion and was error (Exclusive Florists, Inc. v. Kahn, 17 Cal.App.3d 711, 95 Cal.Rptr. 325).

We are faced with the question of the appropriate standard of appellate review for an LPS civil commitment proceeding. The issue is recognized by each party in their briefs but not fully discussed. Predictably, the public administrator assumes that People v. Watson, 46 Cal.2d 818, 299 P.2d 243, and state Constitution article VI, section 13, are appropriate, while Buchanan assumes that the more stringent rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, should be applied. Although our research has disclosed no prior decision on the question here presented, we find a helpful analogy in cases such as In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. As there indicated, the imposition of a stricter standard is preferable where, as here, the deprivation of individual liberty is involved. We conclude that the properly applicable standard is that of Chapman, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, rather than People v. Watson, supra, 46 Cal.2d 818, 299 P.2d 243.

Applying the standard here, we note that the erroneously admitted hearsay was merely cumulative of the diagnosis of the expert. Buchanan also had the opportunity to cross-examine the expert at trial. ⁶ Accordingly, we conclude that the admission of the hearsay portion of the medical records was harmless beyond a reasonable doubt (Chapman v. California, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; cf. People v. Leach, 15 Cal.3d 419, 446-447, 124 Cal.Rptr. 752, 541 P.2d 296).

Buchanan next contends that the trial court improperly refused his proffered instruction that one is not gravely disabled if capable of surviving with the help of willing relatives, friends or other third parties. ⁷ We believe that the trial court properly instructed the jury as to this matter in light of the language of section 5008, subdivision (h)(1), as interpreted by this court in Conservatorship of...