Conservatorship of the Pers. v. J.Y.

• Decision Date: 21 May 2020
• Docket Number: A157323
• Parties: CONSERVATORSHIP OF the Person and Estate of J.Y. Public Guardian of Contra Costa County, Petitioner and Respondent, v. J.Y., Objector and Appellant.
• Court: California Court of Appeals Court of Appeals

49 Cal.App.5th 220

262 Cal.Rptr.3d 712

CONSERVATORSHIP OF the Person and Estate of J.Y.

Public Guardian of Contra Costa County, Petitioner and Respondent,

v.J.Y., Objector and Appellant.

A157323

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

Filed May 21, 2020

By appointment of the Court of Appeal Under the First District Appellate Project, Jeremy T. Price, for Appellant.

Office of the County Counsel Sharon L. Anderson, County Counsel, Nina F. Dong, Deputy County Counsel, for Respondent.

Kline, P.J. Appellant J.Y. appeals from the trial court's order reappointing respondent Contra Costa County Public Guardian conservator of her person pursuant to the Lanterman-Petris-Short Act (LPS) Act ( Welf. & Inst. Code, § 5000 et seq. ).¹ On appeal, appellant contends that compelling her to testify as a witness against herself at the trial for reappointment of respondent as her conservator violated her state and federal equal protection rights, given that the right to refuse to testify has been statutorily granted to persons found not guilty by reason of insanity (NGI) in proceedings to extend their civil commitment. We agree with appellant that LPS conservatees are similarly situated to NGI's, as well as individuals subject to other involuntary civil commitments, for purposes of the right against compelled testimony, considering the serious liberty interests at stake in all such involuntary civil commitments. We also find that respondent has not yet offered a compelling reason why LPS conservatees’ procedural protections should not include the right against compelled testimony. However, because appellant's one-year conservatorship has terminated, we will dismiss the appeal as moot.

BACKGROUND

Respondent was first appointed temporary conservator of appellant's person on February 6, 2004. Thereafter, an order appointing respondent as conservator of appellant's person was entered on January 13, 2005, and an order continuing her conservatorship was entered on March 21, 2005.

Orders reappointing respondent conservator of appellant's person were entered 12 times between January 2006 and December 2017.

In the present matter, respondent filed a petition for reappointment as conservator of appellant's person on November 13, 2018. Appellant objected to the reappointment and requested a jury trial. Appellant further objected to respondent calling her as a witness at trial, arguing that such compelled testimony would violate her due process and equal protection rights. The court overruled the objection, finding that Conservatorship of Baber (1984) 153 Cal.App.3d 542, 200 Cal.Rptr. 262, "clearly indicates that, number one, these are civil proceedings not criminal. There is not a Fifth Amendment right as in criminal proceedings. That's part of what the trier of fact has to observe, that is, the physical and also mental presentation that the proposed conservatee, respondent, exhibits [sic ]. So that is something that has to be considered by the trier of fact." The court further stated, however, "that does not prevent the assertion of a Fifth Amendment right if a question calls for something that could incriminate [appellant] in a criminal proceeding."

A jury trial was held in April 2019, at which appellant testified in respondent's case in chief. Two other witnesses also testified for respondent. Psychiatrist Michael Levin, who had interviewed appellant twice, testified as an expert in the areas of psychiatry and grave disability. Dr. Levin opined that appellant suffered from schizophrenia

and was gravely disabled. Andrew Smith, a licensed psychologist and deputy conservator who had worked with appellant since February 2018, testified as an expert in the area of grave disability. Dr. Smith also opined that appellant was gravely disabled.

At the conclusion of trial, the jury found that appellant was gravely disabled due to a mental disorder, and the court entered an order reappointing respondent as conservator of appellant's person. The court then imposed special disabilities depriving appellant of the rights to (1) refuse treatment related to her grave disability or general health, (2) enter into contracts, and (3) possess or own firearms. The court also designated appellant's current placement in a skilled nursing facility, where she had lived for 10 years, as the least restrictive alternative placement.

On May 13, 2019, appellant filed a notice of appeal.

DISCUSSION

Appellant contends that compelling her to testify as a witness against herself at the trial for reappointment of respondent as her conservator violated her state and federal equal protection rights, given that the right to refuse to testify has been statutorily granted to NGI's in proceedings to extend their civil commitment.

I. Mootness

As a preliminary matter, appellant observes that because her one-year conservatorship terminated on December 15, 2019, while this appeal was pending, her appeal is now technically moot. At our request, the parties have submitted recent documents from the trial court record that were not in the record on appeal, showing that on December 19, 2019, respondent filed a petition for reappointment as conservator; on January 28, 2020, the parties stipulated to a continuance until February 18, 2020; and that on February 18, 2020, the trial court continued the matter for one month, until March 17, 2020, stating that "the proposed conservatee is not accepting the reappointment and wants to wait on the outcome of the appeal on the disposition of the prior petition."²

Appellant asks that we exercise our discretion to address the equal protection issue she raises, based on the continuing public importance of the issue, its likely continuing impact on her, as well as the inherent difficulty of resolving such an appeal before the expiration of a one-year conservatorship. For the reasons stated by appellant, we will exercise our discretion to address the issue on the merits. (See People v. Alsafar (2017) 8 Cal.App.5th 880, 883, 214 Cal.Rptr.3d 186 ( Alsafar ) [finding equal protection issue moot, but addressing it on merits because it "is a legal issue of continuing public importance ... and is a question capable of repetition, yet evading review"]; People v. Dunley ( 2016) 247 Cal.App.4th 1438, 1445, 203 Cal.Rptr.3d 335 ( Dunley ) [same].)³ However, because a reversal would have no practical effect on the present appeal, we will dismiss it as moot. (See Alsafar , at p. 883, 214 Cal.Rptr.3d 186 ; Dunley , at p. 1445, 203 Cal.Rptr.3d 335.)

II. The LPS Act

The LPS Act affirms that "[p]ersons with mental illness have the same legal rights and responsibilities guaranteed all other persons by the Federal Constitution and laws and the Constitution of the State of California, unless specifically limited by federal or state law or regulations." (§ 5325.1.) Moreover, "[n]o person may be presumed to be incompetent because he or she has been evaluated or treated for mental disorder ..., regardless of whether such evaluation or treatment was voluntarily or involuntarily received." ( § 5331 ; see In re Qawi (2004) 32 Cal.4th 1, 17, 7 Cal.Rptr.3d 780, 81 P.3d 224 [" ‘one of the cardinal principles of LPS,’ [is] ‘that mental patients may not be presumed incompetent solely because of their hospitalization’ "; see also § 5000 ; Conservatorship of Early (1983) 35 Cal.3d 244, 253, 197 Cal.Rptr. 539, 673 P.2d 209 ].)

Under the LPS Act, a conservator may be appointed "for a person who is gravely disabled as a result of a mental health disorder .... ( § 5350.) "Gravely disabled" is defined as, inter alia, "[a] condition in which a person, as a result of a mental health disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter." ( § 5008, subd. (h)(1)(A).)⁴ Under section 5350, subdivision (e)(1), "a person is not ‘gravely disabled’ if that person can survive safely without involuntary detention with the help of responsible family, friends, or others who are both willing and able to help provide for the person's basic needs for food, clothing, or shelter."

III. Equal Protection

" ‘ "The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but "whether they are similarly situated for purposes of the law challenged." ’ [Citation.] In other words, we ask at the threshold whether two classes that are different in some respects are sufficiently similar with respect to the laws in question to require the government to justify its differential treatment of these classes under those laws." ( People v. McKee (2010) 47 Cal.4th 1172, 1202, 104 Cal.Rptr.3d 427, 223 P.3d 566 ( McKee ).)

"The second step is determining whether there is a sufficient justification for the unequal treatment. The level of justification needed is based on the right implicated. When the disparity implicates a suspect class or a fundamental right, strict scrutiny applies. [Citation.] When no suspect class or fundamental right is involved, the challenger must demonstrate that the law is not rationally related to any legitimate government purpose. [Citation.]" ( People v. Flint (2018) 22 Cal.App.5th 983, 990, 231 Cal.Rptr.3d 910, citing People v. Wilkinson (2004) 33 Cal.4th 821, 836, 16 Cal.Rptr.3d 420, 94 P.3d 551.)

Decisions by our Supreme Court and the United States Supreme Court "have used the equal protection clause to police civil commitment statutes to ensure that a particular group of civil committees is not unfairly or arbitrarily subjected to greater burdens. [Citations.]" ( McKee , supra , 47 Cal.4th at p. 1199, 104 Cal.Rptr.3d 427, 223 P.3d 566 [citing cases].)

A. Disparate Treatment

"Under both the United States and California Constitutions, a person has the right to refuse to answer potentially incriminating questions put...