Conservatorship of v. Margaret, G026908.

• Citation: 107 Cal.Rptr.2d 542,89 Cal.App.4th 675
• Decision Date: 31 May 2001
• Docket Number: No. G026908.,G026908.
• Court: California Court of Appeals
• Parties: CONSERVATORSHIP OF the Person and Estate of MARGARET L. William A. Baker, Orange County Public Guardian, as Conservator, etc., Petitioner and Respondent, v. Margaret L., Objector and Appellant.

107 Cal.Rptr.2d 542

89 Cal.App.4th 675

CONSERVATORSHIP OF the Person and Estate of MARGARET L. William A. Baker, Orange County Public Guardian, as Conservator, etc., Petitioner and Respondent, v. Margaret L., Objector and Appellant.

No. G026908.

Court of Appeal, Fourth District, Division 3.

May 31, 2001.

Cheryl A. Geyerman, San Diego, and Peggy A. O'Neill, under appointment by the Court of Appeal, for Objector and Appellant.

Laurence M. Watson, County Counsel, Robert G. Overby and Laurie A. Shade, Deputy County Counsel, for Petitioner and Respondent.

OPINION

CROSBY, J.

When appointed counsel in a conservatorship appeal fails to discover an arguable issue, must the Court of Appeal independently review the record upon a request per People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071?¹ Yes.

I

A unanimous jury found Margaret L. gravely disabled, and the court extended her existing conservatorship.² We appointed an attorney to represent her on appeal, but counsel requested our independent Wende review after failing to identify an arguable appellate issue.

The evidence at trial came from forensic psychologist Stephen Wells and Margaret L. testifying on her own behalf in opposition to the continuation of her conservatorship. Wells, who has been Orange County's Chief of Mental Health Consultation for 19 years, personally examined Margaret L. on five occasions, beginning in 1993, but primarily in 1996 when her current conservatorship commenced. He also saw her about a week before trial at Beverly Manor, a locked-down long-term psychiatric rehabilitation facility. In addition, he reviewed her extensive medical records and consulted with her treating physician and others involved in her care, including a deputy public guardian.

Although Margaret L., age 46, is a college graduate in accounting, she has had approximately 20 psychiatric hospitalizations. In Wells's opinion she suffers from "schizoaffective disorder." He described the condition as "a combination of schizophrenic-type symptoms and symptoms like mania and depression." Her symptoms include paranoid delusions and auditory hallucinations.

The present conservatorship began when police found Margaret L. wandering in traffic in a delusional state. Wells described her condition after hospitalization at that time: "She told various professionals, including myself, that her father and brother had been involved in the Watergate scandal. She also had the delusional belief that she was Peggy Sue and was being raped because of that. She claimed that John Fitzgerald Kennedy was her attorney. She said she had been involved in the Manson trial. She claimed that her family had forced her to be a child prostitute for the Kennedys. And again, she made additional charges of being molested and raped in a facility. [¶] This is one of the saddest and most difficult of the paranoid delusions. Ms. L[.] repeatedly believes that she's being raped, that has continued through the years. In every facility that she's been at she's reported people coming into her room to [rape her] at night."

In more recent years, Margaret L. believed that she had cured herself of AIDS by smoking cigarettes and drinking her own urine, her deputy public guardian was having an affair with one of her former husbands, her former employer was the CIA and it wanted to obtain her medical records, President Clinton wanted to harm her, her adoption of a female Japanese child was being frustrated by someone, and she had been raped by 18 Mafia dons. She also (incorrectly) believed she had an identical twin—who was harassing her conservator—and that her friends had abandoned her because they thought she murdered children and was the Antichrist. In addition, she was receiving telepathic communications from her parents who had not been otherwise in touch with her for years. The Mafia, she thought, intended to kill her family. Wells opined that Margaret L. is gravely disabled and cannot provide for her own clothing, food, and shelter, and that she would not take her numerous medications if she were set free.

In her testimony Margaret L. admitted she has had a mental illness for some 25 years, and she described it in terms similar to those employed by Wells. She stated she was taking five different medications and would continue to do so if released. She wished to go to Fredericksburg, Virginia where her older brother lives: "I think he would be able to take care of me." She denied having delusions, but stated it was true that the Mafia was going to kill her family. Margaret L. stated that she can cook, shop for groceries, clean house and wash her clothes.

II

In Conservatorship of Besoyan (1986) 181 Cal.App.3d 34, 38, 226 Cal.Rptr. 196, the court held, "Wende review is applicable where appointed appellate counsel has filed a brief on behalf of an LPS conservatee which raises no specific issues or describes the appeal as frivolous."³ The court based its rationale on two lines of authority.

The first was headed by Conservatorship of Roidet (1979) 23 Cal.3d 219, 224, 152 Cal.Rptr. 425, 590 P.2d 1: "In effect, these statutes assure in many cases an unbroken and indefinite period of statesanctioned confinement. `The theoretical maximum period of detention is life as successive petitions may be filed....' (In re Gary W. (1971) 5 Cal.3d 296, 300, 96 Cal.Rptr. 1, 486 P.2d 1201, italics added.)" Roulet predated Wende and involved a different issue, whether civil or criminal procedures should be applied in the trial of conservatorships. Notwithstanding the Probate Code's adoption of civil rules (Prob.Code, § 1000), the court held the potential loss of freedom required that the finding of grave disability be made on a reasonable doubt standard by a unanimous jury.⁴ For reasons explained below, that part of the Besoyan foundation appears to be intact.

Besoyan's other rationale was that "... Wende review has been held applicable to certain civil proceedings dealing with the parent/child relationship, due to the fundamental nature of the rights involved...." There is no doubt that this analogous basis for the Besoyan holding has been eliminated. Our determination that Wende review was required in termination of parental rights cases based on an exhaustive examination of the law on the subject nationwide in In re Andrew B. (1995) 40 Cal.App.4th 825, 47 Cal.Rptr.2d 604 was rejected by the Supreme Court in In re Sade C, supra, 13 Cal.4th 952, 55 Cal.Rptr.2d 771, 920 P.2d 716.⁵

Although Sade C. recognized the existence of Besoyan in footnote 2, page 962, 55 Cal.Rptr.2d 771, 920 P.2d 716 (as well as Justice Mosk's supportive concurring and dissenting opinion in Conservatorship of Susan T., supra, 8 Cal.4th 1005, 1022-1023, 36 Cal.Rptr.2d 40, 884 P.2d 988), it did not directly disapprove of Besoyan. (After all, the issue of Wende review of conservatorship appeals was not specifically involved in the case.) Footnote 21 in Sade C. arguably does that, though. It states in part, "Insofar as any decision of ours or of the Courts of Appeal expressly or impliedly extends Anders beyond what is described in the text, it is disapproved." (In re Sade C, supra, 13 Cal.4th at pp. 993-994, fn. 21, 55 Cal.Rptr.2d 771, 920 P.2d 716; see also id., at pp. 983-984, fn. 13, 55 Cal.Rptr.2d 771, 920 P.2d 716.) This is the rule described in the text and repeatedly stated in Sade C: "... Anders's 'prophylactic' procedures have heretofore been limited in their applicability to appointed appellate counsel's representation of an indigent criminal defendant in his first appeal as of right. The United States Supreme Court established that limitation in Anders itself. It has reaffirmed it in its progeny." (Id. at p. 985, 55 Cal.Rptr.2d 771, 920 P.2d 716; see Pennsylvania v. Finley (1987) 481 U.S. 551, 556, 107 S.Ct. 1990, 95 L.Ed.2d 539.) Sade C. goes on to add this: "A fortiori, they [Wende/Anders] should not be applied ... outside the sphere of criminal law." (In re Sade C, supra, at p. 985, 55 Cal.Rptr.2d 771, 920 P.2d 716.)

Well, then, isn't that the end of the analysis? We do not believe so. Cases do not stand for questions not directly presented, or at least not directly answered, and Conservatorship of Roulet, supra, 23 Cal.3d 219, 152 Cal.Rptr. 425, 590 P.2d 1 is still good law, as is Lassiter v. Department of Social Sendees (1981) 452 U.S. 18, 26-27, 101 S.Ct. 2153, 68 L.Ed.2d 640 ("presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty," italics added).

A reasonable reading of Roulet is that a conservatorship proceeding, at least one that potentially implicates the loss of personal freedom of the proposed conservatee (compare Prob.Code, § 1801, subds. (a) ["conservator of the person"] and (b) ["conservator of the estate"]), is a criminal case for all practical purposes. Here is a pertinent part of the court's reasoning: "In criminal trials, proof of guilt beyond a reasonable doubt is an obstacle the state places in its own way, in order to lessen the possibility of convicting an innocent person. This procedural constraint is eloquent testimony to the high stakes involved—a defendant's freedom and reputation hinge on the verdict. In People v. Burnick (1975) 14 Cal.3d 306, 319-322 [121 Cal.Rptr. 488, 535 P.2d 352], this court explicitly recognized that civil commitment to a mental hospital, despite its civil label, threatens a person's liberty and dignity on as massive a scale as that traditionally associated with criminal prosecutions. One has only to imagine the horror experienced by a competent person falsely committed as mentally disturbed in order to appreciate that freedom is openly on trial at a civil commitment proceeding. Therefore, the Burnick court ruled that proof beyond a reasonable doubt applies to mentally disordered sex offender proceedings. [¶] The logic of Burnick is equally applicable here. The appointment of a...