Koper v. K.W. (In re K.W.)

• Decision Date: 03 August 2017
• Docket Number: A148614
• Citation: 13 Cal.App.5th 1274,221 Cal.Rptr.3d 622
• Court: California Court of Appeals Court of Appeals
• Parties: CONSERVATORSHIP OF the Person of K.W. Christine Koper, as Public Conservator, etc., Petitioner and Respondent, v. K.W., Objector and Appellant.

13 Cal.App.5th 1274

221 Cal.Rptr.3d 622

CONSERVATORSHIP OF the Person of K.W.Christine Koper, as Public Conservator, etc., Petitioner and Respondent,

v.K.W., Objector and Appellant.

A148614

Court of Appeal, First District, Division 5, California.

Filed August 3, 2017

Jeremy T. Price, under appointment by the Court of Appeal, for Objector and Appellant.

Bruce D. Goldstein, County Counsel, Phyllis C. Gallagher, Michael King, Deputy County Counsel, and Katherine P. McGrath for Petitioner and Respondent.

BRUINIERS, J.

The Sonoma County Public Conservator (Conservator) petitioned under the provisions of the Lanterman-Petris-Short Act (LPS Act) ( Welf. & Inst. Code, § 5000 et seq. )¹ for appointment as conservator of the person for appellant K.W. The petition alleged K.W. was gravely disabled due to a mental disorder, unable to provide for his basic needs for food, clothing, or shelter, and incapable of accepting treatment voluntarily. After a May 2015 hearing, the court granted the petition for an initial one-year term.

The Conservator petitioned for reappointment in April 2016, alleging K.W. remained gravely disabled and unable to care for his own needs. K.W. demanded a jury trial. The jury found him gravely disabled due to mental disorder, and the court reappointed the Conservator for an additional one-year term.² K.W. challenges the continued conservatorship, contending that the trial court erred in permitting the jury to consider case-specific hearsay testimony from an expert witness. We find any error to be harmless and affirm.

I. BACKGROUND

K.W.'s LPS conservatorship was established following a contested bench trial in May 2015. Psychiatrist Gary Bravo, M.D., testified he had diagnosed K.W. with a bipolar schizoaffective disorder and opined that K.W. had severe problems with impulse control, had a denial of his illness and need for medications, and could not independently provide for his food, clothing and shelter because of his illness. The court found K.W. to be gravely disabled and appointed the Conservator for a one-year term.³

The Conservator petitioned for reappointment (§ 5361) in April 2016. K.W. requested a jury trial, which commenced and concluded on May 31, 2016. Bravo, who was board certified by the American Board of Psychiatry and Neurology, testified as an expert in forensic psychiatry. He served as a consulting member of K.W.'s treatment team, and consulted about appropriate placements and services for K.W. As part of his pretrial evaluation of K.W., Bravo conducted a 50-minute face-to-face interview with K.W. Bravo also had interviewed K.W. in connection with prior conservatorship evaluations and was "pretty familiar" with him. Bravo personally observed K.W. when he was a patient at the county's psychiatric emergency facilities. In addition to personal observations, Bravo relied on medical records from the Sonoma County Behavioral Health Department, and medical records from the locked Santa Cruz facility (7th Avenue Center) where K.W. was receiving treatment. Bravo also spoke to K.W.'s former outpatient psychiatrist, and with a social worker acting as a liaison for patients at the 7th Avenue Center.

In addition to his own observations, Bravo testified concerning "information about [K.W.'s] past and his functioning in other settings" provided by "other people." This information, obtained from historical reports and medical records, included allegations that K.W. was evicted from a room and board facility for causing a fire by leaving cooking items on a hot stove; spent money recklessly; engaged in altercations with others by insulting or provoking them, resulting in his expulsion from a psychiatric facility; and inappropriately touched female residents at a psychiatric facility where he had been confined.

Bravo diagnosed K.W. as suffering from a schizoaffective disorder and identified his "main symptoms" as "disorganized thinking and behaviors" resulting in lack of impulse control, impaired judgment, and "paranoid and grandiose" delusions. Bravo said the delusions caused K.W. to "think his capabilities are better than they actually are...." Bravo opined that K.W. lacked insight into his mental illness and the impact of that illness on his behaviors and ability to provide for himself. While K.W. exhibited better insight than in the past, Bravo said K.W. "still has a way to go in the realm of insight." Bravo opined that K.W. met the criteria for grave disability criteria established in the LPS Act and was unable to care for himself. In Bravo's opinion, K.W. would return to San Francisco or Los Angeles if not conserved, and he would become homeless and, eventually, return to a psychiatric facility or jail.

K.W. testified and acknowledged he suffered from schizoaffective and bipolar disorders, as well as diabetes. He identified his prescribed medications and said he would continue to take them if released. He denied refusing medication while hospitalized. If released, K.W. said he would seek emergency psychiatric care if necessary. He had $3,000 in a personal bank account and received $890 each month in Supplemental Security Income, which was managed by a designated representative payee. K.W. said he knew how to cook, named grocery stores where he would do his food shopping, knew of a free soup kitchen and "pantries in the neighborhood that offer gourmet, free bags of groceries" if he were to run out of money. He had adequate clothing but would go to Goodwill for clothing if necessary. K.W. said he would be able to live with friends or at a shelter or "easily rent an apartment on their Section 8 housing list that I'm on, or stay at Redwood Gospel for a night." When asked if he could take care of himself, K.W. insisted: "I have ever since I left my parents' home in '86. It's very simple for me. It's not a complicated issue. I have done very well."

K.W. was examined about an incident in which he "jumped out of [a] van" while being transported in San Francisco. K.W. said he was "just visiting" a friend. He initially denied having a criminal record but then admitted a "domestic incident" involving his brother. He admitted to an April 2016 altercation at the 7th Avenue Center. K.W. said he had been struck by another person, but denied hitting back, saying he only put his fist up "[i]n defiance" and "[i]n protest." Asked if he made comments that tended to incite other people, K.W. maintained he "might comment on what they are doing or how I perceive they're doing it wrong or a small, constructive criticism." He insisted he would not hit anyone if released from conservatorship.

The jury found K.W. was gravely disabled due to a mental disorder. Based on that finding, the court ordered reestablishment of the conservatorship.

II. DISCUSSION

Under the LPS Act, a conservator may be appointed "for a person who is gravely disabled as a result of a mental 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).) 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 personal needs for food, clothing, or shelter." "The clear import of the LPS Act is to use the involuntary commitment power of the state sparingly and only for those truly necessary cases where a ‘gravely disabled’ person is incapable of providing for his basic needs either alone or with help from others." ( Conservatorship of Smith (1986) 187 Cal.App.3d 903, 908, 232 Cal.Rptr. 277.)

" ‘[T]o establish that a person is gravely disabled, the evidence must support an objective finding that the person, due to mental disorder, is incapacitated or rendered unable to carry out the transactions necessary for survival or otherwise provide for his or her basic needs of food, clothing, or shelter,’ and the public guardian must prove beyond a reasonable doubt that the proposed conservatee is gravely disabled. [Citation.] On appeal, we apply the substantial evidence test to determine whether the record supports the court's finding of grave disability. The testimony of one witness may be sufficient to support such a finding." ( Conservatorship of Jesse G. (2016) 248 Cal.App.4th 453, 460–461, 203 Cal.Rptr.3d 667.)

K.W. does not challenge the sufficiency of evidence actually presented to the jury to establish grave disability. Rather, he argues the trial court erred in permitting case-specific hearsay evidence in support of expert opinion of his disability, in violation of the rule articulated by our Supreme Court in People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320 ( Sanchez ). He contends that the rule of Sanchez must be applied retroactively to his case.

A. Sanchez

Expert testimony may be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. ( Evid. Code, § 801, subd. (b).) "So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony." ( People v. Gardeley (1996) 14 Cal.4th 605, 618, 59 Cal.Rptr.2d 356, 927 P.2d 713 ( Gardeley ), disapproved in other respects by Sanchez, supra, 63 Cal.4th at p. 686, fn. 13, 204 Cal.Rptr.3d 102, 374 P.3d 320.) At the time of K.W.'s trial, Gardeley was controlling authority. Gardeley further permitted a qualified expert witness to testify on direct examination to any sufficiently reliable hearsay sources used in formulation of the expert's opinion. ( Gardeley , at p. 618, 59 Cal.Rptr.2d 356, 927 P.2d 713 ["because Evidence Code section 802 allows an expert witness to ...