Public Guardian of Contra Costa Cnty. v. E.B. (In re E.B.)

• Decision Date: 27 February 2020
• Docket Number: A157280
• Citation: 259 Cal.Rptr.3d 281,45 Cal.App.5th 986
• Parties: CONSERVATORSHIP of the Person and Estate OF E.B. Public Guardian of Contra Costa County, Petitioner and Respondent, v. E.B., Objector and Appellant.
• Court: California Court of Appeals Court of Appeals

45 Cal.App.5th 986

259 Cal.Rptr.3d 281

CONSERVATORSHIP of the Person and Estate OF E.B.Public Guardian of Contra Costa County, Petitioner and Respondent,

v.E.B., Objector and Appellant.

A157280

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

Filed: February 27, 2020

Sharon L. Anderson, County Counsel, Nina Dong, Deputy County Counsel, for Petitioner and Respondent.

By Appointment of the First District Court of Appeal under the First District Appellate Project, Jeremy T. Price and Jonathan Soglin, San Francisco, for Defendant and Appellant.

NEEDHAM, J.

Appellant E.B. was found to be gravely disabled following a jury trial at which he was called as a witness over his objection. He appeals from an order appointing respondent the Public Guardian of Contra Costa County (public guardian) as his conservator under the Lanterman-Petris-Short (LPS) Act and determining that his current placement in a mental health rehabilitation facility was the least restrictive and most appropriate placement. ( Welf. & Inst. Code, § 5350, 5358, subd. (c)(1).) Appellant’s sole contention is that he had a right to refuse to testify under the equal protection clause, because that right has been statutorily granted in proceedings to extend the commitment of persons found not guilty by reason of insanity (NGI), and he is entitled to the same protection. ( Pen. Code, § 1026.5.) We respectfully disagree with the recent decision in Conservatorship of Bryan S. (2019) 42 Cal.App.5th 190, 255 Cal.Rptr.3d 195 ( Bryan S. ) and conclude that LPS conservatees are similarly situated with NGI’s and with individuals subject to other involuntary civil commitments for purposes of the right against compelled testimony. But because the error was harmless in this case, we affirm.

I. BACKGROUND

Appellant has been diagnosed with schizophrenia

. He was placed under an LPS temporary conservatorship and on November 14, 2018, the public guardian filed a petition under the LPS Act seeking appointment of a conservator and alleging that appellant was gravely disabled as a result of a mental disorder, was unable or unwilling to accept treatment voluntarily, and was unable to manage his financial resources. The court denied appellant’s written objection to compelled testimony and a jury trial was held at which appellant was called as one of three witnesses who testified.

A. Dr. Levin

Psychiatrist Michael Levin, M.D., worked for Contra Costa County at the Concord Mental Health Clinic and evaluated clients for the public guardian’s office. He testified that appellant had diagnostic symptoms of schizophrenia

in the area of affect. Appellant was blunted and flat, and showed signs of "thought blocking," where he would stop during conversations and be in his own thoughts for a while. One reason for thought blocking is auditory hallucinations. Appellant takes three drugs to treat his schizophrenia

: the mood stabilizer Lithium

Carbonate, the highest dose of a monthly injection called Invega Sustenna, and a very potent medication called Clozaril, which requires that a patient’s white cell blood count be taken weekly. Appellant had told Dr. Levin that people have said he has schizophrenia, but he has it "[n]ot that much."

In Dr. Levin’s opinion, appellant had signs of anosognosia, meaning he had limited insight into his illness and it would be more difficult for him to cooperate with treatment. He had last worked 12 to 13 years ago assisting his father as a mechanic, and had been living on supplemental security income (SSI) ever since. Dr. Levin believed that appellant was gravely disabled and has a major psychiatric illness. When appellant decompensates, he becomes more agitated, labile (emotionally unstable) and paranoid. Dr. Levin did not believe appellant would be able to negotiate for food and shelter, noting that he has not been able to do so in the past and that his current plan was to return to an apartment where he had previously lived.

B. James Grey

James Grey, a licensed marriage and family therapist, first had contact with appellant when Grey was employed as a mental health clinical specialist at the Concord Adult Mental Health Clinic. He testified that he began assisting as appellant’s case manager in 2016, because appellant’s paranoid behaviors were causing his housing to be at risk. Appellant was then living in a specialized housing program that reduced his rate of rent so he could live independently on SSI. He had removed and attempted to change door locks, vandalized the apartment and taken the heater off the wall to look for monitoring devices. Grey set up clinic appointments and offered appellant transportation, but appellant was inconsistent in complying with medication and treatment. Sometimes, he was agitated and unwilling to go to the clinic.

Grey noticed that appellant had bottles of medication that were months old, as well as unfilled prescriptions written by the psychiatrist. Appellant failed to cash many of his weekly checks for personal needs, which Contra Costa County issued to appellant in its role as his money manager. Appellant once refused to cash a check at a bank because there were female tellers and he thought they were judging him because the check had the County’s name on it.

In 2017, Grey went to work with the public guardian and was assigned to appellant’s case as deputy conservator after a temporary conservatorship was ordered. Appellant was being treated at San Jose Behavioral Health, an in-patient hospital for people with mental illnesses, which released him to a shelter against the advice of Grey, who did not believe appellant could provide for his own food, clothing or shelter. Appellant ended up in an emergency psychiatric facility within a week, was again discharged against Grey’s advice, and was transferred to an inpatient psychiatric emergency hospital. From there, he went to Contra Costa Medical Center and later to Crestwood Napa Valley, also known as Crestwood Angwin. Grey visited appellant at the hospital and Crestwood, where he found him to be guarded and paranoid, with an extremely flat affect and a disorganized thought process. Appellant sometimes believed his mother was not actually his mother and that people around him were out to get him. He still failed to take his medications and adhere to treatment with Grey as his case manager. During the last few weeks before trial, Grey had met with appellant and he reluctantly took his medication in an agitated, frustrated manner. Appellant’s only plan if released was to return to his old apartment, but he did not present Grey with a lease or other verification he had rented the unit.

C. Appellant

Appellant testified that he had been staying at a board and care in Angwin, and before that he had been in a mental health unit. Asked if he knew why he was there, appellant responded, "I didn’t know T-Con had to deal with being here and being there. It has nothing to do with each other." He then testified that Grey said he needed extra care. Asked what he wanted to happen, he said, "Oh, I even kind of have really spoken not too clearly about this. But I’m more towards the neutrality and leaving enough area of a cushion that I could have—so I could leave the temporary conservatorship because maybe it’s that I don’t need it. And I know I have a mental health—mental health. [¶] I know what it is. I live with it. I take medications for it. When I know I don’t need medications, I don’t need medications. [¶] But if you will there’s always a little strike pad here that we can always roughly just braze and find my history find out my – and my future means too. I’m trying to save this for myself."

Asked if he believed he had a mental disorder, appellant testified that he had attention deficit disorder

as a kid, and then it changed. "I just had a learning disability. They didn’t say anything about anxiety disorders or any manic problem or anything else like that." Asked about his medication, he named Lithium Carbonate and Clozaril. He didn’t really understand why he was taking these medications; the medical doctors just decided he would take them. "I was admitted out of unbreeching contract. There’s something just going on." He acknowledged that he was "sort of still dependent" on the program at Angwin. He would take his medications if released from the hospital and would get them at Rite Aid. Asked how he would pay for food if released, appellant said, "Pay for food? Rely on the conservatorship."

II. DISCUSSION

A person is "gravely disabled" and may be placed in an LPS conservatorship when he or she has, "[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." ( Welf. & Inst. Code, § 5008, subd. (h)(1).) Appellant contends, as a matter of equal protection, that in the jury trial on the petition to establish an LPS conservatorship under this provision, he should not have been compelled to testify over his objection. We agree that he is similarly situated to persons subject to involuntary civil commitments who are not compelled to testify against themselves and that the court should have held an evidentiary hearing on whether the disparity was justified.

A. Equal Protection—Disparate Treatment of LPS Conservatees

"Under both the United States and California Constitutions, a person has the right to refuse to answer potentially incriminating questions put to him or her in any proceeding; in addition, the defendant in a criminal proceeding enjoys the right to refuse to testify at all." ( People v. Dunley (2016) 247 Cal.App.4th 1438, 1446, 203 Cal.Rptr.3d 335 ( Dunley ); see U.S. Const., 5th & 14th Amends.; Cal. Cont., art. 1, § 15.) There is no constitutional right to refuse to testify in civil proceedings, including in LPS commitment proceedings. ( Cramer v. Tyars (1979) 23 Cal.3d 131, 137–138, 151 Cal.Rptr. 653, 588 P.2d 793 ( Cramer ); Conservatorship of Bones (1987) 189 Cal.App.3d 1010, 1017,...