Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. MH104283 David M. Gill, Judge.
McINTYRE, J.
Charles G. appeals an order establishing a one-year conservatorship of his person under the Lanterman-Petris-Short Act (LPS). (Welf. & Inst. Code, § 5000 et seq.; undesignated statutory references are to the Welfare and Institutions Code.) He contends the court's order should be reversed because (1) notice of his temporary conservatorship was statutorily deficient and a violation of his constitutional right to due process and (2) substantial evidence did not support the jury's finding that he was gravely disabled. We disagree and therefore affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Charles, who is 40-years old, started showing signs of mental illness nearly 20 years ago, before which he lived independently. During the ensuing years, Charles experienced auditory hallucinations, suffered from insomnia and paranoia, and attempted suicide twice. A court first ordered a temporary conservatorship of Charles in January 2003. Charles's physician terminated the temporary conservatorship a week later due to significant improvement. Charles regressed and, after he visited the hospital numerous times in the following months, a court ordered an LPS conservatorship of him in December 2003. Charles stayed at a special treatment center during this conservatorship. After finding he was no longer gravely disabled, doctors terminated the conservatorship in March 2004 and Charles went to live at a board and care facility.
Due to similar patterns of regression, courts ordered LPS conservatorships of Charles from November 2004 to February 2005 and from June 2008 to July 2009. During and after these conservatorships he spent time at board and care and independent living facilities. Both conservatorships ended due to a finding that Charles was no longer gravely disabled.
In November 2008, Charles began living with his sister and brother-in-law and received psychiatric treatment three times per week. However, approximately one month after his conservatorship ended in July 2009, he left his sister's home and moved to a homeless shelter. During the following weeks, Charles stopped taking his medication and became increasingly disorganized and delusional. He voluntarily admitted himself to Scripps Mercy Hospital for psychiatric stabilization on August 29, 2009.
On September 14, 2009, Dr. Yashwant Chaudhri, Charles's treating physician, recommended a petition for conservatorship. The next day San Diego County Health and Human Services Agency (Agency) served Charles with notice of its intention to establish a temporary conservatorship and notice of its conservatorship investigation. The notice did not state the time, date, or place of the hearing and did not contain the petition for temporary conservatorship.
On September 21, 2009, the court held a hearing ex parte and established a temporary conservatorship of Charles. Seven days later the Agency served Charles with the citation for conservatorship, conservatorship investigation report and the petition for appointment of a conservator and temporary conservator.
Charles demanded a jury trial, which took place from November 3 to 10, 2009. Before trial, the court denied Charles's motion to dismiss based on deficient notice of the temporary conservatorship hearing. The jury found Charles was gravely disabled, and the court ordered a one-year LPS conservatorship.
DISCUSSION
I. General Legal Principles
LPS governs involuntary treatment of the mentally ill in California. (§ 5001.) In order to establish a temporary conservatorship, the petitioner must give notice to the potential conservatee at least five days in advance of the hearing. (Prob. Code, § 2250.2; Super. Ct. San Diego County, Local Rules, rule 8.2.9; see § 5350 [procedure for establishing LPS conservatorships is generally the same as that in Prob. Code, § 1400 et seq.].) This notice must include the time, date and place of the hearing and the temporary conservatorship petition. (Prob. Code, § 2250, subd. (e)(3); Super. Ct. San Diego County, Local Rules, rule 8.1.6(B).)
A court may place a person under conservatorship for up to one year where he is presently gravely disabled and unwilling or unable to accept voluntary treatment. (§ 5350.) One is gravely disabled where the jury finds beyond a reasonable doubt he is "unable to provide for his... basic personal needs for food, clothing, or shelter." (§ 5008, subd. (h)(1)(A); Conservatorship of Murphy (1982) 134 Cal.App.3d 15, 18 (Murphy).) In determining whether the person is gravely disabled, the jury may consider the historical course of the person's mental illness and his insight or lack thereof into his illness. (§ 5008.2, subd. (a); Conservatorship of Walker (1989) 206 Cal.App.3d 1572, 1577 (Walker).) The jury may not base its determination solely on whether the person may regress in the future. (Murphy, supra, 134 Cal.App.3d at pp. 18-19.)
We review the record in the light most favorable to the respondent and will uphold the jury's finding of grave disability if it is supported by substantial evidence. (Walker, supra, 206 Cal.App.3d at p. 1577.) Evidence is substantial where it is reasonable, credible and of solid value from which a reasonable jury could find grave disability. (People v. Snow (2003) 30 Cal.4th 43, 66.)
II. Sufficiency of the Notice
Charles argues that we should reverse the court's order because notice of the temporary conservatorship was statutorily deficient and a violation of his constitutional right to due process. He claims this is so because the notice did not contain the time, date or place of the temporary conservatorship hearing or the petition for temporary conservatorship.
The Agency does not dispute that notice of the temporary conservatorship was deficient. However, temporary conservatorships are not appealable but are properly challenged in a writ petition. (§ 5275; Conservatorship of Early (1983) 35 Cal.3d 244, 255.) Accordingly, Charles may not on appeal raise issues regarding notice of the temporary conservatorship. Further, Charles may not appeal indirectly what he cannot appeal directly by challenging here the denial of his motion to dismiss based on the notice deficiencies. (See Spellens v. Spellens (1957) 49 Cal.2d 210, 228.) Moreover, the notice issue was moot when Charles raised it in his motion to dismiss because the temporary conservatorship terminated when trial began. (§ 5352.1.)
Finally, we do not consider Charles's claim that the Agency's notice deficiencies were routine other than to note the Agency indicated in its brief it has taken steps to fix the deficiencies.
III. Sufficiency of the Evidence
Charles contends substantial evidence did not support the jury's finding of grave disability. We disagree.
Testimony by case manager Francesca Rossi and Dr. Chaudhri showed Charles is unable to provide for his basic needs when unsupervised. When Rossi met Charles in 2008, he resided in an independent living facility and was in a deteriorated condition. He drank alcohol, could not formulate clear thoughts and responded to internal stimuli. Charles had also stopped taking his diabetic medication, without which he became "very lethargic... [and did] not have any energy."
Rossi observed that Charles's condition improved throughout his conservatorship during 2008 and 2009. He ate properly, followed his diabetic food regimen, and took his medications. However, "[a]s soon as he got off conservatorship, he left [his sister's] house; rejected [Rossi's] services; stopped taking his... medication" and Rossi lost track of him. Thus, Rossi opined Charles could not provide for his basic needs for food and shelter.
Dr. Chaudhri was of the same opinion. He testified that Charles only complied with proper treatment in a structured environment. Outside such an environment, Charles had problems taking his psychiatric, antihypertensive, anti-high cholesterol and diabetic medications, without which he becomes "distraught and disheveled and difficult to be directed." Dr. Chaudhri did not think Charles "could go grocery shopping [for] proper foods that he needs or... consistently [make] sure he gets the nutrition that he needs." He said Charles's plans to get a job were "unrealistic" and that Charles could not budget for himself. Ultimately Dr. Chaudhri testified that Charles was unable to provide for his own food, clothing and shelter.
Both witnesses also testified that Charles lacked awareness of his illness. Rossi said that, although Charles previously demonstrated awareness of his illness by articulating his symptoms, he is no longer able to do so. Dr. Chaudhri suggested that Charles often lacked understanding of his condition "above [a] certain threshold" necessary for self-treatment. He concluded Charles was presently gravely disabled.
Charles asserts substantial evidence supports the finding that he is able to care for his own basic needs. He references his testimony that he wanted to live at a board and care facility and would pay for it with his Social Security income. Charles even acknowledged at trial that he had to take his medication. However, our review of the record begins and ends with a determination whether substantial evidence, contradicted or uncontradicted, supports the jury's finding. (Walker, supra, 206 Cal.App.3d at p. 1577; Conservatorship of Amanda B. (2007) 149 Cal.App.4th 342, 350 (Amanda B.).) The jury was entitled to disregard Charles's testimony in light of the other substantial evidence which supported its finding of grave disability. (See Conservatorship of Guerrero (1999) 69 Cal.App.4th 442, 445-447 (Guerrero).)
Charles argues that Dr. Chaudhri improperly based his opinion on speculation about future regression and thus his opinion was not proper evidence that Charles could not presently care for himself. Dr. Chaudhri stated Charles was presently "pretty compliant" and "doing very well." He also testified "if we... slide [Charles] out of the hospital someday" he will not succeed because the "best predictor of future behavior clearly is past behavior." Charles contends these statements combined with Dr. Chaudhri's statement that Charles "may not" take his medication if unsupervised show Dr. Chaudhri based his opinion on speculation of future regression.
Reviewing the record in the light most favorable to the respondent, we disagree. In context, Dr. Chaudhri's statement that Charles was presently doing well was tantamount to an affirmation that Charles only did well in supervised environments. Although Dr. Chaudhri used the phrase "may not" occasionally, he also testified that Charles "will not be able to" consistently accept proper treatment if unsupervised. Moreover, while Dr. Chaudhri mentioned "future behavior", he confirmed that he based his opinions on Charles's behavior in the last six months.
Even if Dr. Chaudhri based his opinions in part on speculation of future regression, the jury was "not bound by [his] testimony... and was free to make" its own determination. (Amanda B., supra, 149 Cal.App.4th at p. 350.) The jury had sufficient other evidence on which to do so, and the court properly instructed it to refrain from considering future deterioration or relapse.
For much the same reason, Charles's attempts to distinguish Walker and Guerrero are misplaced. Charles asserts that since Dr. Chaudhri's testimony about Charles's lack of awareness of his illness was less certain than expert testimony in those cases, the jury's finding of grave disability was not supported by sufficient evidence. We disagree that Dr. Chaudhri's testimony was less certain than the testimony presented in Walker and Guerrero. Even if it was, the jury was not limited to consideration of Dr. Chaudhri's opinion or even to consideration of Charles's awareness of his illness. Rather, it could base its determination on the entire history of Charles's mental disorder. (§ 5008.2; Amanda B., supra, 149 Cal.App.4th at p. 350.) That history constitutes substantial evidence supporting the jury's finding of grave disability. (§ 5008.2.)
DISPOSITION
The order is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., HALLER, J.