Opinion
A156419
11-18-2019
CONSERVATORSHIP OF the Person and Estate of BRYAN S. Public Guardian of Mendocino County, as Conservator, Etc., Petitioner and Respondent, v. Bryan S., Objector and Appellant.
Rudy Kraft, under appointment by the Court of Appeal, for Objector and Appellant. Katharine L. Elliott, County Counsel, Charlotte E. Scott, Deputy Counsel, County of Mendocino, for Petitioner and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part II.A.
Rudy Kraft, under appointment by the Court of Appeal, for Objector and Appellant.
Katharine L. Elliott, County Counsel, Charlotte E. Scott, Deputy Counsel, County of Mendocino, for Petitioner and Respondent.
Humes, P.J. Following a court trial, the court found appellant Bryan S. to be gravely disabled, appointed the Mendocino County Public Guardian/Conservator (public guardian) as his conservator, and imposed legal disabilities on him under the Lanterman-Petris-Short Act (hereafter the LPS Act or Act). On appeal, Bryan first argues that the term of his resulting commitment must be shortened because the trial court unlawfully continued the starting date of his trial. We conclude that Bryan forfeited the argument by failing to object below. Bryan also argues that he had a right under the equal protection clause to refuse to testify at his trial. We reject this argument in the published portion of our opinion and affirm the order establishing a conservatorship.
The Act is found at Welfare and Institutions Code section 5000 et seq uitur. All statutory references are to the Welfare and Institutions Code unless otherwise specified.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Bryan was arrested in October 2016 for resisting arrest after sheriff’s deputies responded to a woman’s call that he yelled at and chased her while she walked her dog. The trial court determined that Bryan was not competent to stand trial. A doctor recommended a treatment plan that included psychotropic medication to restore Bryan to competency, and he was taken to Napa State Hospital for treatment. After treating Bryan for two years, the hospital reported that it was unlikely he would soon regain competency, and it recommended the initiation of conservatorship proceedings.
In October 2018 the public guardian filed a conservatorship petition alleging that Bryan was gravely disabled as a result of a mental disorder. The petition was supported by the report of a clinical psychologist who evaluated Bryan and concluded that he was gravely disabled due to a mental disorder (schizophrenia ).
At the first hearing on the petition on November 1, 2018, the trial court appointed the public defender to represent Bryan and granted the request for a temporary conservatorship. The court then scheduled a further hearing on the request for a permanent conservatorship for November 29.
At the November 29 pretrial conference, Bryan’s attorney stated that Bryan wished to contest the permanent order and requested a trial. The trial court suggested scheduling the trial for January 28, 2019, and Bryan’s attorney agreed to the date without objection. The parties later stipulated that Bryan would appear at trial by video-conference because of concerns that transporting him from his facility in Redding to trial in Ukiah would aggravate Bryan’s health issues.
A court trial began as scheduled on January 28, 2019. County counsel called Bryan as a witness with no objection from Bryan’s attorney. The clinical psychologist whose report was submitted with the original conservatorship petition also testified, as did Bryan’s temporary conservator.
Following testimony and closing arguments, the trial court concluded that the public guardian had established beyond a reasonable doubt that Bryan was gravely disabled as a result of a mental disorder and was currently unable to provide for food, clothing, or shelter. The court appointed the public guardian as the conservator for a one-year period and issued letters of guardianship.
II.
DISCUSSION
Bryan does not challenge the sufficiency of the evidence supporting the conservatorship order. Instead, he argues two issues that were not raised below. We conclude that the first issue was forfeited and the second lacks merit. A. Bryan Forfeited His Timeliness Objection.
See footnote *, ante .
B. Bryan Did Not Have a Right to Refuse to Testify Based on Equal Protection Principles.
Bryan next argues that requiring him to testify violated his equal protection rights because others who are subject to different kinds of civil commitments cannot be compelled to testify. Although Bryan again did not raise this issue below, we exercise our discretion to address it because it raises a pure question of law and does not require the resolution of disputed factual issues. ( People v. Dunley (2016) 247 Cal.App.4th 1438, 1447, 203 Cal.Rptr.3d 335 ( Dunley ); People v. Curlee (2015) 237 Cal.App.4th 709, 715-716, 188 Cal.Rptr.3d 421 ( Curlee ) [addressing equal protection issue in part to forestall a later claim of ineffective assistance of counsel].) We nonetheless reject Bryan’s argument on the merits.
There is no constitutional right to refuse to testify in civil proceedings. ( Cramer v. Tyars (1979) 23 Cal.3d 131, 137-138, 151 Cal.Rptr. 653, 588 P.2d 793.) But "[u]nder 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. ( U.S. Const., 5th Amend.; Cal. Const., art. I, § 15.)" ( Hudec v. Superior Court (2015) 60 Cal.4th 815, 818, 181 Cal.Rptr.3d 748, 339 P.3d 998 ( Hudec ).) Thus, criminal defendants have an absolute right not to testify against themselves, and people who are involved in other proceedings may be compelled to testify but cannot be required to incriminate themselves.
Courts have grappled with the application of these principles to civil proceedings that share some characteristics of criminal proceedings. In Hudec , supra , 60 Cal.4th at page 818, 181 Cal.Rptr.3d 748, 339 P.3d 998, the Supreme Court held that a person found not guilty of a felony by reason of insanity (NGI) had a statutory right to refuse to take the witness stand in civil proceedings to extend the person’s commitment. The court based its holding on Penal Code section 1026.5, subdivision (b)(7), which extends to NGI commitment proceedings "the rights guaranteed under the federal and State Constitutions for criminal proceedings" and provides that "[a]ll proceedings shall be in accordance with applicable constitutional guarantees." ( Hudec , at pp. 818-819, 181 Cal.Rptr.3d 748, 339 P.3d 998.) Because criminal defendants are constitutionally guaranteed the right to be free from the compulsion to testify, the right therefore applies by statute in NGI commitment proceedings. ( Id. at p. 832, 181 Cal.Rptr.3d 748, 339 P.3d 998.)
Conservatorship proceedings are civil in nature, and it has long been established that "a proposed conservatee cannot refuse to testify at his own conservatorship trial" on the basis of a Fifth Amendment right against self-incrimination. ( Conservatorship of Baber (1984) 153 Cal.App.3d 542, 550, 200 Cal.Rptr. 262.) Bryan nonetheless insists that he has a right to refuse to testify based on equal-protection principles. He claims that proposed LPS Act conservatees are situated similarly with other classes of people subject to involuntary civil commitments, such as those who face NGI commitment proceedings. According to him, since people in those classes have a right to refuse to testify, proposed LPS Act conservatees should also have one. We are not persuaded.
" ‘ "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 ).) Following Hudec , courts have concluded that those subject to sexually violent predator (SVP) and mentally disordered offender (MDO) proceedings are similarly situated to those subject to NGI proceedings for purposes of the testimonial privilege. ( Curlee , supra , 237 Cal.App.4th at p. 720, 188 Cal.Rptr.3d 421 [SVP proceedings] ; Dunley , supra , 247 Cal.App.4th at pp. 1449-1450, 203 Cal.Rptr.3d 335 [MDO proceedings].) In Curlee , Division Four of this court pointed out that our Supreme Court in McKee had found that MDO’s and SVP’s were similarly situated, for purposes of evaluating whether terms of commitment violated equal protection, because both groups had been convicted of a serious or violent felony and been found beyond a reasonable doubt to suffer from mental disorders that render them dangerous to others. ( Curlee , at pp. 717-718, 188 Cal.Rptr.3d 421, citing McKee , supra , 47 Cal.4th at p. 1203, 104 Cal.Rptr.3d 427, 223 P.3d 566.) The Supreme Court also found that NGI’s and SVP’s were similarly situated because they had both committed criminal acts but were civilly committed because of their severe mental disorder. ( Curlee , at p. 718, 188 Cal.Rptr.3d 421, citing McKee , at p. 1207, 104 Cal.Rptr.3d 427, 223 P.3d 566.) Curlee reasoned that NGI’s and SVP’s were similarly situated for purposes of the testimonial privilege, because "[t]he preconditions to commitment are similar: Both groups have committed a criminal act and have been found to suffer from a mental condition that might present a danger to others.... The purpose of the commitment is the same: To protect the public from those who have committed criminal acts and have mental disorders and to provide mental health treatment for the disorders." ( Curlee , at p. 720, 188 Cal.Rptr.3d 421.) Dunley extended this reasoning to MDO’s and concluded that NGI’s, SVP’s, and MDO’s were all similarly situated because of the similar preconditions to commitment. ( Dunley , supra , at pp. 1449-1450, 203 Cal.Rptr.3d 335.)
Bryan argues that prospective LPS Act conservatees are similarly situated with NGI’s, SVP’s, and MDO’s, because they are also subject to involuntary civil commitment as a result of their mental health. We acknowledge that all four types of civil commitments focus on whether the subject suffers from a mental disorder. (§§ 5008, subd. (h)(1) [LPS Act defines "gravely disabled" as where person "as a result of a mental disorder" is unable to provide for basic needs], 6600, subd. (a)(1) [SVP is one who has been convicted a sexually violent offense and "has a diagnosed mental disorder" making the person a danger to health or safety or others]; Pen. Code, §§ 1026.5, subd. (b)(1) [extension of term of commitment for NGI only if person who has "mental disease, defect, or disorder" that represents substantial danger of physical harm to others], 2962, subd. (a)(1) [involuntary civil commitment as condition for parole of MDO, defined as prisoner with "severe mental disorder"].) But LPS Act conservatees, unlike those facing NGI, SVP, or MDO commitment proceedings, need not have been found to have committed a crime or be a danger to others. (Cf. Dunley , supra , 247 Cal.App.4th at p. 1448, 203 Cal.Rptr.3d 335.) As a result, there are far more placement options for conservatees, and these options include non-institutional settings. Courts must determine the least restrictive and most appropriate placement for conservatees, which includes placing them with family or friends. (§ 5358, subds. (a)(1)(A), (c)(1).)
These differences are fatal to Bryan’s equal protection claim. As our Supreme Court has explained, there is "no similarity between the aims and objectives of the [LPS Act] and those of the criminal law.... ‘The commitment is not initiated in response, or necessarily related, to any criminal acts.’ " ( Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1015, 36 Cal.Rptr.2d 40, 884 P.2d 988 ; see also Conservatorship of Ben C. (2007) 40 Cal.4th 529, 543, 53 Cal.Rptr.3d 856, 150 P.3d 738 [because criminal defendants and LPS Act conservatees are not similarly situated, no constitutional right to independent review in appeal from imposition of LPS Act conservatorship where appointed counsel finds no arguable issues].) Again, the purpose of civil commitments for NGI’s, SVP’s, and MDO’s is to protect the public from people who have been found to be dangerous to others and who need treatment for a mental disorder. ( Dunley , supra , 247 Cal.App.4th at pp. 1448-1449, 203 Cal.Rptr.3d 335.) By contrast, the primary purposes of the LPS Act are to provide prompt evaluation and treatment of persons with mental health disorders; to provide such people with individualized treatment, supervision, and placement services; and to encourage the use of all resources to accomplish these objectives. (§ 5001, subds. (b), (e), (f); Susan T. , at pp. 1019-1020, 36 Cal.Rptr.2d 40, 884 P.2d 988.) "We cannot overemphasize the importance of recognizing that a prospective conservatee is not a criminal defendant but, in many cases, a person in dire need of the state’s assistance." ( Conservatorship of Baber , supra , 153 Cal.App.3d at p. 550, 200 Cal.Rptr. 262.) True, one objective of the LPS Act is to "guarantee and protect public safety" (§ 5001, subd. (c)), but the Act was also enacted to protect persons with mental health disorders "from criminal acts." (Id. , subd. (g), italics added.)
The absence of a similar connection with the criminal justice system is directly relevant to whether LPS Act conservatees are similarly situated to the other three types of offenders with respect to the law in question . ( McKee , supra , 47 Cal.4th at p. 1202, 104 Cal.Rptr.3d 427, 223 P.3d 566.) "As expressed by the highest authority, the historic purpose of the privilege against being called as a witness has been to assure that the criminal justice system remains accusatorial, not inquisitorial. [Citations.] The extension of the privilege to an area outside the criminal justice system ... would contravene both the language and purpose of the privilege." ( Cramer v. Tyars , supra , 23 Cal.3d at pp. 137-138, 151 Cal.Rptr. 653, 588 P.2d 793.) Hudec concluded that NGI’s had the right to refuse to testify because of the statutory guarantee of all constitutional rights afforded in criminal proceedings ( Pen. Code, § 1026.5, subd. (b)(7) ). ( Hudec , supra , 60 Cal.4th at p. 832, 181 Cal.Rptr.3d 748, 339 P.3d 998.) This right was extended on equal protection grounds to those facing SVP and MDO commitment proceedings because, among other things, they likewise were found to have committed crimes. Because LPS Act conservatees are not similarly situated, equal protection does not require that they be free from the compulsion to testify.
Although we hold that Bryan did not have the right under the equal protection clause to refuse to testify, our "holding does not, in any way, intimate that a prospective conservatee will be compelled to answer questions which may incriminate him in a criminal matter." ( Conservatorship of Baber , supra , 153 Cal.App.3d at p. 550, 200 Cal.Rptr. 262.) Bryan does not argue that county counsel asked questions that led to incriminating testimony, and the public guardian does not claim it was entitled to elicit such testimony. Bryan’s constitutional rights were not violated.
III.
DISPOSITION
The order establishing a conservatorship is affirmed.
WE CONCUR:
Banke, J.
Sanchez, J.