Conservatorship of O.R. CA1/3 ( 2021 )

Filed 9/27/21 Conservatorship of O.R. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
Conservatorship of the Person
of O.R.
CONTRA COSTA COUNTY A161913
HEALTH SERVICES
DEPARTMENT, as Conservator, etc., (Contra Costa County
Petitioner and Respondent, Super. Ct. No.
MSP10-00332)
v.
O.R.,
Objector and Appellant.
O.R. appeals from a December 2020 order reestablishing his
conservatorship under the Lanterman-Petris-Short Act (LPS Act, Welf. &
Inst. Code, §§ 5000, 5350)1 and reappointing the Contra Costa County Health
Services Department (Department) as his conservator. O.R.’s appointed
counsel filed a brief raising no appellate issues. O.R. has not filed a
supplemental brief.
We dismiss the appeal. (Conservatorship of Ben C. (2007) 40 Cal.4th
529 (Ben C.).)
Undesignated statutory references are to the Welfare and
1
Institutions Code.
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BACKGROUND
O.R. suffers from a mental illness and is cognitively impaired. In 2010,
the trial court found O.R. gravely disabled as a result of his mental disorder
and appointed a conservator pursuant to the LPS Act. (§§ 5008, subd.
(h)(1)(A), 5350.) Between 2010 and 2019, the Department successfully
petitioned for one-year renewals of the conservatorship (§ 5361). In August
2020, the Department again petitioned for renewal, alleging O.R. remained
gravely disabled as a result of his mental disorder. O.R. waived his right to
a jury trial.
At a December 2020 bench trial, the Department offered the testimony
of Michael Levin, M.D., a psychiatrist qualified by the court as an expert on
psychiatry and grave disability. Levin testified that O.R. is gravely disabled
and unable to care for himself. At the conclusion of the bench trial, the court
found O.R. gravely disabled, renewed the conservatorship, and reappointed
the Department as O.R.’s conservator. (See Conservatorship of K.P. (2021)
11 Cal.5th 695, 710–712, 719.)
DISCUSSION
People v. Wende (1979) 25 Cal.3d 436 (Wende) establishes that “[i]n an
indigent criminal defendant’s first appeal as a matter of right, the Court of
Appeal must independently review the record if appointed counsel represents
he or she has found no arguable issues.” (Ben C., supra, 40 Cal.4th at p. 535.)
But as O.R.’s appointed counsel acknowledges, Wende review is not required
“in conservatorship proceedings.” The California Supreme Court has held
that the right to independent review does not extend to appeals from the
imposition of a conservatorship under the LPS Act. (Ben C., at p. 539; see
also People v. Freeman (2021) 61 Cal.App.5th 126, 132.)
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As our high court has explained: “[i]f appointed counsel in a
conservatorship appeal finds no arguable issues, counsel need not and should
not file a motion to withdraw. Instead, counsel should (1) inform the court he
or she has found no arguable issues to be pursued on appeal; and (2) file a
brief setting out the applicable facts and the law. Such a brief will provide an
adequate basis for the court to dismiss the appeal on its own motion.
Dismissal of an appeal raising no arguable issues is not inconsistent with
article VI, section 14 of the California Constitution requiring that decisions
determining causes ‘be in writing with reasons stated.’ Nothing is served by
requiring a written opinion when the court does not actually decide any
contested issues.” (Ben C., supra, 40 Cal.4th at p. 544, fns. omitted.)
Pursuant to the procedure set out in Ben C., appointed counsel filed
a brief setting out the applicable facts and law and indicating he found no
arguable issues to be pursued on appeal. (Ben C., supra, 40 Cal.4th at
p. 544.) In an accompanying declaration, counsel averred that he explained
his evaluation of the record on appeal and his “intention to file this [brief]”
to O.R. and notified O.R. of his right to file a supplemental brief within
30 days. Counsel also served O.R. with a copy of the brief. O.R. did not file
a supplemental brief within the allotted time period. Consistent with Ben C.,
we therefore dismiss the appeal. (See People v. Blanchard (2019)
43 Cal.App.5th 1020, 1023, 1026.)
DISPOSITION
The appeal is dismissed.
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_________________________
Chou, J.*
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Fujisaki, J.
A161913
*Judge of the Superior Court of San Mateo County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
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