K.R. v. Superior Court

Filed 6/22/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
K.R.,
Petitioner,
v.
THE SUPERIOR COURT OF NAPA A164821
COUNTY,
(Napa County
Respondent;
Super. Ct. No. 21MH000078)
THE PUBLIC CONSERVATOR OF
NAPA COUNTY,
Real Party in Interest.
The Lanterman-Petris-Short Act (LPS Act, Welf. & Inst. Code, § 5000
et seq.) 1 authorizes one-year conservatorships over individuals who are
“gravely disabled” by a mental health disorder or chronic alcoholism. Persons
subject to the LPS Act are entitled to a court or jury trial on whether they are
gravely disabled, and they must be personally advised of this right by the
trial court. (§ 5350; Prob. Code, § 1828, subd. (a)(6).) The trial demand may
be asserted either before or after the “hearing on the conservatorship
petition.” (§ 5350, subd. (d)(1) (hereafter, § 5350(d)(1)).) If the demand is
made before the hearing, “the demand shall constitute a waiver of the
1 Further statutory references are to the Welfare and Institutions Code
unless stated otherwise.
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hearing” (ibid.), and the matter will proceed to trial forthwith (§ 5350,
subd. (d)(2)). If no demand is made, the trial court must hold a timely
“hearing on the conservatorship petition,” and the proposed conservatee has
up to five days “following” the hearing to demand a trial by court or jury.
(§ 5350(d)(1).)
In the instant matter, the trial court held a hearing on March 2, 2022
and established a conservatorship over petitioner K.R. after considering
witness testimony and arguments (the March 2 proceeding). At no time prior
to the March 2 proceeding did K.R. or her counsel demand a court or jury
trial, nor was K.R. ever personally advised by the trial court of her right to a
jury trial. Immediately after the court announced its decision to establish the
conservatorship, K.R.’s counsel demanded a jury trial pursuant to section
5350. That demand was eventually denied.
We agree with K.R. that the trial court erred in denying her timely jury
trial demand. In so concluding, we reject the contention of real party in
interest Public Conservator of Napa County (the public conservator) that the
March 2 proceeding was actually a bench trial and that K.R. forfeited or
waived her jury trial right by participating in it. Applying settled rules of
statutory construction, we conclude that section 5350(d)(1) draws a
distinction between a “hearing” and a “trial” on a conservatorship petition
and offers no option to a trial court to conduct a bench trial in the absence of
a demand by the proposed conservatee. Moreover, the record affords no basis
for concluding that K.R. forfeited or waived her right to a jury trial.
Accordingly, we will grant K.R.’s petition for a writ of mandate.
FACTUAL AND PROCEDURAL BACKGROUND
On October 7, 2021, the public conservator petitioned to be appointed
conservator over K.R. The petition alleged that K.R. had been evaluated by a
2
mental health professional and found to be gravely disabled due to a mental
disorder. The petition and accompanying “Notice of Hearing” indicated that
the hearing on the petition was scheduled for November 16, 2021.
Prior to that scheduled date, on October 14, 2021, the parties appeared
before the trial court to discuss a temporary conservatorship. As reflected in
the minute order of the October 14 hearing, the court granted a temporary
conservatorship after K.R. responded to its questions and K.R.’s counsel
“submitted the matter on the Petition.”
On November 16, 2021, the parties appeared before the trial court to
“Establish Conservatorship/Guardianship.” As described in the minute
order, the parties agreed to continue the matter, with the temporary
conservatorship remaining in effect. Thereafter, the parties appeared before
the trial court on November 30, 2021, January 25, 2022, and February 9,
2022, and each time, the matter was continued to a later date.
On March 2, 2022, the matter again came before the trial court to
“Establish Conservatorship/Guardianship.” The minute order reflects that
the court heard testimony from forensic psychologist Dr. Richard Geisler,
deputy public conservator Gianna Thompson, and K.R. The court also
considered documentary evidence and arguments from counsel. Immediately
after the court granted the petition to establish a conservatorship, K.R.’s
counsel requested “a Jury Trial for a Re-Hearing on this issue pursuant to
WIC5350.” The court continued the matter to March 7, 2022. At the
continued hearing, the court denied K.R.’s request for a jury trial, citing
Baber v. Superior Court (1980) 113 Cal.App.3d 955 (Baber).
K.R. filed the instant petition for a writ of mandate alleging the trial
court’s denial of her jury trial demand was contrary to law, an abuse of
discretion, and in excess of the court’s jurisdiction. The petition recounts that
3
neither K.R. nor her counsel waived K.R.’s right to a jury trial (§ 5350(d)(1))
following the March 2, 2022 hearing. The petition further alleges that the
court failed to: (1) inquire, at any of the multiple hearings, whether K.R. was
waiving her right to a jury trial and agreeing to have the matter heard as a
court trial; and (2) advise K.R. of her right to a jury trial.
On May 13, 2022, we issued an order to show cause why the relief
requested in the writ petition should not be granted. 2
DISCUSSION
K.R. contends the trial court erroneously denied her demand for a jury
trial because section 5350(d)(1) afforded her the right to demand a jury trial
within five days after the March 2 proceeding. The public conservator
disputes that the March 2 proceeding was a “hearing” on the petition,
arguing instead that it was a bench trial and that K.R. waived her right to a
jury trial by (1) failing to demand a jury trial within five days of the parties’
prior court appearances in late 2021 and early 2022; and (2) fully
participating in the March 2 proceeding without objecting to the absence of a
jury.
The resolution of this dispute requires us to interpret relevant
provisions of the LPS Act regarding the apparent distinction between a
“hearing” and a “trial” on a conservatorship petition. Our role in this regard
“ ‘is to ascertain the intent of the Legislature so as to effectuate the purpose
of the enactment. [Citation.] We look first to the words of the statute, which
2 K.R. separately filed a notice of appeal from the March 7, 2022, order
denying her request for a jury trial (case No. A164886). In our order to show
cause, dated May 13, 2022, we observed that K.R.’s appeal is an inadequate
remedy under the circumstances, and we deemed it appropriate to decide the
merits of her case in the writ petition proceeding. Accordingly, we stayed
further proceedings in the appeal until resolution of the writ petition.
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are the most reliable indications of the Legislature’s intent. [Citation.] We
construe the words of a statute in context, and harmonize the various parts of
an enactment by considering the provision at issue in the context of the
statutory framework as a whole.’ ” (Kim v. Reins International California,
Inc. (2020) 9 Cal.5th 73, 83.)
Chapter 3 of the LPS Act (§§ 5350–5372) provides for the imposition of
a conservatorship over a gravely disabled individual under specifically
described circumstances. Where, as here, a mental health professional
recommends the initiation of conservatorship proceedings, and a county
officer providing conservatorship investigations agrees with the
recommendation, the officer must petition the superior court in the county of
the patient’s residence to establish conservatorship. (§ 5352.) Upon filing of
the petition, “[a] hearing shall be held . . . within 30 days of the date of the
petition.” (§ 5365, italics added.)
Chapter 3 also provides that proposed conservatees have the right to a
trial by court or jury to determine whether they are gravely disabled.
(§ 5350(d)(1).) “Demand for court or jury trial shall be made within five days
following the hearing on the conservatorship petition. If the proposed
conservatee demands a court or jury trial before the date of the hearing as
provided for in Section 5365, the demand shall constitute a waiver of the
hearing.” (Ibid.) “Court or jury trial shall commence within 10 days of the
date of the demand, except that the court shall continue the trial date for a
period not to exceed 15 days upon the request of counsel for the proposed
conservatee.” (§ 5350, subd. (d)(2).)
By its plain terms, section 5350 evinces the Legislature’s intent that a
“hearing” is to be the default judicial proceeding for LPS conservatorship
petitions. The hearing is waived only if the proposed conservatee demands a
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trial before the hearing, in which case the matter proceeds to trial without a
hearing. (§ 5350(d)(1), (2).) But if the proposed conservatee makes no pre-
hearing trial demand, then the trial court must hold a timely hearing on the
conservatorship petition (§§ 5350(d)(1), 5365), and the proposed conservatee
retains the option of demanding a court or jury trial within five days
“following” that hearing (§ 5350(d)(1)). Although section 5350 does not define
the terms “hearing” and “trial,” it is manifested from the statutory language
that the two are procedurally distinct. 3 Thus, section 5350 offers no option to
a trial court to conduct a trial in the absence of a trial demand, and the
statute leaves it to the proposed conservatee to decide whether to demand a
court or jury trial either before or after the statutorily contemplated hearing.
In the instant matter, the minute orders from November 2021 to March
2022 reflect that the March 2 proceeding was the culmination of several
continuances of the hearing for the conservatorship petition that was
originally set for November 16, 2021. It is undisputed that K.R. never
demanded a court or jury trial prior to the March 2 proceeding. Accordingly,
under the statutory framework set forth above, the March 2 proceeding is
properly regarded as the “hearing on the conservatorship petition,” and K.R.
retained her right to demand a jury trial in the five days “following” the
March 2 proceeding. (§ 5350(d)(1).)
3 We note that section 5118, recently amended by Senate Bill No. 578
(2021–2022 Reg. Sess.), broadly defines “hearing” to include “jury trials.”
(§ 5118, subd. (d).) However, this definition applies only “[a]s used in this
section” (ibid.), which pertains to the times, places, and presumptive
confidentiality of LPS hearings (id., subds. (a)–(c)). Thus, we do not construe
section 5118, subdivision (d), as providing a general definition of “hearing” for
the entire LPS Act. Indeed, such a construction would render meaningless
the clear distinction in section 5350(d)(1), between the “hearing on the
conservatorship petition” and a “trial.”
6
In denying K.R.’s demand for a jury trial pursuant to Baber, the trial
court appears to have construed the demand as a request for rehearing under
section 5364. 4 But even though the minute order indicates that K.R.’s
counsel requested “a Jury Trial for a Re-Hearing,” the order specifically
reflects that the request for a jury trial was made pursuant to “WIC5350,”
not section 5364. As discussed, section 5350(d)(1) afforded K.R. the right to
timely request and obtain a jury trial, and section 5364 provides no basis for
sidestepping that right.
The public conservator nevertheless contends that K.R. waived her
right to a jury trial in several ways. Starting from the premise the parties’
appearances on October 14, 2021, November 30, 2021, January 25, 2022, and
February 9, 2022, were “hearings” within the meaning of section 5350(d)(1),
the public conservator argues that these hearings triggered K.R.’s five-day
deadline to request a trial. Citing Conservatorship of Joseph W. (2011) 199
Cal.App.4th 953 (Joseph W.), the public conservator argues that K.R. waived
her jury trial right because she failed to timely demand a trial after those
appearances. We are not persuaded.
Although Joseph W. did not directly involve proceedings under section
5350, the court sought to “harmoniz[e]” sections 5362 5 and 5350 and
4 Section 5364 provides in relevant part: “At any time, the conservatee
may petition the superior court for a rehearing as to his status as a
conservatee.” Baber held there is no right to a jury trial at a section 5364
rehearing. (Baber, supra, 113 Cal.App.3d at p. 960.)
5 Section 5362 prescribes the required content for a notice of impending
termination of conservatorship. The notice must indicate that if the
conservator petitions to reestablish conservatorship, the conservatee (or other
noticed person) may request a “court hearing or jury trial” on the issue of
whether the conservatee is still gravely disabled and in need of
conservatorship. (§ 5362, subd. (a).) In the absence of such request, the trial
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concluded the term “hearing” had the same meaning in both statutes.
(Joseph W., supra, 199 Cal.App.4th at p. 965.) Specifically, Joseph W.
interpreted the term to mean “a summary-type proceeding short of a ‘trial.’ ”
(Id. at pp. 965–966.) Even accepting the general correctness of Joseph W.’s
interpretation, section 5350(d)(1) is not reasonably construed as imposing its
five-day deadline for a court or jury trial demand where, as here, court
appearances merely resulted in stipulations to continue the noticed hearing
to future dates. The more reasonable and sensible interpretation of section
5350(d)(1) is that a trial demand is timely if it is asserted no later than five
days after the completion of the statutorily contemplated hearing on the
conservatorship petition. Under that interpretation, K.R.’s trial demand,
asserted at the conclusion of the March 2 proceeding, was timely.
We also disagree with the public conservator’s suggestion that the
parties’ appearance at the hearing on October 14, 2021, triggered K.R.’s five-
day deadline to demand a trial. The record establishes that the
conservatorship petition and accompanying notice were served on October 7,
2021 and specified that the hearing on the petition was scheduled for
November 16, 2021, not October 14, 2021. That the parties appeared on
October 14 to discuss a temporary conservatorship lends no basis for
concluding that the conservatorship hearing was held on that date. Indeed,
such a conclusion would run afoul of the notice rules incorporated into the
LPS Act. (See § 5350 [procedures under chapter 3 of LPS Act “shall be the
same as” under Division 4 (commencing with § 1400) of Probate Code, except
as otherwise provided in § 5350].) As relevant here, Probate Code section
1822, subdivision (a), provides that notice must be given “[a]t least 15 days
court may, on its own motion, accept or reject the petition to reestablish the
conservatorship. (§ 5362, subd. (b).)
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before the hearing on the petition for appointment of a conservator” and
prohibits the court from “shorten[ing] the time for giving the notice of hearing
under this section.” Since the conservatorship petition and hearing notice
were served on October 7, 2021, the conservatorship hearing could not have
been held a mere seven days later on October 14.
The public conservator next contends K.R. waived her right to a jury
trial by fully participating in the March 2 proceeding, as that proceeding was
“indisputably” a bench trial. But the public conservator makes no attempt to
explain how the trial court could properly hold a bench trial in the absence of
a demand by K.R. given the statutory framework discussed above.
Moreover, while the absence of a reporter’s transcript precludes us from
examining the record for any references to the setting of a bench “trial,” we
note the public conservator does not dispute K.R.’s assertion that “[a]t no
point did the Superior Court identify or designate the March 2, 2022 hearing
on the petition as a Court Trial.” Notably, the court’s minute orders—which
are all fairly detailed—did not mention the setting or holding of a “trial” on
March 2, 2022. And even the court’s own written order after the March 2
proceeding states that “[t]he Petition for Appointment of Conservator came
on for hearing,” not a trial. (Italics added.)
Despite the foregoing, the public conservator maintains that K.R. and
her counsel should have realized the March 2 proceeding was a bench trial
because it was not a “hearing” (e.g., a summary-type proceeding short of a
trial) and instead had certain defining features of a “trial” (e.g., oral
testimony, determination of legal and factual issues). Relying again on
Joseph W., the public conservator contends that K.R.’s failure to object to the
absence of a jury in the March 2 proceeding constituted a waiver of her right
9
to a jury trial. This waiver contention requires a more in-depth review of
Joseph W.
In Joseph W., the Court of Appeal acknowledged that the trial court
erred in construing the conservatee’s request for a “court hearing” as a
request for a “court trial.” (Joseph W., supra, 199 Cal.App.4th at p. 967.) But
the court concluded that the conservatee “waived or forfeited that error, along
with his statutory right to a jury trial,” by “appearing with his counsel at,
and fully participating in, the court trial on the Petition without objecting to
the court’s misinterpretation of his request for a hearing and without either
(1) expressly requesting only a summary-type, initial hearing (and thereby
preserving his right to subsequently demand a court or jury trial) or
(2) demanding a jury (and not a court) trial.” (Id. at pp. 967–968.)
We decline to apply Joseph W.’s forfeiture rationale, as it relied
principally on decisions applying the forfeiture doctrine without
distinguishing between a party’s forfeiture of a claim of error and the validity
of a party’s waiver of important statutory rights. (See Joseph W., supra, 199
Cal.App.4th at pp. 968–969.) 6 The distinction is a critical one, as “forfeiture
results from the failure to invoke a right, while waiver denotes an express
relinquishment of a known right; the two are not the same.” (People v.
Romero (2008) 44 Cal.4th 386, 411.)
6 Joseph W. also relied on certain older decisions in ordinary civil actions
where the appellants knowingly went to trial but failed to object to the
absence of a jury. (See Joseph W., supra, 199 Cal.App.4th at p. 968, citing
City of Los Angeles v. Zeller (1917) 176 Cal. 194, Ferrea v. Chabot (1898) 121
Cal. 223, Boston Tunel Co. v. McKenzie (1885) 67 Cal. 485, Glogau v. Hagan
(1951) 107 Cal.App.2d 313, and Pink v. Slater (1955) 131 Cal.App.2d 816.)
Those cases do not provide an apt analogy given the specific statutory
framework governing conservatorships.
10
As to the question of forfeiture, we cannot conclude that K.R. forfeited
her claim of error by participating in the March 2 proceeding without
objection. To the contrary, based on the totality of circumstances it was
reasonable for K.R. and her counsel to believe the March 2 proceeding was
the statutorily referenced hearing on the conservatorship petition.
Furthermore, and in any event, because the forfeiture doctrine is not absolute
(People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6), and there appear to be
no disputed facts at issue, we choose to exercise our discretion to address the
merits of the claim notwithstanding K.R.’s failure to object below. (See
Conservatorship of Bryan S. (2019) 42 Cal.App.5th 190, 194, disapproved on
other grounds in Public Guardian of Contra Costa County v. Eric B. (2022) 12
Cal.5th 1085, 1107.)
As for the issue of waiver, several appellate courts postdating Joseph
W. have reaffirmed the principle that a person’s waiver of the statutory right
to a jury trial in LPS civil commitment proceedings must be knowingly and
voluntarily made. (See Conservatorship of Joanne R. (2021) 72 Cal.App.5th
1009, 1017–1018; Conservatorship of C.O. (2021) 71 Cal.App.5th 894, 914–
915 (C.O.); Conservatorship of Heather W. (2016) 245 Cal.App.4th 378, 383–
385 (Heather W.); Conservatorship of Kevin A. (2015) 240 Cal.App.4th 1241,
1249–1251 (Kevin A.).) 7 Although the courts are split as to whether the LPS
7 These cases also recognize that a trial court may accept an attorney’s
waiver of the client’s jury trial right where the client lacks the capacity to
make a knowing and voluntary waiver. (See C.O., supra, 71 Cal.App.5th at
p. 911; Heather W., supra, 245 Cal.App.4th at p. 385; Kevin A., supra, 240
Cal.App.4th at p. 1251.) But here, there was no express waiver by K.R.’s
counsel. Furthermore, in order for the trial court to accept counsel’s waiver,
the court must determine that the client lacked the capacity to knowingly
and voluntarily waive the right. (Heather W., at p. 385; Kevin A., at p. 1251.)
In this case, there is no indication in the record that the trial court made such
a determination as to K.R. “[C]onservatees are not, by reason of their
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Act or principles of due process require a trial court to obtain a personal, on-
the-record waiver of the jury trial right (see C.O., at pp. 909–913, 915
[disagreeing with Heather W.]), the decisions are in accord that a trial court
must personally advise a person of the statutory right to a jury trial in LPS
proceedings. (C.O., at pp. 908–909 [Prob. Code, § 1828, subd. (a)(6),
incorporated into LPS Act by section 5350, requires trial court to personally
advise proposed conservatee of jury trial right]; Heather W., at pp. 383–384
[same]; Kevin A., at p. 1249 [same].) This “procedural safeguard” (C.O., at
p. 909) unquestionably bears upon our determination of waiver. On this
score, the public conservator appears to concede that the trial court did not
personally advise K.R. of her right to a jury trial during the proceedings
below. Since our review of the record also discloses no such advisement by
the court, the claim of waiver is rejected.
The public conservator argues that, in any event, the trial court’s
erroneous failure to advise was harmless. We disagree. An error resulting in
a complete denial of a person’s right to a jury trial on the entire cause in a
commitment proceeding is not susceptible to ordinary harmless error analysis
and automatically requires reversal. (Heather W., supra, 245 Cal.App.4th at
p. 385.) Here, K.R. was not merely denied personal advisement of her right
to a jury trial; for the reasons discussed, she suffered a complete denial of the
“fundamental right to decide who hears the evidence to make [the grave
disability] finding—a judge or a jury. The trial court’s error is not harmless.”
(Id. at p. 384.)
conservatorship, automatically considered incompetent, and their ability to
knowingly and intelligently waive their hearing rights is a question of fact[.]”
(Conservatorship of Moore (1986) 185 Cal.App.3d 718, 732.)
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In closing, we reject the public conservator’s additional suggestion that
the trial court’s failure to personally advise K.R. of the right to a jury trial
warrants application of the harmless error analysis employed in C.O., supra,
71 Cal.App.5th 894. C.O. held that where a trial court accepts counsel’s
waiver of the jury trial right on the client’s behalf, the court’s failure to
personally advise the proposed conservatee of the jury trial right does not by
itself warrant automatic reversal and may be found harmless if the record
affirmatively shows, based on the totality of the circumstances, that the
waiver was knowing and voluntary. (C.O., at p. 918.) Here, however, the
record contains no indication that K.R.’s counsel purported to waive K.R.’s
jury trial right or that the trial court acted to accept any such waiver.
Instead, it appears that both K.R. and her counsel proceeded reasonably in
assuming the March 2 proceeding was simply the statutorily authorized
hearing on the conservatorship petition. At bottom, the record in this case
lacks the requisite facts to warrant a finding of harmless error under C.O.
DISPOSITION
The petition is granted. Let a peremptory writ of mandate issue
directing the superior court to vacate its March 7, 2022, order denying K.R.’s
demand for a jury trial and to enter a new order granting the demand and
scheduling a jury trial on the conservatorship petition.
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_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Petrou, J.
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Trial Court: Napa County Superior Court
Trial Judge: Hon. Scott Young
Counsel: Ronald H. Abernethy, Napa County Public Defender, for
Petitioner.
Thomas C. Zeleny, Interim County Counsel, Susan Altman,
Deputy County Counsel, for Real Party in Interest.
15