Conservatorship of Joanne R.

Filed 12/17/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
Conservatorship of the Person of B310906
JOANNE R. (Los Angeles County Super.
Ct. No. ZE043096)
RICHARD STUSSER, as
Conservator, etc.,
Petitioner and Respondent,
v.
JOANNE R.,
Objector and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa R. Jaskol, Judge. Affirmed.
Rudy Kraft, under appointment by the Court of Appeal, for
Objector and Appellant.
Ellen S. Finkelberg for Petitioner and Respondent.
__________________________
Joanne R. is a conservatee subject to a conservatorship
under the Lanterman-Petris-Short (LPS) Act (Welf. & Inst.
Code,1 § 5000 et seq.). Joanne contends the trial court provided
her an inadequate jury trial waiver advisement and improperly
induced her to waive her right to a jury trial by stating she could
either have a court trial that day or a jury trial nine months
later. Although we are concerned by the delay in providing
conservatees jury trials during the COVID-19 pandemic, we
conclude there was no violation of Joanne’s statutory right to a
jury trial.
However, we caution the superior court that a nine-month
delay for a conservatee to have a jury trial where the
conservatorship would otherwise end in a year, absent a health
emergency, raises serious constitutional concerns in light of the
significant liberty interests at stake. A conservatee’s right to a
jury trial has little meaning if the conservatee can only exercise
that right after spending nine months of a one-year term in a
custodial setting. Indeed, in this case, because the pretrial
hearing was delayed due to the pandemic, the jury trial would
have taken place just one month before the conservatorship was
scheduled to expire. This delay strays far from the statutory
requirement in section 5350, subdivision (d)(2), that a “[c]ourt or
jury trial shall commence within 10 days of the date of the
demand,” unless the attorney for the proposed conservatee
requests up to a 15-day continuance.
As we stated in Conservatorship of Jose B. (2020)
50 Cal.App.5th 963, 967, “We are deeply troubled by the
1 Further undesignated statutory references are to the
Welfare and Institutions Code.
2
significant delay of over four months in holding a trial on [the]
petition, especially given the lack of any justification by the court
for most of the delay. [The conservatee] contends trials on
conservatorship petitions are routinely continued by the trial
courts in violation of the 10-day requirement.” At oral argument
in this case, counsel stated that even pre-pandemic, jury trials
were consistently delayed well beyond the four-month period at
issue in Jose B. We urge the superior court to dedicate the
necessary additional resources to LPS jury trials so that
conservatees may exercise their right to a jury trial in a timely
manner. Failure to do so likely violates a conservatee’s
constitutional right to due process.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Conservatorship
On November 9, 2018 the trial court found Joanne was
unable to provide for her personal needs as a result of mental
illness, she needed intensive psychiatric treatment, and she was
on a 30-day hold under section 5270.15 based on a finding she
was gravely disabled. The court appointed the Los Angeles
County Office of the Public Guardian as the temporary
conservator of Joanne’s person. On December 12, 2018 the court
found Joanne was gravely disabled and appointed Richard
Stusser2 as the conservator of Joanne’s person. On December 11,
2 Stusser is a private conservator who agreed to serve as
Joanne’s conservator at her family’s request.
3
2019 the trial court granted Stusser’s petition to be reappointed
as Joanne’s conservator, with the order terminating on
December 12, 2020.
B. Stusser’s Petition for Reappointment as Conservator of
Joanne’s Person
On November 25, 2020 Stusser filed a petition for
reappointment as Joanne’s conservator. On December 9 Stusser
filed a declaration from Joanne’s treating psychiatrist, Dr. Dirk
de Brito, who evaluated Joanne the prior day. Dr. de Brito stated
Joanne was diagnosed with disordered schizophrenia and
continued to have severe delusions, including that she was
gainfully employed. Joanne was unable to provide for her food,
clothing, or shelter, but she “refuses any idea that she needs
help.” However, Joanne was currently taking prescribed
medication in her residential care facility.
At a December 10, 2020 hearing, which Joanne attended by
telephone, her attorney contested the conservatorship. Joanne’s
attorney requested the appointment of Dr. Alete Arom to assess
Joanne’s capacity and whether Joanne had a grave disability. In
addition, Joanne’s attorney requested a “court trial in late
January on a Thursday if possible.” The trial court appointed
Dr. Arom “to report on grave disability and capacity to waive jury
trial.” The court set a court trial for February 4, 2021, with the
trial to be conducted by videoconference. The court found “good
cause for the continuance based on the pandemic” and its effect
on the court’s calendar.
4
At the February 4, 2021 videoconference hearing, with
Joanne on the telephone,3 the trial court informed Joanne, “[I]f
you do not want to agree to have your conservator appointed for
another year then you have a right to a trial. And there are two
kinds of trials that you can have. One kind of trial is called a
court trial. And with the court trial the judge hears the evidence
and then the judge decides if the evidence proves beyond a
reasonable doubt that you are gravely disabled. And, if the court
makes that decision, then the conservatorship will continue for
another year. [¶] The other kind of trial that you can have is a
jury trial. With a jury trial 12 people from the community come
to court and those 12 people are the jury. And a jury trial would
involve those 12 people, the jury, hearing the evidence and then
making a decision about whether the evidence proves beyond a
reasonable doubt that you are gravely disabled. And the jury
would have to decide that you’re gravely disabled unanimously,
which means that all 12 jurors would have to agree. [¶] So if you
would like to have a court trial with the judge making the
decision we can do that today. If you would like to have a jury
trial then we can do that as well, but we won’t be able to do it
today. We can reschedule and do that in November. [¶] Do you
know which kind of trial you’d like to have?” Joanne answered,
“Well, I would prefer a jury trial, but I don’t want to wait until
November. I want to do it as soon as possible.”
The court then stated, “Okay. Well, then, you will need to
make a decision about whether you want to have the court trial
with the judge today or whether—.” Joanne interrupted and
3 Joanne attended the hearing by telephone because she had
difficulty appearing by videoconference.
5
inquired, “If I win, that’s fine. If I lose, when can I contest it
again?” The court replied, “Well, you’d have to discuss that with
your lawyer.” Joanne said, “Okay. I think that I want to go
ahead today and do it.” The court inquired, “Now, do you
understand that if you have the court trial today with the judge
you will not be able to have a jury trial for another year? [¶] Do
you understand that?” Joanne answered, “Yeah.”
C. The Court Trial and Reappointment of the Conservator
The court trial proceeded immediately after Joanne waived
her right to a jury trial. Stusser called Dr. de Brito, who opined
Joanne was gravely disabled. Joanne suffered from disorganized
schizophrenia and had “very limited insight into her condition.”
Further, she had delusions and could not formulate a specific
plan for self-care, including for food, clothing, and shelter. Dr. de
Brito stated further that if the conservatorship terminated,
Joanne would not take her prescribed medication.
Joanne acknowledged in her testimony that she suffered
from schizophrenia. She stated that if she were released from the
conservatorship, she would continue to take her medication and
meet regularly with a psychiatrist. She asserted she could take
care of herself, including changing her own clothing, and she
could manage her own money. But she admitted her brother,
Thomas Wolfe, was the conservator of her estate. Joanne claimed
she had monthly income of at least $5,000 from her estate,
including from her teacher’s pension, and another $5,000 per
month from employment as a radio announcer at NBC Radio and
Television Worldwide.
Joanne testified that at the time of the hearing, she was
living in a senior residence facility that provided meals,
6
caregivers, and laundry services. Joanne had four options for
where to live prospectively. NBC had offered her housing, meals,
and a car and driver. Joanne’s cousin also had arranged for a
home, and she invited Joanne to live in a room Joanne would
share with a caregiver who would provide Joanne with meals and
maid service. Joanne would not need a car, but she still had a
license in good standing.
Wolfe testified for Stusser as a rebuttal witness. Wolfe had
been appointed by the Orange County Superior Court as the
conservator of Joanne’s estate. He stated Joanne received
interest from certificates of deposit but “the only other income
would be approximately $1,047 from [Joanne’s] teacher’s
pension.” Joanne interjected, “I thought that I had more of an
income so I didn’t mean to mislead the court in any way.” The
court did not inquire further as to Joanne’s available funds.
Wolfe opined Joanne did not have the ability to manage her funds
to meet her basic needs.
Following arguments from counsel, the trial court found
Stusser had carried his burden of proving beyond a reasonable
doubt that Joanne had a grave disability. The court granted
Stusser’s petition for reappointment as the conservator of
Joanne’s person and found “the least restrictive placement is in
an assisted-living facility.”
Joanne timely appealed.
DISCUSSION
A. The LPS Act
“The LPS Act governs the involuntary detention,
evaluation, and treatment of persons who, as a result of mental
7
disorder, are dangerous or gravely disabled. (§ 5150 et seq.) The
Act authorizes the superior court to appoint a conservator of the
person for one who is determined to be gravely disabled (§ 5350
et seq.), so that he or she may receive individualized treatment,
supervision, and placement (§ 5350.1).” (Conservatorship of
John L. (2010) 48 Cal.4th 131, 142; accord, Conservatorship of
Jose B., supra, 50 Cal.App.5th at pp. 969-970.) “As defined by the
Act, a person is ‘gravely disabled’ if, as a result of a mental
disorder, the person ‘is unable to provide for his or her basic
personal needs for food, clothing, or shelter.’ (§ 5008, subd.
(h)(1)(A).)” (John L., at p. 142; accord, Jose B., at p. 970.) An
LPS conservatorship automatically terminates after one year,
and the conservator may seek reappointment by filing a petition.
(§ 5361.) A proposed conservatee has a right to a jury trial upon
demand at the establishment and annual renewal of a
conservatorship. (Conservatorship of Ben C. (2007) 40 Cal.4th
529, 541-542; Jose B., at p. 970; see § 5350, subd. (d).)
B. Jury Trial Waivers Under the LPS Act
“LPS commitment proceedings require the court to obtain a
personal waiver of the right to a jury trial from the proposed
conservatee.” (Conservatorship of Heather W. (2016)
245 Cal.App.4th 378, 383; see Prob. Code, § 1828, subd. (a)(6).)4
Generally, with respect to civil commitments, the failure of a
court to obtain a valid jury trial waiver where required by statute
4 Probate Code section 1828, subdivision (a)(6), which is
incorporated into the LPS Act by Welfare and Institutions Code
section 5350, requires the trial court to inform the proposed
conservatee of his or her right to a jury trial.
8
“denies the defendant his or her statutory right to a jury trial,”
and is a “‘miscarriage of justice’ within the meaning of article VI,
section 13 [of the California Constitution] [that] requires reversal
without inquiry into the strength of the evidence in a particular
case.” (People v. Blackburn (2015) 61 Cal.4th 1113, 1132-1133
[failure to obtain valid jury trial waiver from mentally disordered
offender in civil commitment proceeding was reversible error];
accord, People v. Tran (2015) 61 Cal.4th 1160, 1169 [trial court’s
acceptance of invalid jury trial waiver in commitment proceeding
for defendant who pleaded not guilty by reason of insanity “is not
susceptible to ordinary harmless error analysis and automatically
requires reversal”]; see Heather W., at pp. 384-385 [trial court’s
failure to advise LPS conservatee of her right to a jury trial was
reversible error]; Conservatorship of Kevin A. (2015)
240 Cal.App.4th 1241, 1253 [reversing conservatorship order
where trial court erred in accepting counsel’s waiver of LPS
conservatee’s right to jury trial over conservatee’s objection]; but
see Conservatorship of C.O. (2021) 71 Cal.App.5th 894, 917-919
[trial court’s failure to personally advise proposed conservatee of
right to a jury trial was statutory error, but error was harmless;
and court’s acceptance of counsel’s waiver of jury trial right did
not violate proposed conservatee’s rights].)
Stusser acknowledges that the case law governing criminal
proceedings provides guidance for LPS civil commitment
proceedings. In a criminal proceeding, “‘a defendant’s waiver of
the right to jury trial may not be accepted by the court unless it is
knowing and intelligent, that is, “‘“made with a full awareness
both of the nature of the right being abandoned and the
consequences of the decision to abandon it,”’” as well as voluntary
“‘“in the sense that it was the product of a free and deliberate
9
choice rather than intimidation, coercion, or deception.”’”’”
(People v. Sivongxxay (2017) 3 Cal.5th 151, 166 (Sivongxxay);
accord, People v. Cunningham (2015) 61 Cal.4th 609, 636-637.)5
“‘[W]hether or not there is an intelligent, competent, self-
protecting waiver of jury trial by an accused must depend upon
the unique circumstances of each case.’” (Sivongxxay, supra,
3 Cal.5th at p. 166.) In determining whether a defendant has
provided a knowing and intelligent waiver, we “examine the
totality of the circumstances.” (Id. at p. 167.) The Supreme
Court in Sivongxxay provided “general guidance to help ensure
that a defendant’s jury trial waiver is knowing and intelligent,
and to facilitate the resolution of a challenge to a jury waiver on
appeal.” (Id. at p. 169.) Although the guidance was “not
intended to limit trial courts to a narrow or rigid colloquy” (id. at
p. 170), the Supreme Court explained, “Going forward, we
recommend that trial courts advise a defendant of the basic
mechanics of a jury trial in a waiver colloquy, including but not
necessarily limited to the facts that (1) a jury is made up of
12 members of the community; (2) a defendant through his or her
counsel may participate in jury selection; (3) all 12 jurors must
unanimously agree in order to render a verdict; and (4) if a
defendant waives the right to a jury trial, a judge alone will
decide his or her guilt or innocence . . . . Ultimately, a court must
consider the defendant’s individual circumstances and exercise
judgment in deciding how best to ensure that a particular
5 Because the parties agree the jury trial waiver standard in
Sivongxxay applies here, we assume, but do not decide, that the
standards for jury trial waivers applicable in criminal
proceedings apply to LPS proceedings.
10
defendant who purports to waive a jury trial does so knowingly
and intelligently.” (Id. at pp. 169-170.)
In Sivongxxay, the Supreme Court concluded the
defendant’s waiver of his right to a jury trial was knowing and
intelligent where the trial court had advised him “that he had a
right to a jury trial, that a jury consists of 12 people from the
community, that he would have the right to participate in the
selection of the jury, and that waiver of the right to a jury would
mean the judge alone would determine his guilt or innocence and
any resulting punishment.” (Sivongxxay, supra, 3 Cal.5th at
p. 167.) The court rejected the defendant’s argument that the
jury waiver was deficient because the trial court failed to advise
him that the jury must be impartial and render a unanimous
verdict, explaining, “‘[T]he United States Supreme Court has
never held that a defendant, when waiving the right to a jury,
constitutionally is entitled to be canvassed by the trial court, let
alone to require a specifically formulated canvass’ [citations], and
we have never insisted that a jury waiver colloquy invariably
must discuss juror impartiality, the unanimity requirement, or
both for an ensuing waiver to be knowing and intelligent.” (Id. at
p. 168, fn. omitted; accord, People v. Daniels (2017) 3 Cal.5th 961,
992-993 (lead opn. of Cuéllar, J.) [“We continue to eschew any
rigid rubric for trial courts to follow in order to decide whether to
accept a defendant’s relinquishment of this right.”]; id. at p. 1018
(conc. & dis. opn. of Corrigan, J.) [“We have consistently
eschewed any rigid formula or particular form of words that a
trial court must use to ensure that a jury trial waiver is knowing
and intelligent.”].)
11
C. The Trial Court’s Jury Trial Advisement Was Not Deficient
Under the Totality of the Circumstances
Joanne contends the trial court’s jury waiver advisement
was inadequate because the court did not inform her that she
could participate in jury selection through her attorney. But as
the Supreme Court held in People v. Weaver (2012) 53 Cal.4th
1056, 1072-1074, the lack of an advisement that a defendant has
the right to participate in jury selection does not automatically
render a jury trial advisement invalid. Joanne argues Weaver is
no longer good law in light of the Supreme Court’s later decision
in Sivongxxay. To the contrary, the Sivongxxay court cited
Weaver with approval in holding that in reviewing the totality of
the circumstances, the absence of a specific advisement “is not
necessarily determinative of whether a waiver meets
constitutional standards.” (Sivongxxay, supra, 3 Cal.5th at
p. 168.)
The trial court advised Joanne that a jury is comprised of
12 people from the community; the jury would hear the evidence
and then decide whether the evidence proves beyond a reasonable
doubt she is gravely disabled; and the jury would need to make a
unanimous decision, meaning that all 12 jurors would need to
agree. The court contrasted this with a court trial in which the
judge would hear the evidence and make the decision whether
the evidence proves beyond a reasonable doubt she is gravely
disabled. The court’s failure to advise that Joanne, through her
counsel, had the right to participate in jury selection did not
invalidate her jury waiver given the other advisements that
informed Joanne of “the essence of the jury trial right.” (People v.
Daniels, supra, 3 Cal.5th at p. 1019 (conc. & dis. opn. of Corrigan,
12
J.).) Under the totality of the circumstances, Joanne’s jury trial
waiver was knowing and intelligent.
D. Joanne’s Jury Trial Waiver Was Voluntary
Joanne contends the trial court improperly induced her to
waive her right to a jury trial by advising her that she could have
an immediate court trial or wait until November (nine months
later) for a jury trial. Although we are troubled by the delay in
the availability of a jury trial, there was no improper
inducement.6
Joanne likens her case to People v. Collins (2001)
26 Cal.4th 297, 312 (Collins), in which the Supreme Court
concluded the trial court improperly induced the defendant to
waive his right to a jury trial, rendering his jury trial waiver
involuntary. There, the trial court told the defendant “‘there
might well be a benefit’” to the defendant from waiving his right
to a jury trial because “‘[j]ust by having waived jury, that has
some effect on the court . . . [b]y not taking up two weeks’ time to
try the case.’” (Id. at p. 302, italics omitted.) The trial court
added, “‘I’m not specifying that there’s any particular benefit, but
that by waiving jury, you are getting some benefit, but I can’t tell
you what that is because I don’t know yet.’” (Ibid., italics
6 Joanne does not argue in her briefing on appeal that the
delay in providing a jury trial violated her due process right to a
timely trial. Her attorney belatedly raised a due process concern
at oral argument, but we did not request supplemental briefing
given that the delay was caused by the COVID-19 pandemic and
the appellate record does not include information on pre-
pandemic delays.
13
omitted.) The Supreme Court found the trial court’s offer of a
reward to the defendant for refraining from exercising his
constitutional right to a jury trial was improper because it
“presented a ‘substantial danger of unintentional coercion,’”
thereby violating his right to due process. (Id. at p. 309.)
Unlike Collins, the trial court did not offer to reward
Joanne for waiving her right to a jury trial, instead simply
advising her of the reality of when she could have a court or jury
trial. After advising Joanne that she could have a court trial that
day but a jury trial could not be scheduled until November, the
court inquired, “Do you know which kind of trial you’d like to
have?” Joanne answered that she preferred to have a jury trial,
but she did not want to wait until November, emphasizing, “I
want to do it as soon as possible.” The court again reminded
Joanne that she needed to decide which type of trial she wanted,
and when Joanne interjected to ask when she could challenge her
commitment again, the court urged her to talk with her lawyer.
At this point, Joanne confirmed she wanted to proceed with a
court trial that day. At no time did the trial court suggest Joanne
would be rewarded if she elected to waive a jury trial—to the
contrary, the court encouraged her to talk to her lawyer before
making a decision. (See United States v. Leja (1st Cir. 2006)
448 F.3d 86, 95 [district court did not coerce defendant to waive
his right to a jury trial even though the court indicated “a jury
might have difficulty with the complexity of the case,” where the
court also stated “‘I’m not pushing anybody’”].)7
7 Joanne also argues the record does not contain an adequate
explanation for why she could not receive a jury trial until
November 2021. But in setting the February 4, 2021 trial date,
14
Under the circumstances, the trial court’s statement that
Joanne could receive a court trial that day or wait nine months
for a jury trial provided Joanne with complete information to
enable her to make a knowing, intelligent, and voluntary decision
whether to waive her right to a jury trial. The fact she elected to
proceed expeditiously with a court trial did not make her decision
involuntary.
DISPOSITION
The order is affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
the trial court found “good cause for the continuance based on the
pandemic” and its effect on the court’s calendar.
15