Conservatorship of L.B. CA1/1

Filed 8/20/21 Conservatorship of L.B. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
Conservatorship of the Person of
L.B.
PUBLIC GUARDIAN OF CONTRA A160462
COSTA COUNTY,
(Contra Costa County
Plaintiff and Respondent, Super. Ct. No. MSP19-00671)
v.
L.B.,
Defendant and Appellant.
INTRODUCTION
In this conservatorship appeal, L.B. challenges the trial court’s June
2020 order denying his motion to compel immediate placement in a treatment
facility. The Contra Costa Public Guardian (Public Guardian) was appointed
as L.B.’s conservator in June 2019, at which time the trial court designated
the most appropriate placement for him. However, despite significant efforts
by the Public Guardian to facilitate L.B.’s transfer to an appropriate facility,
he remained in the county jail for over a year. While this extended delay in
placement is certainly not optimal, L.B.’s conservatorship was terminated in
August 2020. We therefore dismiss this appeal as moot for the reasons
discussed below.
1
BACKGROUND
L.B. was charged with an October 2015 assault with intent to commit
rape (Pen. Code, § 220, subd. (b)) and was found incompetent to stand trial by
two evaluators under Penal Code section 1370. He was sent to Napa State
Hospital (NSH) for competency restoration from June 2016 to January 2017,
after which it was determined that his symptoms had been well-controlled by
treatment and he had been restored to competency. Upon his return to the
jail, however, defense counsel again declared a doubt as to L.B.’s competency
and the evaluating professionals agreed. L.B. was returned to NSH for
competency restoration from December 2017 to February 2018.
While at NSH, L.B. was diagnosed with schizoaffective disorder,
bipolar type; antisocial behavior disorder; and pervasive development
disorder due to his limited intellectual abilities. L.B. also had a number of
substance use disorders involving amphetamines, cannabis, cocaine, alcohol,
and opioids, which were in remission during his hospitalization. Although
L.B. was again deemed restored to competency, his defense attorney
continued to struggle to work with him. The trial court ultimately concluded
that there was no substantial likelihood that L.B. would regain competence
in the foreseeable future and a February 2019 order was issued to initiate a
Murphy conservatorship proceedings for him.1
1In 1974, the conservatorship provisions of the Lanterman-Petris-
Short (LPS) Act (Welf. & Inst. Code, § 5000 et seq.) were amended to provide
an alternate definition of “ ‘gravely disabled’ to include persons who have
been found mentally incompetent and are charged with certain felonies,
2
On May 10, 2019, the Public Guardian filed a petition seeking
appointment as conservator of the person of L.B. pursuant to the Murphy
conservatorship provisions of the LPS Act. (Welf. & Inst. Code,2 § 5008, subd.
(h)(1)(B); Conservatorship of Hofferber (1980) 28 Cal.3d 161, 176-177.) The
petition alleged that L.B. was gravely disabled in that (1) a complaint,
indictment, or information was pending against him which charged “a felony
involving death, great bodily harm, or a serious threat to the physical well-
being of another person”; (2) the charging document had not been dismissed
after a finding of probable cause, a preliminary hearing, or a grand jury
indictment; (3) as a result of a mental disorder, L.B. was unable to
understand the nature and purpose of the proceedings against him and was
unable to assist counsel in the conduct of his defense in a rational manner;
and (4) L.B. represented a substantial danger of physical harm to others by
reason of a mental disease, defect, or disorder. In accordance with section
5354, a comprehensive conservatorship investigation report was attached to
the petition. In addition to appointment as L.B.’s conservator, the Public
Guardian requested that the court impose two disabilities: a firearms/deadly
weapon prohibition and an order that L.B. be denied the right to refuse
treatment related to being gravely disabled, including psychotropic
medications.
At a hearing on June 11, 2019, L.B. accepted the Murphy
conservatorship and the trial court granted the petition. Specifically, the
trial court found beyond a reasonable doubt that L.B. was gravely disabled as
defined in section 5008, subdivision (h)(1)(B) and determined by clear and
thereby creating the ‘ “Murphy” conservatorship’ named after the legislator
who sponsored the bill.” (In re Taitano (2017) 13 Cal.App.5th 233, 242.)
2All statutory references are to the Welfare and Institutions Code
unless otherwise specified.
3
convincing evidence that imposition of the two requested special disabilities
was warranted. The court additionally found that, pursuant to section 5358,
subdivision (c)(2), “first priority shall be placement in a facility that achieves
the purposes of treatment of the conservatee and protection of the public” and
concluded that the most appropriate placement for L.B. was NSH. Letters of
Conservatorship were issued on July 5, 2019.
In August 2019, L.B.’s attorney filed a petition seeking the least
restrictive placement for L.B. The court ordered evaluations of L.B. by the
Public Guardian and California Psychiatric Transitions (CPT). After several
continuances, the parties agreed to vacate the placement hearing and to
modify L.B.’s placement to the level of a mental health rehabilitation center
(MHRC)/institution for mental disease (IMD) if feasible, and if not, then a
State Hospital. L.B. had been interviewed but was not accepted to CPT.
At a placement status review hearing on November 5, 2019, L.B.’s
attorney advised the court that he was still requesting alternate placement.
At the continued hearing on November 19, L.B. was awaiting transport to
NSH, and his attorney requested that the matter be continued to December
10, 2019. As of December 10, however, L.B. was still waiting for placement,
and a further continuance was granted to February 4, 2020. On February 4,
L.B. remained in the jail and was reportedly number 84 on the waitlist for
NSH. The matter was set for a court placement trial on March 24, 2020.
The March 24 hearing was continued to April 28, 2020, due to the court
closure related to the COVID-19 pandemic. The parties then stipulated to a
June 16 continuance, which was extended to June 23 so that L.B. could be
transported to court. In the meantime, the Public Guardian had petitioned
for reappointment as L.B.’s Murphy conservator on May 22, 2020, and the
reappointment hearing was also continued to June 23. Prior to the June 23
4
hearing, L.B.’s attorney filed a motion to compel placement, requesting that
the court order immediate placement of L.B. in any mental health treatment
facility authorized by section 5358, subdivision (c)(2). According to the
motion, failure to place L.B. violated both the LPS Act and L.B.’s
constitutional rights to due process and equal protection.
At the hearing on June 23, 2020, L.B. objected to reappointment of the
conservator and requested a jury trial, which was set for July 7.3 With
respect to the placement issue, L.B.’s attorney clarified that he was merely
seeking to compel placement pursuant to the court’s prior order. He argued
that placement was mandated pursuant to the LPS Act and that making
reasonable efforts was insufficient. He asked that the court order immediate
placement in “some form of treatment facility,” even if it was not “what the
court feels is ideal.” According to counsel for the Public Guardian, L.B. was
currently number 61 on the NSH waitlist and the Public Guardian had been
making diligent efforts to place him. The Public Guardian was limited to
applying to those private MHRCs/IMDs that contract with the county, a
number of which were not taking Murphy conservatees or had no open beds.
Recently, Crestwood in Vallejo had stated it would take a referral but there
were no guarantees that L.B. would be accepted. And the Public Guardian
could not control NSH’s admission process, which was based on psychiatric
acuity.
The court agreed that treatment was a goal of the LPS Act, but also
noted that protection of the public was equally important in a Murphy
conservatorship. It concluded it did not have the power to do anything except
order the Public Guardian to apply to all of the MHRCs/IMDs that were
3This trial date was subsequently continued several times to August
18, 2020.
5
currently under contract. The court additionally ordered the Public Guardian
to determine if an individual could have more than one state hospital
application pending at a time. L.B. filed a timely notice of appeal from the
court’s order.
While this appeal was pending, the Public Guardian filed a request for
judicial notice, motion to dismiss, and motion to take additional evidence on
February 22, 2021. Specifically, the Public Guardian asked that we take
judicial notice of, and additional evidence with respect to, an August 18, 2020
order dismissing L.B’s conservatorship based on his restoration to
competence, arguing that this subsequent order rendered the current appeal
moot. By order dated March 16, 2021, we granted the Public Guardian’s
unopposed request that we take judicial notice of the August 2020 dismissal
order, denied the motion to take additional evidence as unnecessary, and
deferred ruling on the motion to dismiss for consideration with the merits of
the appeal. (Evid. Code, §§ 452, subd. (c)&(d), 459, subd. (a).) The parties
have since completed their briefing, and the matter is now before us for
decision.
DISCUSSION
As a general rule, it is the duty of an appellate court “ ‘ “to decide actual
controversies by a judgment which can be carried into effect, and not to give
opinions upon moot questions or abstract propositions, or to declare
principles or rules of law which cannot affect the matter in issue in the case
before it.” ’ ” (Eye Dog Foundation v. State Board of Guide Dogs for the Blind
(1967) 67 Cal.2d 536, 541.) “A case is considered moot when ‘the question
addressed was at one time a live issue in the case,’ but has been deprived of
life ‘because of events occurring after the judicial process was initiated.’ ”
(Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th
61559, 1574.) “The pivotal question in determining if a case is moot is
therefore whether the court can grant the plaintiff any effectual relief.”
(Ibid.)
However, “the general rule regarding mootness ‘is tempered by the
court’s discretionary authority to decide moot issues.’ ” (People v. Pipkin
(2018) 27 Cal.App.5th 1146, 1150.) In particular, “if a pending case poses an
issue of broad public interest that is likely to recur, the court may exercise an
inherent discretion to resolve that issue even though an event occurring
during its pendency would normally render the matter moot.” (In re William
M. (1970) 3 Cal.3d 16, 23; see also In re David B. (2017) 12 Cal.App.5th 633,
654 [retaining a moot appeal may be appropriate where resolving the issue
on the merits “will have some precedential consequence in future litigation
generally”].) Appellate courts often reach the merits of moot issues in the
conservatorship context because such issues might otherwise evade review.
(See, e.g., In re Loveton (2016) 244 Cal.App.4th 1025, 1035; K.G. v. Meredith
(2012) 204 Cal.App.4th 164, 165; Conservatorship of David L. (2008) 164
Cal.App.4th 701, 709.)
Here, L.B. concedes that this case, which challenges the trial court’s
June 2020 order refusing to compel placement, is moot given that the trial
court dismissed L.B.’s conservatorship in August 2020 based on his return to
competency. He argues that we should nevertheless exercise our discretion to
address his appeal because it raises issues of general public interest that are
likely to evade review. On the merits, he argues that failure to transfer him
to a designated placement violated the relevant placement statutes in the
LPS Act, the legislative intent behind the creation of a Murphy
conservatorship, and his due process rights. He requests a holding from this
court that a Murphy conservatee must be transferred to the court’s
7
designated placement within “a reasonable time” after the conservatorship is
established.
Given the record before us, we decline to exercise our discretion to
reach the merits of this appeal. We note that the relief L.B. now seeks—a
broadly applicable declaration that all Murphy conservatees are entitled to
placement within a “reasonable time”—was not raised in the trial court and
we are thus without the benefit of the trial court’s analysis of the issue.
Moreover, we have not been provided with any evidence regarding how
widespread or serious this problem may be and cannot determine on this
record how a “reasonableness” directive might operate. It is also unclear the
extent to which L.B.’s delay in placement was affected by the pandemic,
making it difficult to generalize about the need for such relief outside of these
unique circumstances. Finally, we are not convinced by the briefing provided
that such a rule is either required or wise, especially given the serious public
safety concerns underlying the creation of a Murphy conservatorship. In
short, we decline to address an issue with such potentially far-reaching
consequences in this case.
DISPOSITION
The appeal is dismissed as moot.
8
SANCHEZ, J.
We concur.
HUMES, P.J.
MARGULIES, J.
(A160462)
9