Opinion
A130166
10-25-2011
Conservatorship of the Person of C.B. WILLIAM WALKER, M.D., as Conservator, HEALTH SERVICES DEPARTMENT, CONTRA COSTA COUNTY, Petitioner and Respondent, v. C.B., Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. P1000242)
C.B., the conservatee below, seeks reversal of the Contra Costa County Superior Court's "judgment," that being the court's order that she be subject to the appointment of a mental health conservator with authority to place her without her consent for psychiatric treatment. The court's order followed a jury's finding that appellant, 59 years old at the time, was beyond a reasonable doubt "gravely disabled" because of a mental disorder so that she could not provide for her basic needs of food, clothing, or shelter, a finding made pursuant to Welfare and Institutions Code section 5350, part of the Lanterman-Petris-Short (LPS) Act, section 5000, et seq. Appellant argues the jury's finding, and the court's further imposition of certain special disabilities, were not supported by substantial evidence, and that the court committed reversible error when it denied her the right to represent herself in the proceedings. We affirm, except that we strike a clerical error from the court's written order appointing a conservator.
All statutory references herein are to the Welfare and Institutions Code unless otherwise stated.
BACKGROUND
On March 1, 2010, the Contra Costa County Health Services Department (Department) filed a petition for appointment of a conservator and/or temporary conservator pursuant to the LPS Act. The Department alleged appellant was gravely disabled due to a mental disorder or chronic alcoholism, was unwilling, or unable, to accept treatment voluntarily, and was unable to manage her finances. The Department sought the appointment of a temporary conservator pending final determination regarding the petition, and a conservator for a one-year period. Psychiatrist Peter Tamulevich of the John Muir Behavioral Health Center stated in an accompanying declaration, executed on February 18, 2010, in support of appointment of a temporary conservator, that appellant, who was under his care, was "gravely disabled" regarding her ability to provide food, clothing, and shelter, and to manage funds. He stated that appellant had been evicted for trashing her apartment and refusing to allow the manager to inspect it, had been off medications for two years, and presented as "dirty, disheveled [and] malodorous due to refusal to bathe and/or change clothes. [Appellant] refuses to take medication . . . [and] is getting medication by injection. [Appellant] needs prompting to eat." Also, he stated that appellant refused to believe that she had been evicted and was homeless, talked to herself, was grandiose, was easily agitated and was often verbally abusive. Tamulevich diagnosed her as suffering from paranoid schizophrenia. A temporary conservator was appointed the same day the petition was filed.
Subsequently, appellant made motions or requests for representation by other counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden),and to represent herself, including pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta), all of which were denied.
Jury trial commenced on September 28, 2010, and testimony was heard from Dr. Richard Baldwin, a psychiatrist testifying as an expert regarding appellant's mental condition, appellant, and Cheyenne Shelton, the manager of the apartment from which appellant was evicted.
The jury returned the following day, September 29, 2010, with a unanimous verdict that appellant was gravely disabled due to a mental disorder. Upon discharge of the jury, the parties submitted the matter for decision without introduction of any further evidence. The court accepted and adopted the recommendation by the Department that appellant be placed in a locked facility, and appointed the Department as conservator. The court ordered counsel for the Department to prepare a formal order.
Appellant filed a notice of appeal on October 27, 2010, challenging the court's appointment of a conservator on September 29, 2010. Following the filing of this notice, on November 1, 2010, the court filed an order appointing conservator of the person of appellant.
To the extent appellant's appeal implicates the final, formal order, the Department does not raise any issue regarding the sequences of these filings and, therefore, we do not consider the matter further. In any event, we have the authority to liberally construe notices of appeal in such a circumstance so as to consider a subsequently issued final, formal judgment. (Cal. Rules of Court, rules 8.100(a)(2), 8.104(e).)
DISCUSSION
I. The Jury's Finding of Grave Disability
Appellant first argues that there was not substantial evidence to support the jury's finding pursuant to section 5008, subdivision (h), that appellant was "gravely disabled" because, as the result of a mental disorder, she was unable to provide for her basic personal needs for food, clothing, or shelter. We disagree.
We review a finding of grave disability using the "substantial evidence standard to determine whether the record supports [it]. . . ." (Conservatorship of Carol K. (2010) 188 Cal.App.4th 123, 134 (Carol K.).) The court "review[s] the record as a whole in the light most favorable to the trial court judgment to determine whether it discloses substantial evidence. Substantial evidence, which is evidence that is reasonable, credible, and of solid value, also includes circumstantial evidence." (Ibid.)The testimony of a single witness may be sufficient to justify a finding of grave disability. (Ibid.; Conservatorship of Johnson (1991) 235 Cal.App.3d 693, 697 (Johnson).)Accordingly, we summarize the testimony that provided substantial evidence in support of the jury's finding. A. Relevant Testimony
1. Dr. Baldwin's Testimony
Dr. Richard Baldwin, a practicing psychiatrist for 35 years, testified as an expert in the psychiatric assessment of grave disability. In the course of Baldwin's testimony, the court instructed the jury that his testimony about reports and statements from hospital staff and other people who had come in contact with appellant were admitted for the limited purpose of establishing the basis for Baldwin's opinion, and not as independent proof of appellant's mental condition or her ability to provide food, clothing, and shelter.
Baldwin testified that he approached appellant on three occasions to try to talk with her, but she was "very resistive," and said the proceeding was illegal and the copy of the subpoena Baldwin showed her was counterfeit. When Baldwin told her he was a neutral expert witness who would testify in court under oath, she became more agitated and left. She returned, asked for his credentials and, when showed them, said they were illegal and continued to assert the proceeding was illegal. She said she would sue him, the temporary conservator, her attorney, and the judge.
Baldwin also testified that he reviewed "some good records covering the last eight years" regarding appellant's psychiatric history. He also interviewed her treating physician, her social worker, her two case managers, and her temporary conservator.
Based on his work, Baldwin reached an opinion regarding appellant's mental health diagnosis. He stated that her problems when she was acutely ill and chronically ill were "very consistent with schizophrenic disorder, particularly of a paranoid type." Asked to explain this disorder, he said that it involved "a very basic deficit in thinking and organizing thought . . . . [I]t prevents them from realizing and adequately judging reality around them." Paranoid schizophrenia results in people thinking things, such as voices or ideas, are affecting them from the outside, or even penetrating them, so as to put them in danger or under threat.
Baldwin further testified that appellant was presently placed at Crestwood Stevenson, a long-term locked psychiatric facility. Her last episode "had a theme of gas and toxins penetrating her body and causing her problems and really making her very anxious and on edge." Appellant also had talked about the Internet, CIA, FBI, and local police being against her and wanting to hurt her. While in the past she experienced voices threatening her, she now had fixed beliefs that amounted to delusions. They were so severe that she could not be reassured or reeducated about them, and were preventing her from "essentially really engaging in reality."
Baldwin said that paranoid schizophrenia could be treated with medication, although in the most severe cases the medicine would have a limited effect, requiring institutional commitment. When appellant was first hospitalized in March 2010, "she was in a difficult state, talking to herself, totally preoccupied, unable to really engage in any reasonable conversation at any level." While she subsequently had reached a point where she was accepting food and medication, she was continually saying that she did not need medication and that there was nothing wrong with her, that the procedure of providing treatment to her was illegal, and that she did not want treatment. He described appellant as a "very determined woman" and did not think she would take her medication if she were released.
Baldwin further testified that his diagnosis of paranoid schizophrenia was consistent with the medical records he examined. He indicated that appellant previously had been acutely ill in 2002 and 2006, that her acute episodes were preceded by her not taking medication or seeking treatment, and that after going through months of treatment she had become "less acute" and improved to the point that she was discharged. He saw the "same pattern" in her present circumstance, in that "she was very acutely ill in the first part of this year, and with treatment, she has improved, and I fully expect her to continue to improve to the point where she will not need to be in phychiatric [sic] hospital, but clearly, the record of this pattern shows that she needs ongoing medication." If released, however, appellant had made it "very clear she will not take the medication, she will not seek treatment," and Baldwin thought it was "fairly certain that she will return to a very acutely psychotic state." Baldwin said appellant also told him she would return to her apartment, despite his showing her the notice of eviction. She claimed it was illegal, insisted the apartment was her place and said she was going back there. Baldwin opined that this indicated her difficulty in accepting reality, showing that her internal beliefs took precedence over everything. Appellant would not discuss with Baldwin how she would provide for her food and clothing.
Baldwin further stated that appellant, if not under conservatorship, would not seek voluntary treatment from medical professionals, whether for physical or mental ailments. He referred to a recent instance when she refused treatment for an abrasion on her lower leg because "[t]here's nothing wrong," and another earlier in the year when, after allowing preliminary examinations that did not show a heart attack or problem, she refused recommended treatment despite her report of an acute onset of chest pain and dizziness. Baldwin stated that these and other instances indicated appellant's judgment was being affected by her illness to the point that what she believed took precedence over reality, which "could potentially be very dangerous." Appellant also told Baldwin that she did not have a medical illness.
As a further example of appellant's reliance on her internal beliefs and refusal of medical treatment, Baldwin said that when she was first hospitalized earlier in the year, she believed that toxic fumes were coming up through the floor of her apartment and affecting her legs and ankles. Initial examinations indicated she had "some arthritic-type pain," after which she claimed x-rays had been switched and that her legs were fractured. Although she would not allow further examination, evaluation, or treatment, and a physical therapist observed nothing wrong with her walking, she began using a walker and then a wheelchair and claimed she had a serious problem with her legs. Medical staff were concerned that her reliance on the wheelchair would weaken her leg muscles and make it more difficult for her to get out of the wheelchair, but she refused to exercise or walk.
Baldwin further opined that appellant would not be able to successfully negotiate with people if she was looking for her own food, clothing, or shelter because she was "so vulnerable to things around her happening." Baldwin testified that appellant created an incident after a patient had come close to her while appellant was using a ward phone. He also stated that while she was now accepting meals, it was initially "very difficult" because she was "very suspicious" of food. He stated that when she was not treated she had a difficult time providing food to herself. She hoarded food, let it rot, and would not eat it. Appellant also had refused to bathe at all or to change her clothes, claiming that a cardiologist would not allow her to shower.
Baldwin concluded that in his professional opinion, "the evidence is pretty clear that at this point [appellant] is gravely disabled and will continue to be so for a period of time." He thought she was improving and could, in the near future, possibly be placed in an unlocked facility if she cooperated more and willingly took her medication.
2. Appellant's Testimony
In coming to the witness stand, appellant asserted that her broken leg was caused by a county bus driver. She also brought a law dictionary, copies of the Declaration of Independence and the Constitution, and "images of a free press," without objection. Her testimony included the following:
Again, we summarize only portions of appellant's testimony that provide substantial evidence for the jury's findings. Pursuant to our obligation under a substantial evidence standard of review, we highlight this evidence upon having reviewed the record as a whole in the light most favorable to the court judgment. (Carol K., supra, 188 Cal.App.4th at p. 134.)
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Appellant denied that she had been evicted from her apartment or screamed at other residents and said they were trying to kill her. She contended that her hospitalization was a crime because she was an inventor, and that was the motive for "5150ing" her. She said there had been tampering with the plumbing in her apartment sink in October 2009 in order to take possession of her inventions, and that John B. was attempting to orchestrate this. John B. was doing so to take possession of her things, and to eliminate a witness against him because he was the "Zodiac Killer." Later, she testified that it had taken her eight years to "finally figure out what has happened, and the motive is . . . taking my writing, and I'm a brilliant author and Bible scholar."
Appellant said she believed she was suffering from depression, and was being "forced to take medication." She had had heart attacks in March and April 2010. She contested that she had refused medical treatment, and said she had been denied her request for a second opinion from her cardiologist. She denied that she would not take a shower when she was rested, but indicated staff asked her when she was on the verge of a heart attack and having chest pains, and threatened to inject her with Haldol, which the staff used as a weapon.
Appellant also said the proposed conservator wanted to get her property, writing, and inventions. She also said someone at the conservator's office was "stalking her" at one point.
Appellant denied being evicted from her apartment, or that she had seen any documentation that she was evicted. She indicated that she would not necessarily return to her apartment if released, said she could rent another apartment. She indicated there were people she could call to find shelter but, when asked if she had a letter from one of them indicating she would provide shelter to her, appellant replied, "[g]osh, no. Don't be absurd."
3. Cheyenne Shelton
Cheyenne Shelton, the manager of appellant's former apartment residence, testified that appellant had been formally evicted in June 2010 for disturbing the peace and quiet enjoyment of other tenants, refusing inspections, and creating a safety issue by barricading her door. Appellant would leave her unit in the middle of the night, screaming and banging on people's doors. She would not be allowed back. Shelton said appellant's unit's sink had been overflowing, having been stuffed with trash and food articles. B. Analysis
Appellant first argues that Baldwin's conclusion that she was gravely disabled was not substantial evidence because it was not supported by adequate facts and reasoning. She argues that Baldwin's testimony about her delusions about the CIA, FBI, and the Zodiac Killer did not establish that she suffered from a mental disorder that made her unable to provide for her own food, clothing, and shelter. She characterizes the evidence as being "primarily of lack of shelter," and contends the evidence of her inability to provide for food or clothing was "scant and conclusory." According to appellant, "proof of inability to provide food and clothing requires more than an anecdote or two about refusing to change clothes or letting food rot" and conclusory statements about insufficient dangers. Furthermore, "merely being evicted from one living situation does not establish that [appellant] is unable to provide for her shelter and, indeed, the case law does not even require that she have a roof over her head."
Appellant further argues that there was no evidence to support the standard of proof that needed to be reached in this case. She argues that the LPS Act's "grave disability" provision, because of constitutional concerns, requires a finding beyond a reasonable doubt that a person suffers from a mental disorder so that the person is a harm to self that is "so serious as to present a physical danger," based on Conservatorship of Smith (1986) 187 Cal.App.3d 903 (Smith)and Doe v. Gallinot (1979) 486 F.Supp. 983. According to appellant, there was no such evidence, especially given that the evidence presented focused primarily on the question of her shelter.
For example, appellant notes, in Smith, the appellant, Smith, suffered from a mental disorder that commanded her to maintain a vigil outside a particular church. (Smith, supra, 187 Cal.App.3d at p. 910.) This "fixation" resulted in her "sleeping on the sidewalk in front of the church at night, and on one past occasion this may have caused her to become sick. She has no income, no savings, and no permanent home." (Ibid.) Nonetheless, the appellate court stated, "[b]izarre or eccentric behavior, even if it interferes with a person's normal intercourse with society, does not rise to a level warranting conservatorship except where such behavior renders the individual helpless to fend for herself or destroys her ability to meet those basic needs for survival. Only then does the interest of the state override her individual liberty interests." (Id. at p. 909.) The appellate court reversed an order appointing a conservator issued in the court below, concluding that there was insufficient evidence to prove Smith was "gravely disabled" beyond a reasonable doubt because, "[d]espite her admittedly bizarre behavior, [she was] not, nor [had] she been, incapacitated or unable to carry out the transactions necessary to her survival. No evidence was adduced to show that appellant, because of her mental condition, was suffering from malnutrition, overexposure, or any other sign of poor health or neglect. Her refusal to seek shelter is not life threatening. There was uncontradicted evidence that she accepts offers of food and money from friends and relatives. Appellant evinces a strong, sincere - if unorthodox - belief in God, her religion, and her place in religion. Under these circumstances, we conclude that appellant is not 'gravely disabled' to justify appointment of a conservator." (Id. at p. 910.)
Appellant's arguments are unpersuasive in light of the testimony we have summarized above. Even if we accept appellant's assertion that a grave disability finding legally must be supported by evidence that the person is a harm to self that is "so serious as to present a physical danger," a legal issue that we do not determine herein, there was substantial evidence to support the jury's finding. This is because appellant ignores crucial language contained in the relevant statutory definition. It states that a person is "gravely disabled" if the person has "[a] condition in which a person, as a result of a mental disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter." (§ 5008, subd. (h)(1)(A).) Here, Baldwin testified that, based on his examination of appellant's medical records and interviews with her medical providers, appellant suffered from a paranoid schizophrenia which, when she was first admitted to treatment, caused her to suffer from delusions so severe that it prevented her from "essentially really engaging in reality." She was in a "difficult state" and "totally preoccupied," refused to take medication, and denied that anything was wrong with her. It had been "very difficult" to feed her because she was "very suspicious" of food. Her delusions would make her unable to successfully negotiate with people in the community for food, clothing, and shelter. She also asserted serious physical problems during her placement, for which she refused examination and evaluation, and there were questions about whether these problems were real.
However, Baldwin concluded, appellant would not voluntarily take medication or seek treatment for physical or mental problems. Although appellant had improved with medication, Baldwin was "fairly certain" that if she did not take medication or seek treatment on her own, she would return "to a very acutely psychotic state."
Contrary to appellant's assertion, Baldwin's conclusions were supported by his reference to specific facts, including appellant's refusals to accept treatment, her belief that toxic fumes had come up through the floor of her apartment and affected her legs and ankles, her denials that she needed medication, that there was anything wrong with her, or that she had been evicted, her refusal to bathe or change her clothes based on a cardiologist's supposed instructions, and her insistence on using a wheelchair because of supposed leg problems, all which we have summarized above and need not repeat. Also, the testimony of appellant that we have summarized above provided further evidentiary support for Baldwin's opinions about appellant's delusions and denials of reality, including regarding her need for medication, diagnosis of paranoid schizophrenia, and eviction. Cheyenne Shelton's testimony further indicated the acute nature of appellant's condition at the time she was hospitalized, and the reality of her eviction, which appellant denied. Baldwin's conclusion that appellant would return to "a very acutely psychotic state" in the absence of treatment and medication, which state, his and the other testimony indicated, would render her unable to maintain shelter, make it very difficult for her to accept food, and cause her to fail to bathe or change her clothes, was also significant. It established that appellant, as a result of her very serious mental disorder, was an obvious, serious, immediate danger to herself, and was incapable of providing herself with shelter, food, or clothing.
Courts have found individuals with comparable psychiatric histories to be gravely disabled, specifically because their refusal to take their medication prevented them from being able to provide themselves with food, shelter, or clothing. (Johnson, supra, 235 Cal.App.3d at pp. 696-698; Conservatorship of Walker (1989) 206 Cal.App.3d 1572, 1576-1577 (Walker).) In Johnson, the court upheld such a finding where, after the appellant's previous hospitalization for hallucinations and subsequent suicide attempt, an expert witness testified that the appellant's noncompliance with taking medication made her incapable of caring for food, shelter, or clothing. (Johnson, supra, 235 Cal.App.3d at pp. 696-698.) In Walker, the court similarly upheld a finding of grave disability where, as here, the appellant might have been able to provide himself with food, shelter, and clothing, but his refusal to take his medication prevented him from engaging with reality to facilitate such provisions. (Walker, supra, 206 Cal.App.3d at p. 1576-1577.)
Against the backdrop of Johnson and Walker, appellant's reliance on Smith is misplaced. Smith was not diagnosed with a serious mental disorder, nor did she suffer from any delusions that prevented her recognizing reality or negotiating successfully with the community for shelter, food, or clothing. To the contrary, the appellate court specifically stated that there was no evidence that Smith was "incapacitated or unable to carry out the transactions necessary to her survival," or "was suffering from malnutrition, overexposure, or any other sign of poor health or neglect." (Smith, supra, 187 Cal.App.3d at p. 910.) There was no indication that her religious beliefs altered her sense of the reality around her. Here, on the other hand, unopposed expert testimony established that appellant suffered from a paranoid schizophrenia that made her unable to successfully carry out the transactions necessary for her survival, as evidenced by numerous examples, and that her serious mental illness left untreated caused her serious eating difficulties, led to her eviction from her apartment, caused her to refuse treatment for physical and mental problems, and caused her to believe those trying to help her were her enemies.
In short, substantial evidence established that appellant suffered from a very serious mental disorder that caused her to fall into an acutely psychotic state, which state rendered her unable to care for her basic needs, including her needs for shelter, food, and clothing. While Baldwin indicated that her condition could be treated, there was overwhelming evidence that appellant would not voluntarily seek any treatment. Under these circumstances, there was substantial evidence supporting the jury's finding that appellant was "gravely disabled."
II. The Court's Imposition of Special Disabilities
In its dispositive order, the trial court imposed special disabilities pursuant to section 5357. Specifically, the court ordered that appellant did not have the right to refuse to consent to treatment specifically related to her being gravely disabled, did not have "the right to refuse or consent to routine medical treatment unrelated to remedying or preventing the recurrence of [her] being gravely disabled, to wit, immunization," and was disqualified from possessing firearms. Appellant argues these disabilities were not properly imposed because there were no findings or evidence sufficient to impose them. Therefore, she argues, even if we uphold the finding of grave disability, we should reverse or remand the court's order regarding these disabilities. We disagree, although appellant points out what we conclude is a clerical error in the court's order, which we order stricken.
Section 5357 provides that the court may impose certain special disabilities on a conservatee, including those imposed by the court in the present case. (§ 5357, subds. (d)-(f).) As appellant concedes, case law indicates that substantial evidence must support the imposition of any disability. (See Conservatorship of Amanda B. (2009) 173 Cal.App.4th 1380, 1382.) Furthermore, the fact that a conservatee is gravely disabled does not "by itself satisfy the evidentiary requirements for the imposition of special disabilities under section 5357. A conservatee does not forfeit any legal right nor suffer legal disability by reason of the LPS commitment alone." (Walker, supra, 206 Cal.App.3d 1572, 1578 (footnote omitted).) Appellant agrees that the petitioner has the burden of presenting and pointing to evidence suggesting the imposition of disabilities, relying on Walker.
Appellant states in his opening brief that, "[a]lthough the petition requested that [appellant] be deprived of all the optional rights of which a court may deprive the conservatee under [section] 5357 . . . the special disabilities were not addressed at all during the trial, no evidence was offered as to why they were necessary, and the court made no reference to them at all in its oral ruling." The minute order approved the petition as prayed, but the written order deprived her only of the specific rights we have stated herein. Appellant argues that there was no finding or evidence to support depriving her of the right to own a firearm. Furthermore, the court did not engage in an examination necessary to find her incompetent which, appellant argues, was necessary to give or withhold consent to medical treatment, and the order refers to immunizations when there was no discussion of what immunizations would be required and whether appellant understood any such need. Furthermore, the court's order was based on "obviously erroneous" reasons because it stated appellant lacked capacity "by virtue of his/her minority and mental condition," when she is not a minor.
The Department responds by arguing that, in this case, there was no necessity to adduce additional testimony. Regarding the firearm disability, appellant's testimony alone was sufficient for the court to infer that she would present a danger to the safety of herself or others if in possession of a firearm or other weapon. Her diagnosis, and the paranoia that "permeated her testimony," indicated that her judgment was very impaired by her mental disorder, including her ability to accept reality and her delusions that others wanted to harm her and take her very valuable property. Under the circumstances, respondent argues, it would have been "negligent to entrust her with a weapon."
The Department also argues there is sufficient evidence to support the court's imposition of a special disability regarding "routine medical treatment." The Department contends that appellant's "unwillingness to comply with routine medical tests with regard to a simple abrasion, with her refusal to follow a doctor's advice in response to chest pain and dizziness despite the possibility of a serious heart condition, and with regard to her steadfast refusal that she cannot walk, despite reasonable and credible evidence to the contrary," render it necessary for her conservator to make decisions about her medical treatment.
In her reply brief, along with repeating her opening arguments, appellant argues that the Department, by interpreting the evidence without benefit of specific court findings, is doing exactly what the court in Walker disapproved of, that being "to parse the expert testimony for evidence where the petitioner failed to point out the evidence itself" below.
We agree with respondent, except that, as appellant points out, the court's order incorrectly refers to appellant's "minority" as a basis for its "routine medical treatment" disability, which is plainly a clerical error.
Appellant's arguments are unpersuasive for two reasons. First, she does not establish that California law prohibited the trial court from imposing the special disabilities challenged here without conducting further proceedings or making further findings. None of respondent's legal citations trump the trial court's authority to impose special disabilities pursuant to section 5357, provided that the court's rulings are supported by substantial evidence. (§ 5357; Conservatorship of Amanda B., supra, 173 Cal.App.4th at p. 1382.) Also, although we agree with the Walker court that the "better practice" is for the disclosure below, "by the questions asked or the argument made, the evidence relied upon to support special disabilities under section 5357" (Walker, supra, 206 Cal.App.3d at p. 1578), we are not aware of any legal requirement that this be done and appellant does not cite one to us. Furthermore, as indicated in a case cited by the respondent for another proposition, the trial court's action was proper because the court "properly specified each of the powers and disabilities it imposed," and because there is no common law or statutory requirement that the trial court provide specific on-the-record statements explaining which evidence it relied upon when imposing such disabilities. (Conservatorship of George H. (2008) 169 Cal.App.4th 157, 165.)
Second, we agree with the Department that there was sufficient evidence to support the court's imposition of the special disabilities challenged in light of the evidence presented at trial, for the reasons stated by the Department, which, as we have discussed, are quite different than those found in Smith.
Appellant also maintains this court must remand on the issue of whether appellant " 'lacks the capacity by virtue of his/her minority and mental condition to consent to routine medical treatment.' " The Department does not address the issue. We hold on our own initiative that this statement, contained in the court's November 1, 2010, order appointing conservator of person, included an obvious clerical error, that being the words "minority and." It is well-established that courts may correct orders so that they reflect the judicial decisions that were actually made, including on their own motion. (Code Civ. Proc., § 473, subd. (d); Dorland v. Dorland (1960) 178 Cal.App.2d 664, 670 ["[i]t is well settled that a court has inherent power, on motion of a party or on its own motion, to correct clerical errors in a judgment or order at any time"].) Furthermore, appellate courts may correct clerical errors that do not accurately reflect oral judgments. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts can correct clerical errors in abstract of judgment that did not reflect the oral judgments of sentencing courts].) The evidence presented and the court's rulings make clear that the court's imposition of the "routine medical treatment" disability was based on appellant's mental condition, and not that she was a minor, which issue was never raised and which she undisputably was not. The Department's petition makes no reference to appellant's minority and the court's September 29, 2010 trial minutes indicate that the petition was "approved as prayed." Therefore, we conclude the court's order contained a clerical error, i.e., "minority and," and order it stricken from the order.
III. Appellant's Right to Represent Herself
Appellant argues that the trial court committed reversible error when it denied her requests to represent herself, including because she did not have the constitutional right to represent herself in an LPS conservatorship proceeding. We disagree. A. The Relevant Proceedings Below
Twice in June 2010, before trial, appellant sought to represent herself. The court's June 2, 2010 minute order refers to one such request and states:
"In lieu of [appellant's] responses to the questions posed by the judge, i.e., that if the doctor's diagnosis is correct, she would not be capable of representing herself, the court rules as follows (with agreement of both counsel): The jury trial will proceed with [appellant's trial counsel] representing [appellant]. If at the end of the trial the jury's verdict is adverse to [appellant's] position, the court will determine if the doctor's diagnosis was correct. If the court determines the diagnosis was incorrect, [appellant] will be granted a new trial and will be able to represent herself. If the court determines the diagnosis was correct, the jury verdict will stand."
The record indicates that on September 14, 2010, before trial, appellant sought to represent herself and was informed by the court about Faretta upon the court's request that the Department's counsel determine whether there was a Faretta right in an LPS conservatorship case. The minute order for the hearing refers to appellant making an "oral Faretta motion." The court continued the matter to allow briefing, and appellant brought a lengthy brief in support of her motion to the September 21, 2010 hearing. Although this brief, referred to by the court as containing 61 pages, is not contained in the record, appellant summarized her arguments at the hearing on her motion as follows:
"Constitution — the U.S. Constitution, the declaration — and the amendment, the Declaration of Independence, Gettysburg Address, psychological theory (unintelligible), the Bible New Testament reference and the Book of John to the word 'counsel' or 'counselor.' I'm also referring to sociology. I'm referring to Abraham Lincoln as counsel for the plaintiff in the Dred Scott case, which he loss [sic]. The Faretta case you asked me to research [¶] . . . . [¶] I have an encyclopedia in my possession if I still had my possessions that I can show you the quote. (Unintelligible), California Supreme Court. The Keith Desmond Taylor case, the right to represent himself with attorney as advisory of capacity, something I don't understand. It says in connection with what you just said. The California Supreme Court reviewed the history of self-representation in California and found that the state like the federal government uses the same competency standard for both standing trial and representing one self. . . ."
After the court pointed out that appellant's cases referred to criminal defendants, appellant continued:
" . . . Now I've asked for — to represent myself, to have counsel, which means a lawyer in today's time, but it might not be what it was in 1971 which is one of the fundamental arguments in my legal brief. I have asked for a lawyer from a legal aid to be my back up, and last time I asked for a panel of law professors to also be my back up. But one of the reasons why is I'm accusing Carla Jean Caneps (phonetic) of stealing through plagiarism my legal arguments that she used when she was a law school student . . . ."
The court ruled that appellant was not entitled to represent herself in this type of proceeding, relying, among other things, on Conservatorship of Joel E. (2005) 132 Cal.App.4th 429, 441 (Joel E.). It denied her motion, subject to the court's review of her brief, which she submitted to the court. Later in the hearing, after considering appellant's Marsden motion, the court indicated that it had reviewed her brief. Also, during consideration of appellant's Marsden motion, the court stated:
"This was not a Faretta motion. If it had been a Faretta motion, as I said before, it too would be denied. You do not have a right to represent yourself. I believe that I would be doing you and the public a grave disservice if I were to exercise my discretion to allow you to represent yourself if, in fact, I had such discretion because I think it would result in a trial proceeding that would be extremely difficult for a judge to manage." B. Analysis
Appellant states that she "does not assert for purposes of this appeal that she has an absolute right to represent herself, but only that the court must first make the required findings that she lacks the capacity to do so, and that it did not." Nonetheless, she argues that we should not follow the holding in Joel E., supra, 132 Cal.App.4th 429 that a person does not have a constitutional or statutory right to self-representation in an LPS conservatorship proceeding. According to appellant, the Joel E. court misread the relevant statutory law and the holding in Conservatorship of Roulet (1979) 23 Cal.3d 219 (Roulet). We disagree.
1. Appellant's Constitutional Argument
Determining whether a trial court deprived a litigant of a constitutional right is a question of law subject to de novo review. (Conservatorship of John L. (2010) 48 Cal.4th 131, 142 (John L.).)
Appellant acknowledges that the question of her constitutional right to represent herself has been addressed in Joel E., supra, 132 Cal.App.4th 429, which held that litigants do not have the right to represent themselves in an LPS conservatorship proceeding. However, appellant argues that Joel E. was decided incorrectly because a proposed conservatee faces the same loss of liberty that a criminal defendant does. This is unpersuasive. As the Joel E. court states, "[i]t is beyond dispute that the intent of the LPS Act is neither punishment nor deterrence." (Id. at p. 436.) Joel E. specifically relies on the United States Supreme Court to hold that civil detention does not trigger " 'the entire range of criminal procedural protections,' " unless the detention is so punitive as to negate the State's intent to deem it " 'civil.' " (Id. at p. 436, citing Kansas v. Hendricks (1997) 521 U.S. 346, 361). As in the conservatorship reviewed in Joel E., appellant's conservatorship is for the purposes of rehabilitation and protection, rather than punishment, and therefore does not trigger the same due process standards as a criminal detention does. (Joel E., supra, at pp. 435-436.) Joel E. is directly applicable to the present case.
In Roulet, which appellant contends was wrongly interpreted in Joel E., our Supreme Court reviewed an order appointing a conservator for a person found to be gravely disabled by a preponderance of the evidence under the LPS Act. (Roulet, supra, 23 Cal.3d at pp. 221-222.) The court held that, because an involuntary commitment is incarceration against one's will, the choice of standard of proof implicates due process considerations which must be resolved not on the theoretical nature of the proceedings, but on the actual consequences of commitment to the individual; therefore, the state is required "to match its good intentions with proof beyond a reasonable doubt that appellant is in need of the state's care," which is to be determined by a unanimous jury verdict. (Id. at pp. 225-226, 235.)
The Joel E. court recognized that Roulet "likened civil commitment proceedings to criminal prosecutions in terms of the liberty interests at stake," but pointed out that implicit in its decision "was that the rights at issue served 'the need to protect [the prospective conservatee] against false imprisonment.' " (Joel E., supra, 132 Cal.App.4th at p. 438.) The court noted that, "[o]n the other hand, when the rights at issue do no bear on the accuracy of the results, courts have not extended criminal procedural protections to civil commitment proceedings. Thus, for example, the exclusionary rule and the privilege against self-incrimination have been held inapplicable in such proceedings." (Ibid.) The court concluded "that the right of self-representation falls into the latter category of rights, in which the accuracy of the results is not at stake," characterizing the right of self-representation as "the equivalent of a right to a poor defense." (Ibid.) Just as importantly, the court concluded that Roulet was inapposite because it "was based on the California Constitution, which does not provide an independent basis for the right to represent oneself in criminal proceedings, let alone any other proceeding." (Id. at p. 439.)
We conclude that the Joel E. court did not wrongly analyze Roulet. Our conclusion is supported by the fact that, as appellant acknowledges, the California Supreme Court cited to Joel E. favorably in John L., supra, 48 Cal.4th at p. 151 in observing that, although a proposed conservatee has certain due process rights, "the stated purposes of the LPS Act foreclose any argument that an LPS commitment is equivalent to criminal punishment in its design or purpose. Because of their differing objectives, . . . not all of the safeguards required in the former are appropriate to the latter.' " (Ibid.)Furthermore, other appellate courts have cited favorably to Joel E. in holding that civil procedural rules rather than criminal ones apply in an LPS conservatorship or similar proceeding. (E.g., Conservatorship of George H., supra, 169 Cal.App.4th at p. 164 [rules regarding jury instructions follow civil procedure rather than criminal procedure]; Conservatorship of David L. (2008) 164 Cal.App.4th 701, 710 [citing to Joel E. for the proposition that there is no constitutional right to counsel in an LPS conservatorship hearing].)
Appellant also cites as support for her constitutional argument this court's ruling in People v. Wolozon (1982) 138 Cal.App.3d 456. There, we reviewed the trial court's denial of a motion by a defendant found guilty by reason of insanity to represent himself in a Penal Code section 1026.5 proceeding, in which the District Attorney sought to extend the defendant's commitment beyond the maximum prescribed term. (Id. at p. 458.) We held that the trial court's denial was based on insufficient evidence, that being reports by doctors who were not asked to determine, and did not address, the defendant's competency to waive counsel. (Id. at p. 461.) However, our discussion indicated our view that the motion was made in a criminal proceeding pursuant to a Penal Code statutory scheme that implicated Faretta (id. at p. 460), and the defendant's constitutional right to represent himself in such a proceeding was not at issue. Appellant's failure to discuss these distinctions renders her reliance on the case ineffective.
Accordingly, we conclude appellant's constitutional argument is without merit.
2. Appellant's Statutory Argument
Appellant also challenges the court's denial of her motion to represent herself on statutory grounds, arguing that the holding in Joel E. that a person does not have a statutory right to self-representation in an LPS conservatorship proceeding is incorrect. (See Joel E., supra, 132 Cal.App.4th at pp. 440-441.) We find this argument unpersuasive.
The court in Joel E. determined there was no statutory right of self-representation based on the mandate to the court that is stated in section 5365, which provides that the court " 'shall appoint the public defender or other attorney for the conservatee or proposed conservatee within five days after the date of the petition.' " (Joel E., supra, 132 Cal.App.4th at p. 440.) The court found that there was "nothing in the language of section 5365 to suggest that a court has the option of not appointing counsel for the subject of a conservatorship petition based on grave disability or that such person has the option of declining counsel." (Ibid.) The court rejected the argument that Probate Code conservatorship procedures are to be followed in LPS conservatorship proceedings, including the implication in the Probate Code that a conservatee has the right to decline legal representation based on the requirement contained in Probate Code section 1828, subdivision (a)(6), which requires that the trial court advise the proposed conservatee of " 'the right . . . to be represented by legal counsel if the proposed conservatee so chooses.' " (Id. at p. 441, and fn. 9.) The Joel E. court noted that such procedures are not followed "when 'otherwise provided' " in Chapter 3 of the LPS Act pursuant to section 5350, subdivision (h); accordingly, since section 5365's mandatory appointment of counsel indicated that it provided otherwise, it controlled. (Id. at p. 441.) Appellant argues that this holding was incorrect because "section 5365 does not say the conservatee must keep the attorney," and merely provides for counsel early in the proceeding. We find this argument unpersuasive in light of Joel E. 's reasoning and holding. Thus, we reject appellant's "statutory right" argument as well.
In light of our conclusions, we also fail to see any merit in appellant's assertion that, while she may not have the absolute right to represent herself, the court must first make required findings that appellant lacks the capacity to represent herself.
Appellant further argues that, "[i]f the right to self-representation does apply to this proceeding, then the trial court erred in denying it" because the court "erred in failing to consider the specific question of whether [appellant] was competent to represent herself." Appellant also contends that there was no substantial evidence to support a ruling denying her right to represent herself, and that the court's error in denying her self-representation was reversible per se. Because we conclude that appellant has not established that she had the constitutional or statutory right to self-representation, we do not need to further address these issues.
In addition, the Department argues that the trial court had the discretion to allow or deny appellant's request for self-representation pursuant to Joel E. (Joel E., supra, 132 Cal.App.4th at p. 441.) However, appellant indicates in her reply brief that she is not arguing that the court abused its discretion, but rather that "Joel E. is wrongly decided, that [appellant] had the right to represent herself, and that the denial of that right without the findings Faretta [] and other authorities require would be the abuse of discretion." Therefore, we do not further address the issue raised by respondent's briefing.
DISPOSITION
The orders and judgment appealed from are affirmed in their entirety, except that, regarding the court's order appointing conservator of person, filed on November 1, 2010, the words "minority and" in the paragraph next to the second checked box in the section numbered "3" on page two of the order are hereby stricken as clerical error.
Lambden, J. We concur: Haerle, Acting P.J. Richman, J.