Conservatorship of Daniel A.

Filed 8/7/06 Conservatorship of Daniel A. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Daniel A. appeals an order imposing a permanent conservatorship over his person pursuant to the Lanterman-Petris-Short (LPS) Act. (Welf. & Inst. Code § 5350 et seq.) We affirm.

FACTS AND PROCEDURAL HISTORY

Daniel A. suffers from schizophrenia of longstanding, evidenced in part by his delusional and disorganized thinking. He had been hospitalized and treated for mental illness seven times over a ten-year period. His treating psychiatrist opined that Daniel A. is gravely disabled by his illness and in need of inpatient hospitalization.

On June 2, 2005, the trial court imposed a temporary conservatorship over Daniel A.'s person, and it appointed the Public Guardian as his temporary conservator. The Public Guardian then petitioned the court to establish a permanent one-year conservatorship over Daniel A.'s person.

A social worker served Daniel A. with a citation that explained the nature of the conservatorship proceeding and his rights to appointed counsel and to a jury trial. The social worker also served Daniel A. with the Public Guardian's petition for a permanent conservatorship, and the investigator's recommendation for an LPS conservatorship.

On June 28, 2005, the trial court held the permanent conservatorship hearing. Immediately at the inception of the hearing, Daniel A. stated: "Good morning. I've agreed to take conservatorship as a faster way out of the system." Daniel A.'s attorney then stated: "[I]t has been explained to me [that Daniel A.] said that he would accept the conservatorship for one year." Daniel A. then interrupted and stated: "I thought it was six months." The attorney responded that he would "submit[] the matter based upon my client's statement to the investigator."

The court then spoke with Daniel A., who challenged his placement at "Merced Manor," and requested placement closer to his family in San Luis Obispo. Daniel A. also disputed that he was mentally ill, explaining that he suffered only from depression.

The court questioned: "So if I understand you correctly, you're not objecting to the . . . conservatorship, the petition for conservatorship, your concerns really are based upon the placement?" Daniel A. replied: "Yes."

The court then briefly discussed placement, and thereafter, approved the petition for permanent conservatorship. (Welf. & Inst. Code, § 5361.)

Daniel A. appeals and contends that the conservatorship order is invalid because the trial court failed to advise him of his procedural rights. (Prob. Code, § 1828, subds. (a) & (b).)

DISCUSSION

Daniel A. argues that the trial court did not advise him of his rights pursuant to Probate Code section 1828, subdivisions (a) and (b). He points out that he did not concede that he was gravely disabled or that he suffers from a mental illness. Daniel A. adds that neither he nor his attorney expressly waived his right to a jury trial. (Conservatorship of Mary K. (1991) 234 Cal.App.3d 265, 271 [counsel may waive proposed conservatee's right to jury trial].) He also contends that he believed, in error, that the conservatorship was limited to six months.

In Conservatorship of Roulet (1979) 23 Cal.3d 219, 235, our Supreme Court held that California constitutional guarantees of proof beyond a reasonable doubt and a unanimous jury verdict apply to conservatorship proceedings pursuant to the LPS Act. Probate Code section 1828, subdivision (a), requires the trial court to inform the proposed conservatee of his right to oppose the proceeding, to a jury trial, and to appointed counsel, among other things. Probate Code section 1828, subdivision (b), requires the trial court to consult the proposed conservatee to determine his opinion concerning the establishment of the conservatorship and the proposed conservator. (Conservatorship of Christopher A. (2006) 139 Cal.App.4th 604, 611 ["The court is also required to conduct an on-the-record voir dire of the proposed conservatee regarding the nature of the proceeding and the effect of the proceeding on his or her basic rights."].) An attorney for the conservatee, however, may waive the conservatee's right to a jury trial as well as the other Probate Code section 1828 advisements, "by oral consent in open court without a personal explicit waiver by [the proposed conservatee]." (Conservatorship of Mary K., supra, 234 Cal.App.3d 265, 271.)

Here the trial court did not inform Daniel A. of his statutory rights pursuant to Probate Code section 1828, nor did it accept a waiver of those rights from either Daniel A. or his attorney. The brief record of the proceedings indicates Daniel A.'s belief that he was not mentally ill and that the conservatorship was only six months in duration. The discussion between the trial court and Daniel A. regarded his placement in Merced.

Nevertheless, the matter is academic because the one-year conservatorship has expired. Should there be future conservatorship proceedings with Daniel A., the court must comply with Probate Code section 1828.

We affirm order of conservatorship.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Robert Dimitrijevich, Temporary Judge*

Superior Court County of San Luis Obispo

______________________________

Jean F. Matulis, under appointment by the Court of Appeal, for Objector and Appellant.

James B. Lindholm, Jr., County Counsel and Rita L. Neal, Deputy County Counsel, for Petitioner and Respondent.

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*(Pursuant to Cal. Const., art. VI, § 21.)