Continuing Jurisdiction/Jury Instruction and Conservatorship of McKeown (1994)
Court of Appeal of California, Fourth District, Division One
May 31, 1994 25 Cal. App. 4th 502 (Cal. Ct. App. 1994)
The appellate court held that in a reestablishment case if a jury trial commences four days after the original one-year period but notice was taken for the initial hearing before one-year period limit, the trial court can retain jurisdiction over the conservatee. The court also holds that erroneous jury instruction even if made in error can be dismissed if there is no risk of prejudice. The court again differentiates between criminal procedure and LPS/civil procedure and that criminal procedure generally does not apply to LPS.
The court noted that “[e]ven a temporary interruption in the chain of conservatorship does not extinguish the court’s continuing jurisdiction.” (Id., citing In re Gandolfo, supra, 36 Cal.3d at 896, fn. 2; Conservatorship of Wyatt, supra, 195 Cal.App.3d at 397.)
Conservatee appeals an order establishing the public conservator conservator over his person. He contends that the trial court erred in denying his motion to dismiss on the grounds of lack of jurisdiction. Conservatee also contends that the trial court erred in giving instructions regarding expert testimony (CALJIC No. 2.80) as opposed to (BAJI No. 2.40). The court found that the trial court had not erred in jurisdiction and was not required to give jury instructions as per the conservatee’s wishes and affirmed the order.
The conservatee had a LPS one year conservatorship established on April 16, 1992. As the one year date approached, the public conservator filed a petition to reestablish conservatorship. The conservatee contested jurisdiction and demanded a jury trial. Conservatee filed a motion to dismiss on the grounds that the court held no jurisdiction over him as the citation for conservatorship had the incorrect stamp of the social services clerk and not the court clerk.
The trial court denied conservatee’s motion, stating that jurisdiction continued from the original petition to the current reestablishment proceeding. The jury found conservatee gravely disabled and the trial court reestablished the conservatee’s conservatorship. The conservatee filed a timely appeal on several grounds.
The first ground that the conservatee contested on was that the trial court did not hold jurisdiction over the him as the citation for conservatorship was not properly stamped and issued. The conservatee contends that this citation must have the signature of the court clerk not the social worker clerk for jurisdiction to be continued. The appellate court does not find that appellant’s appeal holds any merit. The court finds that because appellant was facing a reestablishment hearing meant to continue an existing conservatorship, the court continues to have jurisdiction regardless of what signature was on the citation.
As such, the court had continuing jurisdiction from the date the previous conservatorship was established until the end of that one-year period. ( Conservatorship of Wyatt (1987) 195 Cal.App.3d 391, 397 [ 240 Cal.Rptr. 632]; see also In re Gandolfo (1984) 36 Cal.3d 889, 894 [ 206 Cal.Rptr. 149, 686 P.2d 669].)
The court also reminds the conservatee that his conservatorship was established on April 16, 1992. In accordance to Welfare and Inst Code ___ a permanent LPS conservatorship was intended to last one year. As a result, the court had jurisdiction over conservatee’s person until April 16, 1993. In most jurisdictions, the court sends a notice that the conservatorship will terminate and the public conservator will file a petition for reestablishment before the date of termination. In the conservatee’s case, the public conservator filed a petition to reestablish conservatorship on March 22, 1993. Notice for the reestablishment hearing was noticed on April 15, 1993. On that date, the court continued to hold jurisdiction over the conservatee. The conservatee contested the jurisdiction and the conservatee demanded a jury trial. The jury trial began on April 20, 1993.
The court notes that even though the jury trial began four days after expiration date, notice was given for the initial proceedings before the termination of the one-year limit. The appellate court finds that a temporary interruption in the chain court proceedings will not terminate the court's continuing jurisdiction over the conservatee’s person. The court cites
(In re Gandolfo, supra, 36 Cal.3d at p. 896, fn. 2; Conservatorship of Wyatt, supra, 195 Cal.App.3d at p. 397.) Gandolfo found the trial court properly retained jurisdiction over a conservatee even though there was a six-week interruption in the chain of conservatorship. Here, there was at most a four-day interruption. In light of the factual similarities between the cases, we reject McKeown's contention that Gandolfo is inapplicable.)
The conservatee’s second contention was that the trial court judge had failed to give the jury instruction CALJIC No. 2.80 instead of BAJI No. 2.40. These instructions were in regards to the expert testimony of his attending psychologist. First and foremost, the court notes that it holds no duty to give instruction CALJIC No. 2.80 in civil trials. (In re. Conservatorship of Law (1988) 202 Cal.App.3d 1336, 1342 [ 249 Cal.Rptr. 415].) The conservatee made the common error of conflating criminal proceedings with LPS proceedings which are civil in nature. The court notes that the two proceedings may appear similar but a conservatorship proceeding is not analogous to a criminal proceeding. (In re. Conservatorship of Baber (1984) 153 Cal.App.3d 542, 549 [ 200 Cal.Rptr. 262] The court acknowledges that the two have similar safeguards as they both deal with involuntary confinement, but a LPS cases are civil as they deal with the protection of society and the person from themselves. The court relies on Conservatorship of Law, in which the conservatee contended that the trial court was required to give jury instruction regarding circumstantial evidence. The conservatee applied the same logic of LPS matters being analogous to criminal matters. The court in Law made the same note that a conservatorship proceeding is not a criminal proceeding.
Similarly, the court here gave the expert testimony instruction applicable to civil cases, BAJI No. 2.40, and not the corresponding criminal instruction, CALJIC No. 2.80. BAJI No. 2.40 correctly states a jury is not bound by an expert opinion and may reject it if it is not believable. It further lists factors which assist the jury in determining the witness's credibility. It specifically calls to the jury's attention the "existence or nonexistence of a bias, interest or other motive." ( Ibid.)
The instruction that the trial court gave was BAJI No. 2.20 which informed the jury that they "are the sole and exclusive judges of the believability of the witnesses." The instruction the conservatee sought was CALJIC No. 2.80 which was applicable for criminal matters.
Conservatee challenges the last part of BAJI No. 2.40, that uncontradicted expert testimony is "conclusive and binding on you." The court contends that the instructions must be interpreted as a whole and not by seriatim. Accordingly, the jury was properly advised.
The court notes that even if it were to assume error, the conservatee has not established the requisite burden of prejudice.
"The standard in conservatorship proceedings requires that error be harmless beyond a reasonable doubt." ( Conservatorship of Walker, supra, 196 Cal.App.3d at p. 1094.) In light of the strong evidence of McKeown's mental disorder and his inability to meet the basic needs for food, clothing, or shelter, instructing the jury pursuant to BAJI No. 2.40 and not CALJIC No. 2.80 was harmless beyond a reasonable doubt.
The court contends that even in lieu of everything, the error was harmless as the jury found the conservatee gravely disabled beyond a reasonable doubt. The testimony proffered by the psychologist stated that appellant suffered from schizo-affective disorder, polysubstance abuse and pica. As a result of these mental disorders, the conservatee experienced paranoid delusions, depression, voices telling him to kill himself, difficulty eating appropriately, and an inability to take care of his ADLs. This testimony was supported by the testimony of conservatee’s caseworker. The court finds that this compounded information would have led to a jury verdict of gravely disabled regardless of whether the court had differed in its jury instruction.
Accordingly, even if the court erred in instructing the jury pursuant to BAJI No. 2.40 and not CALJIC No. 2.80, any error was harmless beyond a reasonable doubt, given the overwhelming evidence of the necessity for a conservatorship in this case. (3) But while we uphold giving BAJI No. 2.40 rather than CALJIC No. 2.80 in this case, we must observe that the challenged language, that uncontradicted expert testimony is "conclusive and binding on you," does not withstand analysis.
The conservatee asserts that the foundation of CALJIC No. 2.90, the "reasonable doubt" instruction is constitutionally defective. He argues CALJIC No. 2.90
impermissibly reduces the People's burden of proof below that required by the state and federal constitutional guarantees of due process. The point is without merit.
The court rebuts with the fact that instructions like BAJI No. 2.40 do not point out that there is general rules like expert testimony can be rejected by the trier of fact as long as the rejection is not arbitrarily based.
"As a general rule, `[p]rovided the trier of fact does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.]' ( Hicks v. Reis (1943) 21 Cal.2d 654, 659-660 [ 134 P.2d 788].) This rule is applied equally to expert witnesses."
The appellate court based on these findings rules that appellant’s argument was unfounded and rejects his request to reverse the order. The judgment appointing public conservator conservator over the person of McKeown is affirmed.
Procedural Posture
Appellant disabled person challenged an order of the Superior Court of San Diego County (California), which reestablished conservatorship of appellant's person at the request of respondent social services.
Overview
Appellant disabled person challenged an order which reestablished a conservatorship of his person after the trial court denied his motion to dismiss the reestablishment petition for lack of jurisdiction. On appeal, the court affirmed and rejected appellant's claim that the citation had to bear the signature of the court clerk for the court to have jurisdiction. The court also found that even if the court erred in instructing the jury, any error was harmless beyond a reasonable doubt, given the overwhelming evidence of the necessity for aconservatorship. The court did find, however, that the instruction that uncontradicted expert testimony was "conclusive and binding on you," did not withstand analysis.
Outcome
The court affirmed an order reestablishing the conservatorship over appellant disabled person in an action brought by respondent social services and held that any error in the trial court's instruction to the jury was harmless beyond a reasonable doubt.
Court of Appeal of California, Fourth District, Division One
May 31, 1994 25 Cal. App. 4th 502 (Cal. Ct. App. 1994)
The appellate court held that in a reestablishment case if a jury trial commences four days after the original one-year period but notice was taken for the initial hearing before one-year period limit, the trial court can retain jurisdiction over the conservatee. The court also holds that erroneous jury instruction even if made in error can be dismissed if there is no risk of prejudice. The court again differentiates between criminal procedure and LPS/civil procedure and that criminal procedure generally does not apply to LPS.
The court noted that “[e]ven a temporary interruption in the chain of conservatorship does not extinguish the court’s continuing jurisdiction.” (Id., citing In re Gandolfo, supra, 36 Cal.3d at 896, fn. 2; Conservatorship of Wyatt, supra, 195 Cal.App.3d at 397.)
Conservatee appeals an order establishing the public conservator conservator over his person. He contends that the trial court erred in denying his motion to dismiss on the grounds of lack of jurisdiction. Conservatee also contends that the trial court erred in giving instructions regarding expert testimony (CALJIC No. 2.80) as opposed to (BAJI No. 2.40). The court found that the trial court had not erred in jurisdiction and was not required to give jury instructions as per the conservatee’s wishes and affirmed the order.
The conservatee had a LPS one year conservatorship established on April 16, 1992. As the one year date approached, the public conservator filed a petition to reestablish conservatorship. The conservatee contested jurisdiction and demanded a jury trial. Conservatee filed a motion to dismiss on the grounds that the court held no jurisdiction over him as the citation for conservatorship had the incorrect stamp of the social services clerk and not the court clerk.
The trial court denied conservatee’s motion, stating that jurisdiction continued from the original petition to the current reestablishment proceeding. The jury found conservatee gravely disabled and the trial court reestablished the conservatee’s conservatorship. The conservatee filed a timely appeal on several grounds.
The first ground that the conservatee contested on was that the trial court did not hold jurisdiction over the him as the citation for conservatorship was not properly stamped and issued. The conservatee contends that this citation must have the signature of the court clerk not the social worker clerk for jurisdiction to be continued. The appellate court does not find that appellant’s appeal holds any merit. The court finds that because appellant was facing a reestablishment hearing meant to continue an existing conservatorship, the court continues to have jurisdiction regardless of what signature was on the citation.
As such, the court had continuing jurisdiction from the date the previous conservatorship was established until the end of that one-year period. ( Conservatorship of Wyatt (1987) 195 Cal.App.3d 391, 397 [ 240 Cal.Rptr. 632]; see also In re Gandolfo (1984) 36 Cal.3d 889, 894 [ 206 Cal.Rptr. 149, 686 P.2d 669].)
The court also reminds the conservatee that his conservatorship was established on April 16, 1992. In accordance to Welfare and Inst Code ___ a permanent LPS conservatorship was intended to last one year. As a result, the court had jurisdiction over conservatee’s person until April 16, 1993. In most jurisdictions, the court sends a notice that the conservatorship will terminate and the public conservator will file a petition for reestablishment before the date of termination. In the conservatee’s case, the public conservator filed a petition to reestablish conservatorship on March 22, 1993. Notice for the reestablishment hearing was noticed on April 15, 1993. On that date, the court continued to hold jurisdiction over the conservatee. The conservatee contested the jurisdiction and the conservatee demanded a jury trial. The jury trial began on April 20, 1993.
The court notes that even though the jury trial began four days after expiration date, notice was given for the initial proceedings before the termination of the one-year limit. The appellate court finds that a temporary interruption in the chain court proceedings will not terminate the court's continuing jurisdiction over the conservatee’s person. The court cites
(In re Gandolfo, supra, 36 Cal.3d at p. 896, fn. 2; Conservatorship of Wyatt, supra, 195 Cal.App.3d at p. 397.) Gandolfo found the trial court properly retained jurisdiction over a conservatee even though there was a six-week interruption in the chain of conservatorship. Here, there was at most a four-day interruption. In light of the factual similarities between the cases, we reject McKeown's contention that Gandolfo is inapplicable.)
The conservatee’s second contention was that the trial court judge had failed to give the jury instruction CALJIC No. 2.80 instead of BAJI No. 2.40. These instructions were in regards to the expert testimony of his attending psychologist. First and foremost, the court notes that it holds no duty to give instruction CALJIC No. 2.80 in civil trials. (In re. Conservatorship of Law (1988) 202 Cal.App.3d 1336, 1342 [ 249 Cal.Rptr. 415].) The conservatee made the common error of conflating criminal proceedings with LPS proceedings which are civil in nature. The court notes that the two proceedings may appear similar but a conservatorship proceeding is not analogous to a criminal proceeding. (In re. Conservatorship of Baber (1984) 153 Cal.App.3d 542, 549 [ 200 Cal.Rptr. 262] The court acknowledges that the two have similar safeguards as they both deal with involuntary confinement, but a LPS cases are civil as they deal with the protection of society and the person from themselves. The court relies on Conservatorship of Law, in which the conservatee contended that the trial court was required to give jury instruction regarding circumstantial evidence. The conservatee applied the same logic of LPS matters being analogous to criminal matters. The court in Law made the same note that a conservatorship proceeding is not a criminal proceeding.
Similarly, the court here gave the expert testimony instruction applicable to civil cases, BAJI No. 2.40, and not the corresponding criminal instruction, CALJIC No. 2.80. BAJI No. 2.40 correctly states a jury is not bound by an expert opinion and may reject it if it is not believable. It further lists factors which assist the jury in determining the witness's credibility. It specifically calls to the jury's attention the "existence or nonexistence of a bias, interest or other motive." ( Ibid.)
The instruction that the trial court gave was BAJI No. 2.20 which informed the jury that they "are the sole and exclusive judges of the believability of the witnesses." The instruction the conservatee sought was CALJIC No. 2.80 which was applicable for criminal matters.
Conservatee challenges the last part of BAJI No. 2.40, that uncontradicted expert testimony is "conclusive and binding on you." The court contends that the instructions must be interpreted as a whole and not by seriatim. Accordingly, the jury was properly advised.
The court notes that even if it were to assume error, the conservatee has not established the requisite burden of prejudice.
"The standard in conservatorship proceedings requires that error be harmless beyond a reasonable doubt." ( Conservatorship of Walker, supra, 196 Cal.App.3d at p. 1094.) In light of the strong evidence of McKeown's mental disorder and his inability to meet the basic needs for food, clothing, or shelter, instructing the jury pursuant to BAJI No. 2.40 and not CALJIC No. 2.80 was harmless beyond a reasonable doubt.
The court contends that even in lieu of everything, the error was harmless as the jury found the conservatee gravely disabled beyond a reasonable doubt. The testimony proffered by the psychologist stated that appellant suffered from schizo-affective disorder, polysubstance abuse and pica. As a result of these mental disorders, the conservatee experienced paranoid delusions, depression, voices telling him to kill himself, difficulty eating appropriately, and an inability to take care of his ADLs. This testimony was supported by the testimony of conservatee’s caseworker. The court finds that this compounded information would have led to a jury verdict of gravely disabled regardless of whether the court had differed in its jury instruction.
Accordingly, even if the court erred in instructing the jury pursuant to BAJI No. 2.40 and not CALJIC No. 2.80, any error was harmless beyond a reasonable doubt, given the overwhelming evidence of the necessity for a conservatorship in this case. (3) But while we uphold giving BAJI No. 2.40 rather than CALJIC No. 2.80 in this case, we must observe that the challenged language, that uncontradicted expert testimony is "conclusive and binding on you," does not withstand analysis.
The conservatee asserts that the foundation of CALJIC No. 2.90, the "reasonable doubt" instruction is constitutionally defective. He argues CALJIC No. 2.90
impermissibly reduces the People's burden of proof below that required by the state and federal constitutional guarantees of due process. The point is without merit.
The court rebuts with the fact that instructions like BAJI No. 2.40 do not point out that there is general rules like expert testimony can be rejected by the trier of fact as long as the rejection is not arbitrarily based.
"As a general rule, `[p]rovided the trier of fact does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.]' ( Hicks v. Reis (1943) 21 Cal.2d 654, 659-660 [ 134 P.2d 788].) This rule is applied equally to expert witnesses."
The appellate court based on these findings rules that appellant’s argument was unfounded and rejects his request to reverse the order. The judgment appointing public conservator conservator over the person of McKeown is affirmed.
Procedural Posture
Appellant disabled person challenged an order of the Superior Court of San Diego County (California), which reestablished conservatorship of appellant's person at the request of respondent social services.
Overview
Appellant disabled person challenged an order which reestablished a conservatorship of his person after the trial court denied his motion to dismiss the reestablishment petition for lack of jurisdiction. On appeal, the court affirmed and rejected appellant's claim that the citation had to bear the signature of the court clerk for the court to have jurisdiction. The court also found that even if the court erred in instructing the jury, any error was harmless beyond a reasonable doubt, given the overwhelming evidence of the necessity for aconservatorship. The court did find, however, that the instruction that uncontradicted expert testimony was "conclusive and binding on you," did not withstand analysis.
Outcome
The court affirmed an order reestablishing the conservatorship over appellant disabled person in an action brought by respondent social services and held that any error in the trial court's instruction to the jury was harmless beyond a reasonable doubt.