Filed 2/27/18 Conservatorship of James V. CA5





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

Conservatorship of the Person and Estate of JAMES V.

KINGS COUNTY PUBLIC GUARDIAN,

Plaintiff and Respondent,

v.

JAMES V.,

Objector and Appellant.

F074988

(Super. Ct. No. 02P0113)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Jennifer L. Giuliani, Judge.
Linda J. Zachritz for Objector and Appellant.
Colleen Carlson, County Counsel, and Diane Walker Freeman, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant James V. appeals from the order reappointing the Public Guardian of Kings County as conservator of his person and estate under the Lanterman-Petris-Short Act (LPS Act), pursuant to Welfare and Institutions Code section 5000 et seq. James contends hearsay was admitted at the hearing, trial counsel failed to act in his best interests, and he received ineffective assistance of counsel. Because the one-year LPS Act conservatorship has terminated by operation of law, we cannot grant any effective relief. Therefore, we dismiss the appeal as moot.
FACTUAL AND PROCEDURAL SUMMARY
On August 30, 2016, a petition for reappointment of conservator (hereafter petition) was filed in Kings County. The petition alleged that reappointment of a conservator was necessary because James was still “gravely disabled as a result of mental disorder.” If not renewed, the conservatorship would terminate on October 2, 2016.
Attached to the petition was a declaration, signed by Murray Weiss, a psychiatrist, Hassan Farray, a medical doctor, and Christina Gomez, the treatment team representative or case manager. The declaration stated that James had been examined on July 7, 2016, and found to be suffering from schizophrenia, unwilling to accept treatment voluntarily, and incapable of consenting to psychotropic medication. James was in denial about his illness, exhibited poor judgment, and had active delusions interfering with judgment and daily living. The declaration opined that James is gravely disabled and unable to provide for his personal needs for food, clothing, or shelter.
James requested a court trial on the petition. The matter was set for a court trial on October 28, 2016.
On October 28, 2016, James requested a jury trial. James also asked the judicial officer to recuse herself from the case “because of familiarity with the case.” Trial counsel indicated he was not joining in that request. The judicial officer informed James, “once there’s an assignment to a judicial officer … then that’s where it’s going to stay unless there’s a legal basis for recusal.”
Trial confirmation was held November 22, 2016. The case was scheduled for trial on December 14 and 15, 2016.
On December 9, 2016, the parties, through counsel, filed a stipulation to file evidence. The stipulation provided that attached progress notes, incident reports and other documents concerning James’s treatment and diagnosis, consisting of 47 pages, would be admitted into evidence at the trial. The parties also discussed and submitted jury instructions in advance of the start of trial.
At the start of trial on December 14, 2016, the parties entered into stipulations on procedural matters. The petition and attachments were admitted into evidence without objection.
Carolyn Oliveira-McCann, a Deputy Public Guardian in Kings County, testified. McCann stated the Public Guardian has been providing services for James since 1992. The current trial was the sixth petition for conservatorship filed on behalf of James. McCann had been working with James since 2008. Initially, James was in Ruby’s Valley Care Home in Fresno, but was evicted because he refused to take his medication. James was placed in a more secure facility in March 2016 in Sylmar. Sylmar provided psychiatric treatment, medications, doctors, outings for patients, and self-care.
David Rolfsema, a licensed clinical social worker, also testified. Rolfsema had testified as an expert in over 200 cases during the prior 20 years. The state moved Rolfsema be deemed an expert witness; James’s trial counsel objected. After a sidebar, trial counsel withdrew the objection and stipulated to Rolfsema as an expert witness on the issue of grave disability of James.
Rolfsema had been James’s case manager and interviewed James twice in preparation for the trial. In addition to interviewing James, Rolfsema reviewed James’s treatment records and spoke with staff. Rolfsema stated James suffered from schizophrenia. The treatment for schizophrenia was consistent administration of antipsychotic medication, a low-stress life, and therapy. James was taking Abilify and Artane to manage symptoms.
Despite the medications, Rolfsema testified James still had “problems with his judgment and … disorganized thought and … delusions,” all of which in Rolfsema’s opinion meant James is not able to provide himself with food, clothing, and shelter. James currently was suffering from active delusions that would interfere with daily activities.
James also testified at the trial. He acknowledged having a diagnosis of schizophrenia. James claimed he was “off medicine for years” enjoying life, but also acknowledged that when not on his medications he would “get arrested” or “someone calls the mental health.” While testifying, James’s remarks became rambling and tangential.
At the conclusion of the presentation of evidence, the trial court instructed the jury. Closing arguments were presented. After deliberations, the jury returned a unanimous verdict that James “is presently gravely disabled due to a mental disorder.”
The trial court reappointed the Public Guardian as the conservator of the person and estate. The order provides that the conservatorship automatically terminated on October 2, 2017. James filed a notice of appeal from the order.
DISCUSSION
James contends case specific hearsay was admitted in violation of People v. Sanchez (2016) 63 Cal.4th 665; trial counsel failed to act in his best interests; and trial counsel rendered ineffective assistance. He also contends that even though the LPS order appealed from has expired, this court should still address the issues raised in this appeal.
A conservator of the person, estate, or both may be appointed for a person who is “gravely disabled as a result of a mental health disorder.” (§ 5350.) LPS conservatorships automatically terminate after one year. (§ 5361.) Because an involuntary civil commitment, such as an LPS commitment, constitutes a deprivation of liberty, due process requires that a finding of grave disability in an LPS jury trial be unanimous and based upon proof beyond a reasonable doubt. (Sorenson v. Superior Court (2013) 219 Cal.App.4th 409, 424.) The LPS conservatorship from which James appeals expired on October 2, 2017.
As a general rule, appellate review is limited to actual controversies; a case that involves “‘only abstract or academic questions of law cannot be maintained.’” (People v. DeLong (2002) 101 Cal.App.4th 482, 486.) “‘“[A]n action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events. A reversal in such a case would be without practical effect, and the appeal will therefore be dismissed.” [Citation.]’” (Ibid.) In other words, “[a]n appeal should be dismissed as moot when the occurrence of events renders it impossible for the appellate court to grant appellant any effective relief.” (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479.) Here, since the order appealed from has already expired on its own terms, resolving the issues presented would not confer any effective relief to James.
James argues, however, that the issues should be addressed regardless of the expiration of the order. “[T]he appeal is not moot nor subject to dismissal if the question to be decided is of general public interest [citation]; or if there is a likelihood of recurrence of the controversy between the same parties or others; or if there remain material questions for the court’s determination.” (Grier v. Alameda-Contra Costa Transit Dist. (1976) 55 Cal.App.3d 325, 330.) James maintains that the second exception, a likelihood of recurrence of the controversy between the same parties, applies here.
We acknowledge that courts have exercised their discretion to determine the merits of some cases when the appeal raises an issue likely to recur while evading review. (See e.g., Conservatorship of John L. (2010) 48 Cal.4th 131, 142, fn. 2 [proposed conservatee’s due process right to be present at hearing]; Conservatorship of George H. (2008) 169 Cal.App.4th 157, 161–162, fn. 2 [sua sponte instructional requirements]; Conservatorship of Joel E. (2005) 132 Cal.App.4th 429, 434 [right to self-representation].) That, however, is not the case here. The issues raised by James are not likely to recur while evading review.
If a conservator petitions to reestablish a conservatorship, as occurred here, upon request there is a court trial or jury trial on the issue of whether the conservatee remains gravely disabled. (§ 5362, subd. (a); Sorenson v. Superior Court, supra, 219 Cal.App.4th at pp. 442–443.) The reestablishment of an LPS conservatorship is not a continuation of earlier proceedings. Rather, a proceeding to reestablish a conservatorship is a new and independent proceeding at which the state must establish beyond a reasonable doubt that the proposed conservatee remains presently gravely disabled. (§§ 5350, 5362, subd. (a); Conservatorship of Roulet (1979) 23 Cal.3d 219, 235; Conservatorship of Diedre B. (2010) 180 Cal.App.4th 1306, 1312.) Thus, a conservatee presented with a petition to reestablish a conservatorship is entitled to a full court trial or trial by jury upon request. (§ 5350, subd. (d)(3); Conservatorship of Diedre B., supra, at p. 1312.)
At a new trial, evidence will need to be admitted to establish that James is gravely disabled and all such evidence is subject to evidentiary objections, such as hearsay objections. Additionally, the evidence presented at any future trial reasonably will differ, depending on James’s progress and amenability to treatment. (See Sorenson v. Superior Court, supra, 219 Cal.App.4th at p. 447.) Moreover, James had an adequate remedy available to him to challenge the evidence presented at his trial and continuation of his status as an LPS conservatee prior to the expiration of the order on October 2, 2017. Section 5364 provides that “[a]t any time, the conservatee may petition the superior court for a rehearing as to his status as a conservatee.”
As for James’s contentions that trial counsel failed to act in his best interests and rendered ineffective assistance, and that the conservatorship would not have been renewed but for counsel’s failings, again, James had an adequate remedy available to him prior to October 2, 2017. James could have raised any challenges to trial counsel’s representation, and to his own status as an LPS conservatee, in a petition for writ of habeas corpus. (See Conservatorship of Amanda B. (2009) 173 Cal.App.4th 1380, 1385; see also In re Gandolfo (1984) 36 Cal.3d 889, 898 & fn. 7; Henreid v. Superior Court (1976) 59 Cal.App.3d 552, 558.)
We are unpersuaded that the issues James raises in this appeal fall within any exception to the mootness doctrine as they are not likely to recur while evading review.
DISPOSITION
The appeal is dismissed.