Filed 10/1/15




                          CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FIFTH APPELLATE DISTRICT


Conservatorship of the Person and Estate of
KEVIN A.

YVONNIA BROWN, as Public Conservator,                            F070914
etc.,
                                                          (Super. Ct. No. P25860)
        Petitioner and Respondent,

                v.                                             OPINION
KEVIN A.,

        Objector and Appellant.



        APPEAL from an order of the Superior Court of Merced County. John D.
Kirihara, Judge.

        Paul Bernstein, under appointment by the Court of Appeal, for Objector and
Appellant.
        James N. Fincher, County Counsel, and Forrest W. Hansen, Deputy County
Counsel, for Petitioner and Respondent.
                                          -ooOoo-
                                        INTRODUCTION
       Kevin A. appeals from an order granting the petition of Yvonnia Brown, the
Public Conservator of Merced County (Public Conservator) to reestablish
conservatorship for a one-year period, finding him to be gravely disabled under the
Lanterman-Petris-Short Act (LPS) (Welf. & Inst. Code, § 5000 et seq.).1 Kevin A.
argues the court erred in accepting a waiver of jury trial over his objection and request.
In light of the recent California Supreme Court decisions in People v. Blackburn (2015)
61 Cal.4th 1113 and People v. Tran (2015) 61 Cal.4th 1160, we agree and reverse the
order granting the petition.
                                RELEVANT BACKGROUND
       Conservatorship over Kevin A. was initiated in 2006. For the majority of the time
that followed, Kevin A. remained in conservatorship. However, in June 2013, a jury
found Kevin A. was not gravely disabled and, as a result, conservatorship was
terminated.
       In August 2014, the Public Conservator reinitiated conservatorship proceedings by
filing a petition for reappointment of conservatorship over Kevin A.‟s person and estate
pursuant to section 5361.2 The petition alleged Kevin A. remained gravely disabled as a

       1All   further statutory references are to the Welfare and Institutions Code unless indicated
otherwise.
       2“Conservatorship    initiated pursuant to this chapter shall automatically terminate one
year after the appointment of the conservator by the superior court. The period of service of a
temporary conservator shall not be included in the one-year period. Where the conservator has
been appointed as conservator of the estate, the conservator shall, for a reasonable time, continue
to have such power and authority over the estate as the superior court, on petition by the
conservator, may deem necessary for (1) the collection of assets or income which accrued during
the period of conservatorship, but were uncollected before the date of termination, (2) the
payment of expenses which accrued during period of conservatorship and of which the
conservator was notified prior to termination, but were unpaid before the date of termination, and
(3) the completion of sales of real property where the only act remaining at the date of
termination is the actual transfer of title. If upon the termination of an initial or a succeeding
period of conservatorship the conservator determines that conservatorship is still required, he
may petition the superior court for his reappointment as conservator for a succeeding one-year
period. The petition must include the opinion of two physicians or licensed psychologists who

                                                  2.
result of a mental disorder. It also sought the denial of certain rights and privileges to
Kevin A., including the privilege of possessing a license to operate a motor vehicle, the
right to enter into transactions in excess of $50, the right to refuse psychiatric treatment,
the right to refuse or consent to treatment of the conservatee‟s disability or other medical
treatment, and the right to possess a firearm.
       Specifically, two physicians opined Kevin A. was gravely disabled. Darryl Chagi,
M.D., stated Kevin A. “presents symptoms of persecutory delusions, paranoia, poor
insight, and low distress tolerance. [Kevin A.] has a significant history of responding to
belief system with physical aggression and dangerous behaviors. Due to the fact that he
does not believe he has a mental illness, it is unlikely he will remain med compliant
without supervision.” Dr. Chagi opined Kevin A. should be prohibited from possessing a
firearm and from giving informed consent regarding his psychiatric treatment or medical
treatment. Further, he was not competent to enter a contract and should not be permitted
to operate a motor vehicle as a result of his grave disability. John A. Engers, M.D., also
opined Kevin A. should be prohibited from possessing a firearm and from giving
informed consent regarding his psychiatric treatment or medical treatment, he was not
competent to enter a contract, and should not be permitted to operate a motor vehicle as a
result of his grave disability. Dr. Engers stated Kevin A. “presents very poor insight and
decision making about mental illness. Due to poor insight, it has caused him to
participate in aggressive behaviors towards others. He is unable to participate in a

have a doctoral degree in psychology and at least five years of postgraduate experience in the
diagnosis and treatment of emotional and mental disorders that the conservatee is still gravely
disabled as a result of mental disorder or impairment by chronic alcoholism. In the event that the
conservator is unable to obtain the opinion of two physicians or psychologists, he shall request
that the court appoint them.
        “Any facility in which a conservatee is placed must release the conservatee at his request
when the conservatorship terminates. A petition for reappointment filed by the conservator or a
petition for appointment filed by a public guardian shall be transmitted to the facility at least 30
days before the automatic termination date. The facility may detain the conservatee after the end
of the termination date only if the conservatorship proceedings have not been completed and the
court orders the conservatee to be held until the proceedings have been completed.”


                                                 3.
meaningful conversation about means for providing food, clothing and shelter at this
time.”
         Psychiatrist Isabel Manuel, Social Worker Vong Chang, Deputy Sheriff Jose
Andrade, and Kevin A. testified at trial. More specifically, Dr. Manuel testified
concerning Kevin A.‟s diagnosis of schizoaffective disorder and his history of
conservatorship since 2006, his refusal to take medications, and his assaultive conduct.
She opined Kevin A. was gravely disabled because she did not believe he “would be able
to provide for his basic needs if he were allowed off conservatorship.” Vong Chang
testified Kevin A., whom he sees at least once a week, was not ready to live
independently. Chang testified regarding Kevin A.‟s numerous failed placements in
locked facilities and his refusal regarding an augmented board and care facility option.
Deputy Andrade testified regarding the events of August 2013, wherein Kevin A. was
believed to have assaulted his elderly mother and caused damage to a neighbor‟s
property. The deputy also testified about Kevin A.‟s actions and demeanor on that
occasion. Finally, Kevin A. testified concerning his education and career with the mental
health department as a licensed clinical social worker prior to the commencement of
conservatorship proceedings. Kevin A. further testified his diagnosis of his mental illness
is “autism … the belief that you can‟t speak out the emotions you feel,” and he believed
he also suffered from “Asperger‟s … [the] insight you have about how you speak out.”
He did not agree with the earlier diagnoses of schizophrenia and paranoia, noting the
“diagnosis has changed throughout the course of [his] treatment.” Kevin A. also testified
about his plan for living independently were the conservatorship to end.
         Following the court trial, the petition was granted and the Public Conservator was
reappointed for the period between December 18, 2014, and December 18, 2015.
Kevin A. was to be detained at the Marie Green Psychiatric Center. It was further
ordered Kevin A. not possess a driver‟s license, not enter into a contract or transaction
involving more than $50, that he have neither the right to refuse nor consent to treatment


                                              4.
relating to his grave disability or routine medical treatment, and that he not possess a
firearm. This appeal followed.
                                        DISCUSSION
Waiver of Jury Trial
       Kevin A. argues the trial court erred in accepting a waiver of jury trial over his
objection. Kevin A. maintains the “law supports the proposition that the attorney may
waive rights only if the attorney asserts that he or she is conveying the specific request of
the client to waive the right.” On the other hand, the Public Conservator contends
California law permits an attorney to waive a client‟s statutory right to jury trial over the
client‟s objection. Moreover, the Public Conservator argues that even if personal waiver
is required by the conservatee, Kevin A. forfeited his right to jury trial by failing to make
a timely demand.
       A.       Proceedings Below
       Immediately following a hearing held pursuant to People v. Marsden (1970) 2
Cal.3d 118, in which the court denied Kevin A.‟s apparent request to replace his attorney,
the following colloquy occurred:

             “THE COURT: [L]et‟s go ahead. I do believe the other parties are
       back here. They may come back into court now that we‟ve had this
       confidential hearing.

              “Okay. We‟re going back on record with all parties present here in
       the matter of the conservatorship of [Kevin A.] [¶] …[¶] … I think we‟re
       ready to proceed. The matter was assigned to this court for a jury trial.

                “But, [conservatee‟s counsel], you wish to be heard on that—that
       issue.

              “[CONSERVATEE‟S COUNSEL]: Yes, your Honor. I‟m prepared to
       enter a waiver of jury trial at this point and have a court trial in this case.
       And I have the authority of People vs.—Conservatorship of Maldonado,
       173 Cal.App.3d 144.

                “THE COURT: Okay.



                                               5.
      “[CONSERVATEE‟S COUNSEL]: I‟m sorry. Yes. I‟d like to enter
waiver of jury trial pursuant to the case of Conservatorship of Maldonado.

       “THE COURT: [Does] petitioner wish to be heard on that issue?

      “[PUBLIC CONSERVATOR‟S COUNSEL]: We have no objection to
waiving the jury trial today, your Honor.

       “THE COURT: Okay. [Kevin A.]

       “[KEVIN A.]: I—I would like a full jury trial, please, your Honor,
for today.

       “THE COURT: What‟s your position with regard to your client‟s
wish, [conservatee‟s counsel]?

       “[KEVIN A.]: Denial of due process.

        “[CONSERVATEE‟S COUNSEL]: I believe that because the jury trial
right in this case is a statutory right, it could be waived by counsel. It could
be waived by [Kevin A.]‟s attorney.

        “THE COURT: I take it, you know, goes without saying that you
believe what‟s in your client‟s best interest to waive statutory right to jury
trial under the circumstances that exist at this time.

       “[CONSERVATEE‟S COUNSEL]: Yes, your Honor.

        “THE COURT: Okay. I‟m going to grant the waiver. My
understanding is for conservatorship proceedings, it‟s a statutory right, and
it‟s counsel‟s determination that it‟s in his client‟s best interest to do so; so,
I find that that‟s a valid waiver, and I‟ll grant that waiver.

       “[KEVIN A.]: It‟s—it‟s invalid. Your Honor, for a clarifying
question—can I ask a clarifying question?

       “THE COURT: Talk to your attorney ….

       “[KEVIN A.]: I can‟t ask a clarifying question?

       “THE COURT: You cannot, sir.

       “[KEVIN A.]: Okay.

       “THE COURT: Do you want to take a break, talk to your lawyer.



                                        6.
              “[KEVIN A.]: I had a quick question. Don‟t take a break. Just one
       question.

              “Your Honor, he doesn‟t makes [sic] sense. He says I don‟t have a
       constitutional right to a jury trial. What are we here for? I don‟t have the
       constitutional right to have a trial? Why am I here?

              “THE COURT: Because we‟re going to have a trial in front of the
       Court; not a jury.

            “[KEVIN A.]: He said I have a constitutional right to have a jury.
       Why am I not—

              “THE COURT: No, you do not.

              “[KEVIN A.]: I do not have a constitutional right?

              “THE COURT: You only have a right by California statute, sir. That
       statutory right is different from a constitutional right and may be waived by
       your attorney if he feels it‟s appropriate to do so. [He] has made that
       determination, so the Court has accepted that.”
       B.     The Law and Our Analysis
       In August 2015, the California Supreme Court decided two cases that guide our
decision here: People v. Blackburn, supra, 61 Cal.4th 1113 and People v. Tran, supra,
61 Cal.4th 1160. In Blackburn, the high court was faced with the question of whether a
trial court must personally advise a mentally disordered offender (MDO) of his or her
right to a jury trial, and whether the trial court must obtain a personal waiver of that right
from the offender before conducting a bench trial to extend the MDO commitment.
(People v. Blackburn, supra, at p. 1116.) In the companion case, Tran, the question
before the court presented a similar rights and waiver issue wherein the extension of an
involuntary commitment was preceded by the original commitment after the individual
pleaded not guilty by reason of insanity (NGI) to a criminal offense. (People v. Tran,
supra, at p. 1163.)




                                              7.
       In this case, the statutory language differs somewhat from that at issue in
Blackburn and Tran. Nevertheless, we conclude the high court‟s holdings determine the
outcome of this LPS conservatorship proceeding.
       In Blackburn, the California Supreme Court held “the trial court must advise the
MDO defendant personally of his or her right to a jury trial and, before holding a bench
trial, must obtain a personal waiver of that right from the defendant unless the court finds
substantial evidence—that is, evidence sufficient to raise a reasonable doubt—that the
defendant lacks the capacity to make a knowing and voluntary waiver, in which case
defense counsel controls the waiver decision.” (Blackburn, at p. 1116.) In Tran, it held a
“trial court must advise the NGI defendant personally of his or her right to a jury trial
and, before holding a bench trial, must obtain a personal waiver of that right from the
defendant unless the court finds substantial evidence that the defendant lacks the capacity
to make a knowing and voluntary waiver, in which case defense counsel controls the
waiver decision.” (Tran, supra, at p. 1163.)
       Here, in the citation accompanying the petition for reappointment of
conservatorship over his person and estate, Kevin A. was advised as follows:

       “4. You have the right to appear at the hearing and oppose the petition.
       You have the right to hire an attorney of your choice to represent you. The
       court will appoint an attorney to represent you if you are unable to retain
       one. You must pay the cost of that attorney if you are able. You have the
       right to a jury trial if you wish.” (Italics added; see Prob. Code, § 1823.)
Section 5350 provides, in relevant part, the “procedure for establishing, administering,
and terminating a conservatorship under this chapter shall be the same as that provided in
Division 4 (commencing with Section 1400) of the Probate Code ….” Probate Code
section 1827 provides: “The court shall hear and determine the matter of the
establishment of the conservatorship according to the law and procedure relating to the
trial of civil actions, including trial by jury if demanded by the proposed conservatee.”
Section 1828 of the Probate Code requires the court to “inform the proposed conservatee”



                                               8.
of his or her “right to oppose the proceeding, to have the matter of the establishment of
the conservatorship tried by jury, to be represented by legal counsel if the proposed
conservatee so chooses, and to have legal counsel appointed by the court if unable to
retain legal counsel.” (Prob. Code, § 1828, subd. (a)(6).) Thereafter, the court must
“consult the proposed conservatee to determine the proposed conservatee‟s opinion”
regarding the “establishment of the conservatorship,” the “appointment of the proposed
conservator” and any limitation to his or her legal capacities. (Prob. Code, § 1828, subd.
(b)(1)-(3).)
       Acknowledging civil commitment proceedings involve certain significant
deprivations of liberty, and recognizing that not all “constitutional protections available
in the criminal context apply” in civil commitment proceedings, the California Supreme
Court was careful to distinguish its earlier holding in People v. Masterson (1994) 8
Cal.4th 965. (People v. Blackburn, supra, 61 Cal.4th at pp. 1119-1121.) In that case, it
held counsel could properly waive a defendant‟s right to jury trial in a Penal Code section
1368 proceeding, “„even over the defendant‟s objection.‟” (Blackburn, at p. 1120.)

              “[W]e began by citing the general proposition that „“counsel is
       captain of the ship”‟ and has authority to bind the client in procedural
       aspects of litigation. [Citation.] But we did not rely on that general
       proposition to resolve the case, nor did we „decide whether … there are
       some statutory rights that counsel may not waive.‟ [Citation.] „Rather,‟ we
       said, „we base our conclusion upon an examination of the nature of
       competency proceedings as well as the jury trial right at issue.‟ [Citation.]

               “In addition to noting that the right to a jury trial in a competency
       proceeding is „statutory not constitutional,‟ we observed in Masterson that
       the applicable statutes neither require an advisement nor address the issue
       of waiver. [Citation.] We explained: „The sole purpose of a competency
       proceeding is to determine the defendant‟s present mental competence, i.e.,
       whether the defendant is able to understand the nature of the criminal
       proceedings and to assist counsel in a rational manner. [Citations.]
       Because of this, the defendant necessarily plays a lesser personal role in the
       proceeding than in a trial of guilt. … Crucial to our reasoning was the fact
       that „“[a Penal Code] section 1368 hearing is held only after there has been
       a prima facie showing of mental incompetence.”‟ [Citations.] „“Of


                                             9.
       necessity, therefore, defendant‟s attorney must play a greater role in making
       fundamental choices for him, and cannot be expected to seek approval of
       strategic decisions made in the course of obtaining and presenting proof of
       incompetence.”‟ [Citation.]

               “Thus, Masterson focused on the particular statutory scheme and
       nature of the „“special proceeding”‟ at issue. [Citation.] The statutes at
       issue in Masterson make clear that there has already been a prima facie
       showing of incompetence by the time a defendant faces a competency
       hearing, and thus it is sensible that counsel‟s decisions may trump the
       defendant‟s. In resolving the present case, we focus our attention on the
       statutory scheme for extending an MDO defendant‟s commitment and on
       the nature and purpose of those proceedings.” (People v. Blackburn, supra,
       61 Cal.4th at pp. 1120-1121.)
The MDO commitment has the dual purpose of protecting the public and treating
severely mentally ill offenders. (People v. Blackburn, supra, 61 Cal.4th at p. 1122.) The
NGI commitment scheme shares the same purpose. (People v. Tran, supra, 61 Cal.4th at
p. 1168.) We note the LPS Act shares those purposes as well. (Conservatorship of John
L. (2010) 48 Cal.4th 131, 150.)
       The Blackburn court went on to hold that the relevant statute, Penal Code section
2972, requires the court to advise the MDO defendant, on the record, of his or her right to
a jury trial. (People v. Blackburn, supra, 61 Cal.4th at p. 1124.) Similarly, in Tran, the
court held Penal Code section 1026.5, subdivision (b)(3) also requires the court to advise
the NGI defendant of his or her right to jury trial on the record in a court proceeding.
(People v. Tran, supra, 61 Cal.4th at pp. 1163, 1166.) Both courts determined the
relevant statutes allow for waiver by the MDO defendant or the NGI defendant
personally, unless there is substantial evidence the defendant lacks the capacity to make a
knowing and voluntary waiver. In such a situation, control of the waiver decision
belongs to the defendant‟s counsel, despite the defendant‟s objection. (Blackburn, supra,
at pp. 1116, 1130; Tran, supra, at pp. 1163, 1167.)
       In both Blackburn and Tran, neither defendant was advised by the trial court of his
right to a jury trial, nor did either personally waive that right. Neither trial court found


                                              10.
the defendant lacked the capacity to knowingly and voluntarily waive that right. (People
v. Blackburn, supra, 61 Cal.4th at p. 1116; People v. Tran, supra, 61 Cal.4th at p. 1163.)
Given the errors identified, the high court considered the appropriate remedy.
(Blackburn, supra, at pp. 1132-1138.) It determined “that when a trial court errs in
completely denying an MDO defendant the right to a jury trial under [Penal Code]
section 2972(a), the error requires automatic reversal.” (Id. at p. 1136.) The Tran court
concluded similarly: in light of such error, automatic reversal is required. (Tran, supra,
at pp. 1169-1170.)
        Here, even assuming Kevin A. was advised by the trial court on the record of his
right to a jury trial, Kevin A. did not voluntarily waive that right in favor of a court trial.
To the contrary, Kevin A. very plainly expressed his wish to have a jury hear the matter
despite his attorney‟s statements: “I—I would like a full jury trial, please, your Honor,
for today.”
        Instead, the trial court accepted the waiver proffered by Kevin A.‟s attorney over
Kevin A.‟s express wishes. The court made no specific finding that Kevin A. lacked the
capacity to decide for himself whether to proceed before a jury. The court‟s cursory
reference to Kevin A.‟s counsel acting in his best interest is insufficient in light of the
holdings in Blackburn and Tran. Therefore, Kevin A. was completely denied his
statutory right to a jury trial despite his express wish to proceed with a jury.
        Further, Masterson, upon which the Public Conservator relies, does not require a
different result. Unlike Masterson, here there was no prima facie showing of Kevin A.‟s
incompetency. The Penal Code section 1368 proceeding at issue in Masterson is a
special proceeding requiring the attorney to play a greater role in light of the showing of
mental incompetence. (People v. Masterson, supra, 8 Cal.4th at p. 972; People v.
Blackburn, supra, 61 Cal.4th at p. 1121.) Masterson is thus distinguishable from this
case.




                                              11.
       Our decision today does not conflict with our previous decision on a related LPS
issue. In Conservatorship of Mary K. (1991) 234 Cal.App.3d 265, while we found an on-
the-record personal waiver was not required of a proposed conservatee, we did determine
counsel could validly waive a conservatee‟s right to jury trial. Yet our holding there is
factually distinguishable because the conservatee herself wanted a court trial rather than a
jury trial. (Id. at p. 269.) It is of great significance that Kevin A. expressed a desire
contrary to that expressed by his attorney, and in no way sought to waive a right afforded
him.
       We note also the Sixth Appellate District in Conservatorship of Maldonado (1985)
173 Cal.App.3d 144 recognized the right to a jury trial was statutory and could be waived
by the conservatee‟s counsel. In that case, however, Maldonado did “not contend his
attorney was without actual authority to waive a jury trial on his behalf.” (Id. at p. 148.)
We know that was not the case below. The record here clearly establishes Kevin A. did
not desire to waive his right to a jury trial, nor did he acquiesce when his attorney
indicated he wished to waive Kevin A.‟s right in favor of a court trial. This case is
factually very different from Maldonado.
       Further, this case is unlike Conservatorship of John L., supra, 48 Cal.4th 131.
There, counsel for John L. advised the court John L. did not wish to contest
conservatorship, nor did he wish to be present in court for the proceedings. (Id. at p.
141.) The court accepted that counsel was representing her client‟s wishes to waive his
right to contest the proceedings and to be present for them, and it affirmed the Court of
Appeal‟s holding that John had not been denied his state and federal constitutional due
process rights. (Id. at pp. 142-157.) Here, counsel for Kevin A. did not proceed in
accordance with Kevin A.‟s express consent. In fact, he proceeded in direct
contravention thereto. Kevin A. did not intend to waive his right to a jury trial whereas
John L. chose to waive his right to contest the proceedings and his right to be present.




                                              12.
       The Public Conservator‟s reliance on People v. Barrett (2012) 54 Cal.4th 1081 is
misplaced. As the high court explained in Blackburn, “many persons who suffer from
mental illness or related disorders can understand the nature of legal proceedings and
determine their own best interests.” (People v. Blackburn, supra, 61 Cal.4th at p. 1128.)
The court recognized a distinction between developmental disability—a lifelong
condition—and mental illness. (Ibid.) “The potentially transitory and treatable nature of
mental illness and the potentially limited areas of functioning impaired by such illness
preclude any categorical inference that an MDO defendant facing a commitment
extension proceeding cannot competently decide whether to waive a jury trial.” (Id. at p.
1129.) We conclude the same reasoning is applicable to a commitment extension in an
LPS proceeding. Hence, Kevin A.‟s condition should “preclude any categorical
inference” that he is unable to make a determination regarding his right to a jury trial.
       Lastly, the Public Conservator asserts that even if the trial court erred by accepting
counsel‟s waiver of Kevin A.‟s right to a jury trial, Kevin A. forfeited that right by failing
to make a timely demand in the first instance. We need not address this assertion,
however, because the Public Conservator has forfeited her own argument by failing to
include any citations to the record in that regard.
       Rule 8.204(a)(1)(C) of the California Rules of Court requires all appellate briefs to
“[s]upport any reference to a matter in the record by a citation to the volume and page
number of the record where the matter appears.” It is well-established that “„[i]f a party
fails to support an argument with the necessary citations to the record, … the argument
[will be] deemed to have been waived. [Citation.]‟” (Nwosu v. Uba (2004) 122
Cal.App.4th 1229, 1246.) This rule applies to matters referenced at any point in the brief,
not just in the statement of facts. (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 96,
fn. 2.)3

       3We note   additionally that while the record includes minute orders dated, for example,
September 12, October 3, and October 10, 2014, reporter‟s transcripts corresponding to those
dates are not a part of the record on appeal. Were we to address the Public Conservator‟s

                                               13.
       Finally, in light of our finding the trial court erred in accepting counsel‟s waiver of
Kevin A.‟s right to a jury trial, we must address the appropriate remedy. After
consideration of the same, both the Blackburn and Tran courts concluded such error
requires automatic reversal. (People v. Blackburn, supra, 61 Cal.4th at p. 1136; People v.
Tran, supra, 61 Cal.4th at pp. 1169-1170.) Accordingly, we will reverse. For these
reasons, we do not address Kevin A.‟s other contentions on appeal.
                                        DISPOSITION
       The order granting the petition for conservatorship is reversed.

                                                             ___________________________
                                                                                 PEÑA, J.
WE CONCUR:


 ________________________________
DETJEN, Acting P.J.


 ________________________________
SMITH, J.




argument concerning forfeiture, we would be hesitant to find a forfeiture where it appears the
record is incomplete.


                                               14.
