Filed 7/31/14 P. v. Ramirez CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A138461
v.
JESSE RAMIREZ,                                                       (Alameda County
                                                                     Super. Ct. No. 89-032231)
         Defendant and Appellant.


         Jesse Ramirez appeals an order of the trial court establishing a mental health
conservatorship under the Lanterman-Petris-Short Act (Welf. & Inst. Code,1 § 5000 et
seq., 5350 et seq.) (the Murphy conservatorship). He contends the evidence is
insufficient to show he is gravely disabled for purposes of section 5008, subdivision
(h)(1)(B), and that it does not support the orders requiring him to submit to treatment.
We shall reverse the order to the extent it grants the conservator authority to authorize
routine medical treatment, and otherwise affirm.
                                    I. MURPHY CONSERVATORSHIP
         Pursuant to Penal Code section 1367, a criminal defendant who is mentally
incompetent, that is, unable to understand the nature of the proceedings or assist counsel
in the defense, cannot be tried. Under our state’s statutory scheme in such cases, “[a]
defendant who, as a result of a mental disorder, is adjudged not competent to stand trial
on a felony charge may be committed to a state hospital for no more than three years.


         1
             All undesignated statutory references are to the Welfare and Institutions Code.


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([Pen. Code,] §§ 1367, subd. (b), 1370, subds. (a), (c); People v. Karriker (2007) 149
Cal.App.4th 763, 780 [(Karriker)].) If, at the end of the three-year period, the medical
staff determines there is no substantial likelihood the defendant will gain mental
competence in the foreseeable future, the defendant must be returned to the court for
further proceedings. [Citations.] The three-year period under section 1370, subdivisions
(a) and (c), applies to the aggregate of all commitments for treatment for incompetence
regarding the same charges. [Citation]. [¶] Once an incompetent defendant has been
committed for the maximum commitment period, if it appears to the court that the
defendant is ‘gravely disabled,’ the court shall order the conservatorship investigator to
initiate a ‘Murphy conservatorship.’ (People v. Karriker, supra, 149 Cal.App.4th at
pp. 775–777, 781; see [Pen. Code,] § 1370, subd. (c)(2); Welf. & Inst. Code, § 5008,
subd. (h)(1)(B).) The court may impose a Murphy conservatorship if it finds the
defendant, as a result of a mental disorder, ‘ “represents a substantial danger of physical
harm to others.” ’ [Citations.] Alternatively, the court can dismiss the charges and order
the defendant released, without prejudice to the initiation of alternative commitment
proceedings under the Lanterman-Petris-Short Act. [Citations.]” (People v. Reynolds
(2011) 196 Cal.App.4th 801, 806, fn. omitted.)
       Such a conservatorship automatically terminates after one year; if the conservator
determines a conservatorship is still required at that point, the conservator may petition
the superior court for reappointment for another one-year period. (Welf. & Inst. Code,
§ 5361; Karriker, supra, 149 Cal.App.4th at p. 778.)
                                    II. BACKGROUND
       Ramirez was charged with three counts of arson: two counts of arson in that he
caused to be burned separate structures on Telegraph Avenue in Berkeley (Pen. Code,
§ 451, subd. (c)), and one count of arson of property of another in that he burned or
caused to be burned property on Telegraph Avenue in Berkeley (Pen. Code, § 451, subd.




                                             2
(d)).2 According to a report prepared by Ramirez’s conservator, these events took place
in 2006, and in 2007 Ramirez was found incompetent to stand trial and hospitalized at
Napa State Hospital. In 2008, the hospital concluded that, due to the cumulative effects
of schizophrenia and brain damage, he remained incompetent to stand trial, and
recommended a conservatorship. In 2009, Ramirez was evaluated and found to be both
incompetent and dangerous and placed on a Murphy conservatorship. The
conservatorship was renewed in 2010 and 2011.
       The conservator sought reappointment in late 2012, shortly before the most recent
conservatorship was due to expire. The petition alleged that Ramirez had been examined
by two practitioners who had determined he was still gravely disabled as a result of a
mental disorder for purposes of section 5008, subdivision (h)(1)(B). Ramirez stipulated
that he remained incompetent pursuant to Penal Code section 1370 and that the
indictment had not been dismissed. At the time of the trial, he had been living at an
unlocked board and care home for over two years.
       A bench trial on the petition took place in March 2013. Dr. Jennifer Kirkland, a
psychologist who had evaluated Ramirez, testified as an expert. Ramirez had been
diagnosed with schizophrenia and cognitive disorder.
       Dr. Kirkland described the “positive” and “negative” symptoms of schizophrenia.
The positive symptoms are such things as hallucinations and delusions, and the negative
symptoms include an impaired ability to express emotion, social withdrawal, difficulty
maintaining routines, and a loss in day-do-day functioning, such as meals, sleep, and
hygiene. Ramirez’s positive symptoms had improved significantly over the years, as he
had been consistently medicated by means of injections, but he still showed signs of
being “internally preoccupied” and made verbalizations that might be delusional. Among
his negative symptoms, he tended to stay up late and sleep through the day, he had
difficulty holding down a volunteer job and a daily routine, and he would become

       2
        The record on appeal does not contain the records of the underlying case. This
summary of the charges is based on statements made by the trial court, apparently while
reviewing the charging document.


                                             3
suspicious, withdrawn, belligerent, and threatening. When he received intensive
encouragement from support staff his behavior improved, but without that support, he
would revert to his earlier behavior patterns.
       Ramirez had been receiving injectable forms of his medications because he had a
history of failing to take pills voluntarily. He did not seem to see the correlation between
his use of medication or his lifestyle and his improved mental status. He had stated
consistently that he did not believe his medication was helpful and that he did not want to
take it. However, when Dr. Kirkland met with Ramirez in November 2012, he said that
in the past medications had controlled his psychotic symptoms, but that he did not have
those symptoms now. In the past, Ramirez had not been consistent in receiving other
mental health services, such as group support, and did not think he needed them.
       Dr. Kirkland was of the opinion that Ramirez posed a substantial danger of
physical harm to others as a result of his mental disorder. Due to his belligerence, he
“needed a lot of limit setting in order to stay de-escalated,” and he had some
preoccupation with violence. He would gather grass, dandelions, and bushes, put them
into a blender, and consume them; he filtered coffee through his underwear and sold it to
other residents of his board and care facility, he sold cigarettes to residents at higher
prices after hours, and he ran poker games. He had acted toward other residents of the
board and care home in a threatening and agitated manner, which required intervention.
Ramirez had a history of illegal substance abuse, which could exacerbate his mental
health issues, make his medications less effective, and “trigger acting-out behavior that is
dangerous.” Even caffeine could make medications less effective, disrupt sleep, impair
judgment, and increase agitation and belligerence. When Ramirez was in a prior
placement, he would set fires. He also smoked in his room, which was considered a red
flag for the re-emergence of arson-related behavior.
       Ramirez had told Dr. Kirkland that if he were no longer under a conservatorship,
he would decline services, go to a board and care home in Sacramento, and resume a
relationship with a woman there. It appeared, however, that the woman in question was
married and that Ramirez’s interest in her might be one-sided. Dr. Kirkland noted that


                                                 4
Ramirez had no plan for ongoing treatment in Sacramento. In the absence of treatment,
he would probably return to his previous pattern of substance abuse and the symptoms of
his schizophrenia would return.
       Dr. Kirkland acknowledged that Ramirez had been calm during his evaluation,
even when asked about his problematic behaviors, and that the owner of the board and
care facility was physically much smaller than Ramirez.
       During cross-examination by Ramirez’s counsel, Dr. Kirkland testified about a
recent medical emergency. Ramirez was unable to breathe properly and was taken to the
hospital. He refused treatment, and the owner of the board and care home was unable to
reach the conservator in order to obtain her consent to the treatment on Ramirez’s behalf.
       Another psychologist who had evaluated Ramirez, Dr. Charles Meyers, also
testified as an expert. He opined that Ramirez suffered from a severe mental disorder,
and that he had been diagnosed with schizophrenia, disorganized type, which was in
partial remission as a result of the antipsychotic medication that the staff at his board and
care home insisted he take. Ramirez had also been diagnosed with polysubstance abuse,
which was in “institutional remission,” and cognitive disorder, not otherwise specified,
due to head injuries.
       When Dr. Meyers evaluated Ramirez in October 2012, Ramirez exhibited
evidence of a mental disorder, but to a lesser extent than when Dr. Meyers had examined
him three years previously. He showed signs of paranoia, and thought the accusation
against him was a plot, that people were “ganging up on him and saying things that were
not true,” and that the statements that he was mentally ill and needed medication were
part of a plot. Ramirez said he was not mentally ill, that his medications were
unnecessary, and that if he were free to follow his own wishes, he would stop taking
them. One of the main reasons he wanted to end his conservatorship was his desire to
stop taking medications, which made him tired.
       Dr. Meyers discussed Ramirez’s pending charges with him. In 2009, Ramirez had
said the offense “was a response to persecution, that there were a group of people called
Okies who were blue-eyed, blonde, and Italian and Russian, and he had set the fires to get


                                              5
back at them and also to keep warm.” During the 2012 evaluation, Ramirez told Dr.
Meyers he set the fire to keep warm on a cold night.
       Dr. Meyers opined that Ramirez continued to represent a substantial danger of
physical harm to others. He based this conclusion on Ramirez’s history, in combination
with his stated intention to stop taking his medications if he had the opportunity. If he
stopped his medications, Dr. Meyers believed, he would “again become volatile and
exaggeratedly mentally ill, and . . . he will lose control that he now has,” and would again
act on his paranoid delusions.
       Before testifying, Dr. Meyers had contacted the conservator to ask for an update.
The conservator’s office sent him a report, prepared in February 2013, which stated that
Ramirez had been taken to the emergency room because he could not breathe properly.
Ramirez had emphysema as a result of his smoking. He left the emergency room against
medical advice, saying that he did not want treatment and that if he went to the hospital,
he would not be able to smoke. The conservator was contacted to try to force Ramirez to
return and receive treatment. Dr. Meyers also received accounts of the episode from the
board and care home and from Ramirez’s case manager.
       Ramirez testified at trial. He first stated that he did not believe he was mentally
ill, although he believed he was disabled because he did not have parents to support him
and get him to work; he later said he did not “completely disagree” with his diagnosis
because in the past he had heard voices telling him to do “things that were wrong.” He
testified that he had not heard voices recently, but went on to say that “sometimes some
of these figures out they can talk to me in my head and they can bother me, and I don’t
know why,” and that just a couple of days before the trial, “somebody was telling me to
try to . . . do something wrong, . . . and I told them, ‘No, just leave me alone.’ I just said
that, and they left me alone.” When asked if he ever did what the voices asked, he
described a time when he was in Sacramento and a voice told him to go back to Berkeley,
“because I was growing hair on my back a little bit, so I wouldn’t get raped and turn—
and turn to a freak or something.” After he got to Berkeley, he “got[] into trouble,



                                               6
because there was somebody going around burning buildings and setting forests on fire
and stuff, and I got blamed for it.”
       Ramirez did not think the medications he took helped him deal with the voices.
He believed the medications were making his vision worse, were making him grow taller,
and improved his vocabulary. He did not think he needed antipsychotic medication, and
would not take it if he had the choice. He wanted the conservatorship to end because he
wanted to go to Sacramento to see his girlfriend and see his mother and step-father. He
said he and his girlfriend wanted to get married, but first he would have to divorce his
current wife, whose last name he did not know. He had not seen his mother for about
seven years. He would live in a board and care home. He said he would arrange to take
his medication in Sacramento.
       The trial court extended the Murphy conservatorship until December 2, 2013. As
part of its ruling, the court ordered: “The conservator may require the conservatee to
receive treatment related specifically to remedying or preventing the recurrence of the
conservatee’s grave disability, including giving consent to the use of psychotropic
medications, and conservator has the authority to authorize routine medical treatment.”
This timely appeal ensued.3
                                       III.   DISCUSSION
   A. Evidence That Ramirez Is Gravely Disabled
       Ramirez first argues the record does not contain evidence that he is gravely
disabled for purposes of section 5008, subdivision (h)(1)(B). Under that statutory
provision, “gravely disabled” means “[a] condition in which a person, has been found
mentally incompetent under Section 1370 of the Penal Code and all of the following facts
exist: [¶] (i) The indictment or information pending against the person at the time of
commitment charges a felony involving death, great bodily harm, or a serious threat to

       3
         The one-year extension of the conservatorship has by now expired, and the
appeal is therefore technically moot. We shall nevertheless consider it on the merits
because “it raises issues that are capable of recurring, yet evading review because of
mootness.” (Conservatorship of George H. (2008) 169 Cal.App.4th 157, 161, fn. 2.)


                                              7
the physical well-being of another person. [¶] (ii) The indictment or information has not
been dismissed. [¶] (iii) As a result of a mental health disorder, the person is unable to
understand the nature and purpose of the proceedings taken against him or her and to
assist counsel in the conduct of his or her defense in a rational manner.” In particular,
Ramirez argues there is insufficient evidence that the felonies of which he is accused
involve “death, great bodily harm, or a serious threat to the physical well-being of
another person.” He contends that arson may be committed without a serious threat of
harm to a person’s physical well-being, and that there is no evidence that such a threat in
fact existed in connection with the crimes he is alleged to have committed. (See People
v. Baker (2012) 204 Cal.App.4th 1234, 1246 [because inhabited structure may be
temporarily unoccupied, conviction for arson of inhabited structure in violation of Penal
Code section 451, subdivision (b) does not in itself prove arson posed substantial danger
of physical harm to others].)
       The procedural posture of this case leads us to reject Ramirez’s contention. The
petition before the trial court was not for an initial Murphy conservatorship, but a renewal
of a conservatorship that had already been approved twice. In approving the
conservatorship in 2009, the trial court necessarily found Ramirez “gravely disabled” for
purposes of section 5008, subdivision (h)(1)(B). Some of the findings encompassed in
that conclusion are subject to change, and hence are appropriately reexamined in
subsequent conservatorship proceedings; for instance, whether the indictment has been
dismissed and whether the defendant is able to participate in his or her own defense.
(§ 5008, subd. (h)(1)(B)(ii) & (iii).) The question of whether the qualifying offense
involves “death, bodily harm, or a serious threat to the physical well-being of another
person,” however, is incapable of change. (See People v. Parham (2003) 111
Cal.App.4th 1178, 1182 [in mentally disordered offender proceeding, applying collateral
estoppel to question whether severe mental disorder was factor in commission of
qualifying offense]; see also § 5008, subd. (h)(1)(B)(i).)
       Applying this rule, the court in People v. Lopez (2006) 146 Cal.App.4th 1263,
1276, concluded a person who had been committed under the Sexually Violent Predators


                                             8
Act (SVPA) (§ 6600 et seq.) could be precluded by the doctrine of collateral estoppel in a
subsequent SVPA proceeding from relitigating the issue of whether his or her conviction
constituted a “ ‘sexually violent offense against two or more victims.’ ” In doing so, the
court explained that “[c]ollateral estoppel applies when the following requirements are
met: ‘ “ ‘First, the issue sought to be precluded from relitigation must be identical to that
decided in a former proceeding. Second, this issue must have been actually litigated in
the former proceeding. Third, it must have been necessarily decided in the former
proceeding. Fourth, the decision in the former proceeding must be final and on the
merits. Finally, the party against whom preclusion is sought must be the same as, or in
privity with, the party to the former proceeding.’ ” ’ ” Lopez, 146 Cal.App.4th at
p. 1273.)
         These authorities lead us to conclude that once the question of whether the
charged offense involved death, great bodily harm, or a serious threat to the physical
well-being of another person has been litigated and decided in an initial proceeding to
establish a Murphy conservatorship, the doctrine of collateral estoppel bars it from being
relitigated. Indeed, Ramirez concedes as much in his reply brief. He argues, however,
that there is no evidence that in the original conservatorship proceedings, the trial court
applied the proper burden of proof, which he asserts is proof beyond a reasonable doubt
that the charged offense met the standards of section 5008, subdivision (h)(1)(B)(i). We
recognize that the party asserting a collateral estoppel has the burden to prove it. (Kemp
Bros. Construction, Inc. v. Titan Electric Corp. (2007) 146 Cal.App.4th 1474, 1482.) It
is well established, however, that a trial court is presumed to have followed the applicable
law (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956), and
Ramirez makes no attempt to show that the trial court that made the initial
conservatorship findings failed to do so. On the particular facts of this case—in which
the original court must necessarily have found the charged offense met the statutory
standards, and in which there is no showing whatsoever that it failed to perform its
duty—we agree with the Attorney General that Ramirez is barred from relitigating this
point.


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   B. Scope of Conservator’s Authority
       Section 5358, subdivision (b) provides: A conservator shall . . . have the right, if
specified in the court order, to require his or her conservatee to receive treatment related
specifically to remedying or preventing the recurrence of the conservatee’s being gravely
disabled, or to require his or her conservatee to receive routine medical treatment
unrelated to remedying or preventing the recurrence of the conservatee’s being gravely
disabled. Except in emergency cases in which the conservatee faces loss of life or serious
bodily injury, no surgery shall be performed upon the conservatee without the
conservatee’s prior consent or a court order obtained pursuant to section 5358.2
specifically authorizing that surgery.”
       Ramirez contends the evidence does not support the trial court’s grant of authority
to require him to submit either to routine medical care unrelated to his grave disability or
to care related to that disability. As he points out, the conservator had the burden to
produce evidence to support any special disabilities imposed on Ramirez.
(Conservatorship of Walker (1989) 206 Cal.App.3d 1572, 1577–1578.) As explained in
Conservatorship of George H., supra, 169 Cal.App.4th at p. 165, “ ‘If a person is found
gravely disabled and a conservatorship is established, the conservatee does not forfeit
legal rights or suffer legal disabilities merely by virtue of the disability. [Citations.] The
court must separately determine the duties and powers of the conservator, the disabilities
imposed on the conservatee, and the level of placement appropriate for the conservatee.
[Citations.] The party seeking conservatorship has the burden of producing evidence to
support the disabilities sought, the placement, and the powers of the conservator, and the
conservatee may produce evidence in rebuttal.’ ”
       The evidence is ample to support the order authorizing the conservator to “require
the conservatee to receive treatment related specifically to remedying or preventing the
recurrence of the conservatee’s grave disability, including giving consent to the use of
psychotropic medications.” There was evidence that Ramirez lacked insight into his
mental illness, that his illness had improved under medication, but that it would return in
the absence of psychotropic medications, that he did not believe his medications were


                                              10
helpful or necessary, and that he had said that if the conservatorship were ended, he
would stop taking his medications. On these facts, the trial court could reasonably
authorize the conservator to require mental health treatment.4
       We reach a different conclusion as to the trial court’s order granting the
conservator authority to authorize routine medical treatment. The only evidence
supporting this portion of the order was the evidence that Ramirez had suffered an
emergency when he could not breathe properly and he refused necessary treatment.5 The
evidence at trial showed that the conservator would have been able to authorize
emergency medical treatment in that situation, and the Attorney General does not argue
otherwise. (See K.G. v. Meredith (2012) 204 Cal.App.4th 164, 170 [in absence of court
order imposing disabilities or an emergency, conservator may not require conservatee to
receive medical treatment].) Nothing in the record shows that Ramirez—particularly in
the relatively stable mental condition he appears to be in—is unable to manage his own
routine medical care. Such evidence may exist, and if so, nothing we say is intended to
prevent it from being raised in any subsequent petitions to reappoint the conservator. On
this record, however, we conclude the evidence does not support the trial court’s order
insofar as it concerns Ramirez’s routine medical treatment.




       4
        We reject Ramirez’s contention, unsupported by citation to authority, that the
order denies him his constitutional right to equal protection. (See Horowitz v. Noble
(1978) 79 Cal.App.3d 120, 139 [court may treat as waived argument lacking citation to
authority].)
       5
        Ramirez’s counsel elicited testimony about this incident from Dr. Kirkland on
cross-examination. Dr. Meyers provided a more detailed narrative about this incident, to
which Ramirez objected on the ground it constituted inadmissible hearsay. On appeal,
Ramirez again contends Dr. Meyers’s testimony about this incident was inadmissible.
We would reach the same conclusion whether or not we considered the disputed
evidence.


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                                     IV. DISPOSITION
       The judgment is reversed to the extent it grants the conservator authority to
authorize routine medical treatment. In all other respects, the judgment is affirmed.




                                                 _________________________
                                                 Rivera, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Reardon, J.




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