Filed 2/28/14 Conservatorship of Hans A. CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 ONE


Conservatorship of the Person of HANS A.

THE PEOPLE,                                                          A138143

         Petitioner and Respondent,                                  (Alameda County
v.                                                                   Super. Ct. No. 02-053646)
HANS A.
         Objector and Appellant.


         Hans A. (conservatee) was charged with the murder of his father in 2004. After
his arrest, the conservatee was found not mentally competent to stand trial. When he
failed to regain competence within three years, he was made the subject of a “Murphy
conservatorship.”1 In early 2013, after a hearing, the probate court granted a petition to
extend the conservatorship for an additional year. The conservatee contends his attorney
erred in advising him not to speak about the killing of his father at the hearing and the
probate court erred in granting the conservator authority over medical decisions unrelated
to his mental disability. We affirm.




         1
        The proceeding is named after former Assemblyman Frank Murphy, who
authored the legislation creating this basis for civil commitment in 1974. (In re Polk
(1999) 71 Cal.App.4th 1230, 1235.)
                                    I. BACKGROUND
       The conservatee was charged with the murder of his father in 2004.2 He admitted
the killing to various law enforcement officers, explaining he was acting on instructions
from God. The following year, the conservatee was found incompetent to stand trial and
was transferred from jail to a state hospital. He was later found competent and returned
to jail, but he then refused medication, quickly regressed, and was found not competent
once more. When the conservatee failed to regain mental competence after three years,
he was made the subject of a Murphy conservatorship under Welfare and Institutions
Code section 5008, subdivision (h)(1)(B) and admitted to a rehabilitation center for
treatment. The conservatorship has since been renewed annually. At least by late 2012,
the murder charges were still pending against the conservatee, although, by operation of
statute, they were suspended by the finding of mental incompetence. (Pen. Code, § 1370,
subd. (a)(1)(B).)
       The district attorney filed a petition to renew the Murphy conservatorship on
January 7, 2013. At the hearing on the petition, the parties stipulated to a decision on the
basis of the reports of the two consulting psychiatrists. The consultants were unanimous
in concluding the conservatee remained gravely disabled, not competent to stand trial, a
substantial danger to others, and not competent to make decisions about his medical care,
both antipsychotic and otherwise.
       According to their reports, the conservatee does not consider himself mentally ill.
Although under treatment with antipsychotic medication, he remains preoccupied with
religious obsessions and convinced he is an agent of God. When his prophecy is
accepted by the public, he believes, he will be delivered by God, and his father will be




       2
        The appellate record does not contain any records from the criminal proceedings.
We base our account of the criminal proceedings on statements made in reports prepared
by the mental health professionals who evaluated the conservatee.


                                             2
resurrected.3 The conservatee consistently maintains that he does not need antipsychotic
medication. When permitted community passes in 2010, he used both alcohol and
marijuana. If permitted to leave treatment, he plans to discontinue antipsychotic
medication and obtain a permit for use of medical marijuana.
       As to the criminal proceeding, the conservatee plans to plead not guilty by analogy
to Abraham who, he believed, would not have been guilty of a crime had he followed
through on God’s instructions to sacrifice his son Isaac. The conservatee views a trial as
central to fulfilling his prophecy and is adamant in refusing to plead not guilty by reason
of insanity, except perhaps as a tactical maneuver after he has been found guilty.
       Following counsels’ argument at the hearing, the conservatee sought to read into
the record a three-page statement. Although he was permitted to read the first few
paragraphs requesting permission to establish a blog, his counsel advised the conservatee
to cease reading the statement on Fifth Amendment grounds when it began to address the
killing of his father. After discussion, the probate court proposed to accept the
conservatee’s statement under seal, allowing its review by the court without the risk of
self-incrimination. The conservatee agreed to this approach. The court later entered an
order extending the conservatorship.
                                    II. DISCUSSION
       The conservatee contends his attorney erred in advising him not to address the
court about the killing because “no action could be taken on the criminal charges” if the
conservatorship is terminated, even if he were found competent to stand trial. He also
argues the probate court’s order depriving him of the right to make medical decisions
unrelated to his mental disorder was not supported by substantial evidence.
A. Self-incrimination
       “ ‘It is well established that the Due Process Clause of the Fourteenth Amendment
prohibits the criminal prosecution of a defendant who is not competent to stand trial.’

       3
         The conservatee also harbors a “passion” for the return of Jon Gruden as head
coach of the Oakland Raiders, believing Gruden’s return would “persuade the world of
the righteousness of [the conservatee’s] cause.”


                                             3
[Citation.] . . . [¶] 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. [Citations.] If, at the end of the three-year period, the medical
staff determines there is no substantial likelihood the defendant will regain mental
competence in the foreseeable future, the defendant must be returned to the court for
further proceedings. [Citations.] . . . [¶] [I]f 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. Reynolds (2011) 196 Cal.App.4th 801, 806.)
       A Murphy conservatorship is one of two grounds for civil commitment under the
Lanterman-Petris-Short Act (LPS Act; Welf. & Inst. Code, § 5000 et seq.). (See People
v. Karriker (2007) 149 Cal.App.4th 763, 774–775.) Under Welfare and Institutions Code
section 5008, subdivision (h)(1)(B), a person is defined as “gravely disabled,” and
therefore subject to a conservatorship under section 5350, if the person has been charged
with a felony resulting in serious injury or death, the charges have not been dismissed,
and the person is not competent to stand trial. To address constitutional concerns, the
Supreme Court also requires, in addition to the statutory criteria, that a defendant subject
to a Murphy conservatorship be found to represent “a substantial danger of physical harm
to others” as a result of a “ ‘mental defect, disease, or disorder.’ ” (Conservatorship of
Hofferber (1980) 28 Cal.3d 161, 176–177 (Hofferber).)
       Welfare and Institutions Code section 5008, subdivision (h)(1)(B) was enacted in
direct response to In re Davis (1973) 8 Cal.3d 798 (Davis), which held that the indefinite
commitment of a defendant not competent to stand trial violates due process. Davis
required that a defendant found unlikely to regain competence within a reasonable time
either be released from detention or made subject to civil commitment proceedings under
the LPS Act. (Davis, at p. 807; see People v. Skeirik (1991) 229 Cal.App.3d 444, 456 &
fn. 13.) Davis, in turn, followed and implemented Jackson v. Indiana (1972) 406 U.S.
715, which reached the same conclusion. (Davis, at pp. 806–807; see generally In re
Polk, supra, 71 Cal.App.4th 1230, 1236–1237 [reviewing history of Murphy
conservatorship].)


                                               4
       Before addressing the merits of the conservatee’s argument, we note three
procedural difficulties. First, the assertion that his attorney made an “error” does not
constitute a cognizable legal claim. To justify a reversal of the court’s order on the basis
of his attorney’s conduct, the conservatee must demonstrate the attorney rendered
ineffective assistance of counsel. (See Conservatorship of Benvenuto (1986) 180
Cal.App.3d 1030, 1037, fn. 6.) A necessary element of such a claim is that his attorney’s
conduct was prejudicial. (People v. Ledesma (1987) 43 Cal.3d 171, 217–218.) This
requires more than a showing that, as the conservatee argues, the advice “precluded him
from presenting to the court information and argument he felt was urgent.” Rather, the
conservatee must show that the outcome of the hearing likely would have been different
had his counsel not rendered ineffective assistance. (Ibid.)
       There is no such likelihood here. Contrary to his claim, the conservatee was not
prevented from communicating anything to the court. He wanted to read his statement in
open court. Instead, with his consent, the probate court accepted and reviewed the
statement under seal. Accordingly, the conservatee was merely prevented, as a result of
counsel’s advice, from reading his statement, not from communicating his statement
altogether. Because there is no reason to believe the outcome of the hearing would have
been different if the conservatee had read his statement to the court, rather than having it
reviewed in camera, any error in counsel’s advice had no impact on the outcome of the
hearing.
       Second, the conservatee likely forfeited any argument on the asserted ground
when he agreed to the alternate procedure. (E.g., People v. Whalen (2013) 56 Cal.4th 1,
84.)
       Finally, the criminal charges against the conservatee remained pending at the time
of the hearing. Even if the charges are subject to dismissal, as the conservatee essentially




                                              5
argues, until they actually have been dismissed his attorney was rightfully concerned to
prevent self-incrimination.4
       In any event, we find no merit in the conservatee’s argument that the murder
charges against him are no longer viable. Based on language in Davis and Jackson, the
argument is premised on the assumption that, when he failed to regain mental
competency after three years, the criminal charges against him could no longer be
pursued. Contrary to his argument, nothing in Davis, Jackson, or the state or federal
Constitutions mandates this result.
       The conservatee’s argument derives from the holding of both Davis and Jackson
that a defendant who has not regained competence after a reasonable time must be either
released or civilly committed. (Davis, supra, 8 Cal.3d at p. 807; Jackson, supra,
406 U.S. at p. 738.) As explained in Jackson, “a person charged by a State with a
criminal offense who is committed solely on account of his incapacity to proceed to trial
cannot be held more than the reasonable period of time necessary to determine whether
there is a substantial probability that he will attain that capacity in the foreseeable future.
If it is determined that this is not the case, then the State must either institute the
customary civil commitment proceeding that would be required to commit indefinitely
any other citizen, or release the defendant.” (Id. at p. 738, fn. omitted.) As used here,
“release” means to release the defendant from jail or other pretrial detention; it does not
mean to release him or her from criminal liability. Neither case holds that, in addition to
releasing or civilly committing the defendant, the state must dismiss the pending criminal
charges.
       On the contrary, the issue of automatic dismissal was implicitly addressed and
rejected in Jackson. In that case, the defendant argued that, in addition to his release

       4
        The conservatee actually argues not that the charges would be subject to
dismissal but that “no action could be taken” on them. To the extent the conservatee
means the charges would be suspended, any suspension would end with his being found
competent. (Pen. Code, § 1370, subd. (a)(1)(B).) We therefore construe his argument as
contending the charges would be subject to dismissal. (See Pen. Code, § 1385, subd. (a)
[criminal charges can be dismissed in the furtherance of justice].)


                                                6
from pretrial detention, “fundamental fairness requires that the charges against him now
be dismissed.” (Jackson, supra, 406 U.S. at p. 739.) Although the defendant had been
detained for over three years, which the Supreme Court implied was a sufficient time to
require his release or civil commitment (id. at p. 738), the court declined to hold that
dismissal was an automatic consequence of his failure to regain competence during the
pretrial detention. The court rejected his claim to have “already made out a complete
insanity defense,” noting the defendant’s “criminal responsibility at the time of the
alleged offenses . . . is a distinct issue from his competency to stand trial.” (Id. at p. 739.)
Although the court recognized that “[d]ismissal of charges against an incompetent
accused has usually been thought to be justified on . . . the Sixth-Fourteenth Amendment
right to a speedy trial, or the denial of due process inherent in holding pending criminal
charges indefinitely over the head of one who will never have a chance to prove his
innocence,” it required the defendant to raise those issues on remand. (Id. at p. 740, fns.
omitted.) It did not suggest dismissal was warranted as a matter of law. This directly
refutes the conservatee’s reading of Jackson as requiring automatic dismissal of charges
against a defendant who fails to regain competence within a reasonable period of pretrial
confinement.5
       The conservatee treats the dismissal of pending charges as a logical consequence
of the requirement that a defendant who fails to regain competence after a reasonable
time must be either released or civilly committed. The reasoning behind the
constitutional prohibition on the indefinite pretrial detention of an incompetent defendant,
however, does not also require the dismissal of charges against a defendant who fails to
regain competence within a reasonable time. As the Supreme Court noted in Jackson,
competence to stand trial is a different issue from criminal insanity. (Jackson, supra,

       5
          The conservatee argues that “Jackson and Davis offer no basis for reinstating the
criminal proceedings” after a reasonable time of pretrial detention without a restoration of
competence. This is presumably because neither case mandates dismissal of the charges
in the first place, making it unnecessary to address their reinstatement. By statute in
California, criminal charges against a mentally incompetent defendant are merely
suspended. (Pen. Code, § 1370, subd. (a)(1)(B).) They are not dismissed.


                                               7
406 U.S. at p. 739.) A defendant who is not competent to stand trial remains criminally
responsible for his or her crimes, and the failure to regain mental competence within
three years does not alone absolve the defendant of that responsibility. It may well be
that the defendant will ultimately be found not guilty by reason of insanity should he or
she become competent and stand trial. In the absence of a formal resolution of the
criminal charges, however, whether by trial or a dismissal in the interests of justice (Pen.
Code, § 1385, subd. (a)), neither Davis nor Jackson provides a rationale for releasing an
incompetent defendant from criminal responsibility.6
       The conservatee argues that if dismissal of charges is not mandated after three
years, the state could evade Davis and Jackson “by putting [a defendant] on the Murphy
conservatorship, renewable annually and indefinitely, and then when he no longer
qualifies for the Murphy conservatorship, put him on trial, effectively taking as long as
necessary . . . to restore him to competency . . . .” The argument misunderstands both the
cases and the nature of a Murphy conservatorship. Davis and Jackson hold that an
incompetent defendant cannot be confined indefinitely solely on the premise of detention
awaiting trial. Neither case, however, holds that the expiration of a reasonable time of
pretrial detention without a restoration of competency precludes the state from further
criminal proceedings against the defendant, should he or she ever regain competence.
Rather, they hold only that, “[i]f there is no substantial probability the defendant will
regain competence, the state must justify further confinement by showing that it is
necessary on some ground applicable to all mentally ill persons.” (In re Polk, supra,
71 Cal.App.4th at p. 1236.) Contrary to the implication in the conservatee’s argument, a
Murphy conservatorship does not constitute pretrial detention by another name. Unlike
pretrial detention, the decision to grant the conservatorship is not based on the pendency


       6
         The conservatee argues that not to release a defendant whose Murphy
conservatorship is terminated could constitute a violation of equal protection under
certain circumstances. Because his conservatorship has not yet ended, he lacks standing
to assert that particular objection, and we do not address it. (People v. Garcia (1999)
21 Cal.4th 1, 11–12.)


                                              8
of criminal charges. Consistent with the requirement in Jackson that further detention
must be consistent with the treatment of mentally ill persons generally, a Murphy
conservatorship is available only if a defendant constitutes “a substantial danger of
physical harm to others” as a result of a “ ‘mental defect, disease, or disorder.’ ”
(Hofferber, supra, 28 Cal.3d at pp. 176–177.) Accordingly, for the state to pursue
criminal charges against a defendant who has recovered competence while subject to a
Murphy conservatorship would not necessarily contravene the constitutional premises of
Davis and Jackson.
       Further, the Penal Code contains a safety valve to prevent injustice in these
circumstances. In the absence of civil commitment proceedings, a criminal defendant
cannot be detained while incompetent for a term longer than the maximum term of the
most serious offense of which he or she is charged. (Pen. Code, § 1370, subd. (c)(1).)
Section 1370, subdivision (d) expressly notes that the criminal action against a defendant
who has failed to regain competence within the statutory period “remains subject to
dismissal pursuant to Section 1385,” which permits the dismissal of a criminal action “in
furtherance of justice.” A defendant whose period of incompetence exceeds the term of
punishment for the charged crimes, for example, presumably would be entitled to a
section 1385 dismissal. Other situations would be handled on a case-by-case basis, as
justice requires.
B. Nonpsychological Medical Care
       The conservatee contends the provision of the probate court’s order depriving him
of the right to make medical decisions concerning conditions unrelated to his mental
disorder was not supported by substantial evidence.
       Welfare and Institutions Code section 5357 provides that the court may impose
certain special disabilities on a conservatee, including those imposed by the court in the
present case. (§ 5357, subds. (a), (b), (d)–(f).) A finding of grave disability alone is not
sufficient to justify the imposition of the various special disabilities enumerated in
section 5357. (Conservatorship of George H. (2008) 169 Cal.App.4th 157, 165
(George H.).) The conservatee retains the rights and privileges covered by the special


                                              9
disabilities unless the court, after making separate findings of incapacity to support the
imposition of the special disabilities, imposes those disabilities and confers
corresponding authority on the conservator. (Ibid.) With respect to the particular
disability cited by the conservatee, “before a trial court may impose a medical disability
pursuant to section 5357[, subdivision] (d), the court must find that the conservatee . . . is
incapable of making rational decisions about medical treatment related to his or her own
grave disability, that is, lacks the mental capacity to rationally understand the nature of
the medical problem, the proposed treatment, and the attendant risks.” (K.G. v. Meredith
(2012) 204 Cal.App.4th 164, 180.) Substantial evidence must support the findings
underlying the imposition of a disability. (Conservatorship of Amanda B. (2007)
149 Cal.App.4th 342, 347–348.)
       In its order granting the conservator the power to “authorize routine medical
treatment,” the probate court found that the conservatee is “incapable of weighing the
risks and benefits of psychotropic medications and routine medical treatment and is,
therefore, incapable of giving informed consent.” 7 This finding was supported by
substantial evidence. Both consultants concluded the conservatee was incompetent to
make decisions regarding medical care unrelated to his mental illness. Their reports
demonstrate that he suffers from delusions that seriously impair his perception of reality,
including delusions about his health. Despite the overwhelming evidence of his
disability, he consistently denied he had a mental illness and took the prescribed
medications only under protest. When in jail and not under compulsion to take
antipsychotic medication, he refused. Yet he swore by medical marijuana. This evidence
supports the finding that the conservatee is incompetent to make medical decisions, since
it demonstrates a lack of awareness or acknowledgment of his condition, an inability to
understand proposed interventions, and an inability to understand and evaluate the

       7
        The conservatee contends the probate court was additionally required to make
express findings with respect to the various factors listed in Probate Code section 1881,
but we are unaware of any decision requiring such findings. (See K.G. v. Meredith,
supra, 204 Cal.App.4th at p. 180 [setting out necessary findings].)


                                              10
information given to him and participate in treatment decisions with a rational thought
process.
       The conservatee argues this evidence related only to the medication prescribed for
treatment of his mental illness, but there is no reason to believe he would not be similarly
unrealistic about other types of medical intervention, should they be necessary. There is
no requirement that the imposition of disabilities be supported by evidence specifically
relating to those disabilities. Rather, we apply “the usual rules” of appellate review and
“ ‘presume in favor of the judgment every finding of fact necessary to support it
warranted by the evidence.’ ” (George H., supra, 169 Cal.App.4th at p. 165.)
                                   III. DISPOSITION
       The order of the probate court is affirmed.




                                                  _________________________
                                                  Margulies, Acting P.J.


We concur:


_________________________
Banke, J.


_________________________
Becton, J.*




*
 Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



                                             11
