Filed 3/29/18
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


Conservatorship of the Person          2d Civil No. B281606
and Estate of P.D.                   (Super. Ct. No. 56-2016-
                                     00488726-MH-CN-VTA)
                                         (Ventura County)

PUBLIC GUARDIAN OF THE
COUNTY OF VENTURA,

     Petitioner and Respondent,

v.

P.D.,

     Objector and Appellant.


            P.D. appeals an order appointing the Public
Guardian of the County of Ventura (Public Guardian) as the
conservator of his person and estate after the jury found beyond a
reasonable doubt that he is gravely disabled as a result of mental
disorder. (Welf. & Inst. Code,1 § 5000 et seq.; Lanterman-Petris-


        1 All
           statutory references are to the Welfare and
Institutions Code.
Short Act (LPS Act).) The trial court’s instructions informed the
jury about the duration and types of treatment that may be
ordered if a conservatorship is established. It was error to give
instructions concerning possible consequences should a party
prevail. Nevertheless, we affirm because the error was harmless.
            FACTUAL AND PROCEDURAL HISTORY
             P.D. suffers from schizophrenia. He was arrested for
violating a restraining order that protects his family. The court
found him incompetent to stand trial. It committed him to
Sylmar Health and Rehabilitation Center for mental health
treatment to restore his competency. After the criminal charges
were dismissed, Public Guardian filed a petition for a
conservatorship on the ground that P.D. is gravely disabled as a
result of his mental disorder.
             Murray Weiss, M.D., testified that P.D. was
diagnosed with a mental disorder 10 years earlier, has delusions,
and requires medication to control his symptoms. When not
taking his medication, P.D. becomes angry, aggressive, and
“impulse disordered.” Dr. Weiss said that P.D. does not accept
his diagnosis and believes his medications are “poison drugs.”
             Dr. Weiss opined that P.D. is unable to provide for
his basic needs of food, clothing, and shelter as a result of his
mental disorder. Without a conservatorship, P.D. will stop
taking his medication and be “homeless and hungry and living
from day-to-day and probably arrested for violating the
restraining order when he goes back to his family residence.”
             P.D. testified that he does not suffer from a mental
disorder and does not need to take medication. He said that if
released, he will return to his family or seek help from unnamed
friends, none of whom he has contacted to discuss his plans. He




                                2
denied the existence of an active restraining order which
prevents him from contacting his wife and which formed the
basis of his prior arrest.
              The court instructed the jury and both counsel agreed
that Public Guardian was required to prove the elements of grave
disability beyond a reasonable doubt. And the court instructed
the jury with CACI 4004, which provides: “In determining
whether [P.D.] is gravely disabled, you must not consider or
discuss the type of treatment, care, or supervision that may be
ordered if a conservatorship is established.”
              But the court also gave two special instructions about
the consequences of the verdict. The first one provides: “If you
find [P.D.] is gravely disabled, the court may establish a
conservatorship of the person and estate. [¶] The conservator
shall have the right to require the conservatee to obtain medical
treatment for any mental disorder that makes him gravely
disabled. The conservator may place the conservatee in a state,
county, medical, psychiatric, nursing or other state-licensed
facility, or private hospital, or in a residential center or a board
and care home. [¶] The conservator will have the right to receive
and expend funds for the benefit of the conservatee, but is
required to account to the court at specified times for his
expenditures and receipts.”
              The second special instruction provides: “A
conservatorship automatically terminates after one year, unless
at the end of that period, another petition is filed, and it is proven
the conservatee is presently gravely disabled in a court of law.
During the year, the conservatee is entitled to a hearing on
whether he is presently gravely disabled. The conservatee may
also end the conservatorship during the year, based on a




                                  3
qualitied opinion that the conservatee is no longer gravely
disabled.”
                            DISCUSSION
              P.D. contends the instructions taken as a whole
created confusion and uncertainty about what matters the jury
could consider and violated his right to due process. The special
instructions were erroneous, but we are not persuaded that a
miscarriage of justice resulted.
              The LPS Act authorizes the superior court to appoint
a conservator of the person for one who is gravely disabled. (§
5350.1; Conservatorship of John L. (2010) 48 Cal.4th 131.) Grave
disability exists when “as a result of a mental health disorder,
[the person] is unable to provide for his . . . basic personal needs
for food, clothing, or shelter.” (§ 5008, subd. (h)(1)(A).) The
proposed conservatee has a right to jury trial on the question of
grave disability at which the party urging conservatorship has
the burden of proof beyond a reasonable doubt. (Conservatorship
of John L., at p. 143.) We review a contention of instructional
error de novo. (Conservatorship of Walker (1987) 196 Cal.App.3d
1082, 1091-1092.)
              LPS commitment proceedings are subject to the due
process clause because significant liberty interests are at stake.
(Conservatorship of John L., supra, 48 Cal.4th at p. 150.) But an
LPS proceeding is civil. (Conservatorship of George H. (2008) 169
Cal.App.4th 157, 162 [no sua sponte duty to instruct jury that
LPS conservatorship not necessary for a person who can accept
voluntary treatment].) “[T]he stated purposes of the LPS Act
foreclose any argument that an LPS commitment is equivalent to
criminal punishment in its design or purpose.” (Conservatorship
of John L., at p. 151.) Thus, not all safeguards required in




                                 4
criminal proceedings are required in LPS proceedings. (Ibid. [due
process did not require personal presence of proposed LPS
conservatee at trial].)
             In criminal cases, jurors must not consider the
consequences of the verdict. (People v. Moore (1968) 257
Cal.App.2d 740, 750.) For example, in People v. Sorenson (1964)
231 Cal.App.2d 88, 91, the prosecutor committed prejudicial
misconduct when he argued in a sanity trial the defendant should
be imprisoned, not hospitalized, because a doctor might “turn[]
him loose.” The only question before the jury was whether or not
he was sane when he committed the crime. (Ibid.) The argument
was an improper “appeal to the jurors to abdicate their lawful
role and to decide the issue of sanity in terms of their own
opinion that imprisonment, not hospitalization, was [the]
defendant’s proper fate,” and “to usurp functions reposed by
statute in other hands.” (Id. at p. 92.) The argument also
misstated the law by suggesting that if the defendant were
hospitalized, a doctor could release him without a judicial
hearing. (Ibid.) The evidence was close and a miscarriage of
justice required reversal. (Id. at p. 94.)
             P.D. asks us to extend the rule applied in criminal
cases to LPS proceedings as a matter of due process because of
the important liberty interests at stake. He points out that the
rule has been extended to civil commitment proceedings for state
hospital inmates found not guilty by reason of insanity, mentally
disordered offenders (MDO), and sexually violent predators (SVP)
in People v. Kipp (1986) 187 Cal.App.3d 748, 751 (Kipp), People v.
Collins (1992) 10 Cal.App.4th 690, 696 (Collins), and People v.
Rains (1999) 75 Cal.App.4th 1165, 1167 (Rains). Those cases did
not rely on due process as a basis for their holdings, but they did




                                5
conclude that instructions, argument, and evidence about the
consequences of the verdict were improper.
             In Kipp, supra, 187 Cal.App.3d 748, an instruction
that an inmate of a state hospital would be released without
further court supervision or future treatment if the jury found
him “to no longer be a danger to [himself] or other[s],” was
nonprejudicial. (Id. at p. 750.) There could “be no purpose to
advising a jury of the consequences of its decision . . . except to
improperly deflect its attention from the issue of the defendant’s
current mental condition.” (Id. at p. 751.) But the error was not
prejudicial because “[t]he prosecution’s evidence that [Kipp] still
suffered from severe mental disorders and was not yet ready for
release [from] the hospital was consistent, overwhelming,
essentially unrebutted, and even found support in Kipp’s own
testimony.” (Id. at pp. 751-752.)
             In Collins, supra, 10 Cal.App.4th 690, an instruction
that the verdict “would determine whether [an MDO] should be
hospitalized or released on parole,” required reversal. (Id. at p.
695.) The prosecutor “devote[d] his opening statement and
closing argument to the consequences of the verdict” and other
significant instructional errors combined to result in “cumulative
errors [which] were prejudicial.” (Id. at pp. 696, 698.)
             In Rains, supra, 75 Cal.App.4th 1165, a trial court
erred when it allowed the prosecution’s experts in an SVP trial to
testify that a “true” finding would result in civil commitment to a
psychiatric facility for treatment and that the commitment would
be reviewed every two years. (Id. at p. 1171.) The evidence was
irrelevant to the two questions before the jury: (1) whether the
defendant had a diagnosed mental disorder, and (2) whether that
disorder makes him a danger to the health and safety of others in




                                 6
that it is likely he will engage in sexually violent criminal
behavior. (Ibid.) But the error did not result in a “miscarriage of
justice,” (id. at p. 1170) because the evidence that Rains was an
SVP was undisputed, Rains presented no defense, the testimony
was a brief response to a juror’s concern that a “true” finding
would result in a prison sentence, the trial court instructed the
jury not to consider the consequences of the verdict, and the
prosecutor told the jury, “‘[i]t is not your function to decide what
should happen to’” Rains. (Id. at pp. 1170-1172.)
              As in Kipp, Collins, and Rains, information about the
consequences of conservatorship for P.D. was irrelevant to the
only question before P.D.’s jury: whether, as a result of a mental
disorder, he is unable to provide for his basic personal needs for
food, clothing, or shelter. (§ 5008, subd. (h)(1)(A).) But no
miscarriage of justice resulted here. Other instructions clearly
stated the burden of proof and identified the sole question before
the jury. Public Guardian focused on the elements of grave
disability and the burden of proof in his opening statement and
closing argument, and did not refer to the special jury
instructions which are challenged here. Counsel for both parties
emphasized the correct instructions and the evidence was not
close. Dr. Weiss’s testimony that P.D. suffers from delusions
which impair his ability to provide for his own basic needs was
based on personal observations and was uncontradicted by any
expert or third party. P.D. reinforced this testimony when he
said he would return to a job which does not exist and a spouse
who is a protected party under an active restraining order. P.D.
was unable to articulate any rational plan for meeting his basic
personal needs. The jury unanimously agreed that P.D. is




                                 7
gravely disabled beyond a reasonable doubt. There is no
indication in the record that the jury was confused about its task.
              Where an instruction in a criminal case relieves the
prosecutor of its burden to prove every element of the offense
beyond a reasonable doubt, the error is structural and reversal is
required. (Sullivan v. Louisiana (1993) 508 U.S. 275, 281-282.)
But this is a civil case. (Conservatorship of John L., supra, 48
Cal.4th at p. 150.) And even if we were to apply the standard of
Chapman v. California (1967) 386 U.S. 18, on the theory that the
special instructions invited the jury to consider irrelevant
information and thus undermined P.D.’s due process right to a
fair trial (see Bruton v. United States (1968) 391 U.S. 123, 131,
fn. 6), we would find it harmless beyond a reasonable doubt.
                            DISPOSITION
              The order is affirmed.
              CERTIFIED FOR PUBLICATION.




                                     TANGEMAN, J.
We concur:


             GILBERT, P. J.



             PERREN, J.




                                 8
                   Vincent J. O’Neill, Judge

               Superior Court County of Ventura

               ______________________________


           Todd W. Howeth, Public Defender, Russell L. Baker,
Senior Deputy Public Defender, for Objector and Appellant.

           Leroy Smith, County Counsel, Mitchell B. Davis,
Assistant County Counsel, for Petitioner and Respondent.
