Filed 5/21/20
                          CERTIFIED FOR PUBLICATION

         IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FIRST APPELLATE DISTRICT

                                   DIVISION TWO


 Conservatorship of the Person and
 Estate of J.Y.

 PUBLIC GUARDIAN OF CONTRA
 COSTA COUNTY,
             Petitioner and Respondent,        A157323
 v.
                                               (Contra Costa County
 J.Y.,
                                               Super. Ct. No. P0400120)
             Objector and Appellant.

         Appellant J.Y. appeals from the trial court’s order reappointing
respondent Contra Costa County Public Guardian conservator of her person
pursuant to the Lanterman-Petris-Short Act (LPS) Act (Welf. & Inst. Code,
§ 5000 et seq.).1 On appeal, appellant contends that compelling her to testify
as a witness against herself at the trial for reappointment of respondent as
her conservator violated her state and federal equal protection rights, given
that the right to refuse to testify has been statutorily granted to persons
found not guilty by reason of insanity (NGI) in proceedings to extend their
civil commitment. We agree with appellant that LPS conservatees are
similarly situated to NGI’s, as well as individuals subject to other involuntary
civil commitments, for purposes of the right against compelled testimony,


      All further statutory references are to the Welfare and Institutions
         1

Code unless otherwise indicated.

                                          1
considering the serious liberty interests at stake in all such involuntary civil
commitments. We also find that respondent has not yet offered a compelling
reason why LPS conservatees’ procedural protections should not include the
right against compelled testimony. However, because appellant’s one-year
conservatorship has terminated, we will dismiss the appeal as moot.
                               BACKGROUND
      Respondent was first appointed temporary conservator of appellant’s
person on February 6, 2004. Thereafter, an order appointing respondent as
conservator of appellant’s person was entered on January 13, 2005, and an
order continuing her conservatorship was entered on March 21, 2005.
      Orders reappointing respondent conservator of appellant’s person were
entered 12 times between January 2006 and December 2017.
      In the present matter, respondent filed a petition for reappointment as
conservator of appellant’s person on November 13, 2018. Appellant objected
to the reappointment and requested a jury trial. Appellant further objected
to respondent calling her as a witness at trial, arguing that such compelled
testimony would violate her due process and equal protection rights. The
court overruled the objection, finding that Conservatorship of Baber (1984)
153 Cal.App.3d 542, “clearly indicates that, number one, these are civil
proceedings not criminal. There is not a Fifth Amendment right as in
criminal proceedings. That’s part of what the trier of fact has to observe, that
is, the physical and also mental presentation that the proposed conservatee,
respondent, exhibits [sic]. So that is something that has to be considered by
the trier of fact.” The court further stated, however, “that does not prevent
the assertion of a Fifth Amendment right if a question calls for something
that could incriminate [appellant] in a criminal proceeding.”




                                        2
      A jury trial was held in April 2019, at which appellant testified in
respondent’s case in chief. Two other witnesses also testified for respondent.
Psychiatrist Michael Levin, who had interviewed appellant twice, testified as
an expert in the areas of psychiatry and grave disability. Dr. Levin opined
that appellant suffered from schizophrenia and was gravely disabled.
Andrew Smith, a licensed psychologist and deputy conservator who had
worked with appellant since February 2018, testified as an expert in the area
of grave disability. Dr. Smith also opined that appellant was gravely
disabled.
      At the conclusion of trial, the jury found that appellant was gravely
disabled due to a mental disorder, and the court entered an order
reappointing respondent as conservator of appellant’s person. The court then
imposed special disabilities depriving appellant of the rights to (1) refuse
treatment related to her grave disability or general health, (2) enter into
contracts, and (3) possess or own firearms. The court also designated
appellant’s current placement in a skilled nursing facility, where she had
lived for 10 years, as the least restrictive alternative placement.
      On May 13, 2019, appellant filed a notice of appeal.
                                 DISCUSSION
      Appellant contends that compelling her to testify as a witness against
herself at the trial for reappointment of respondent as her conservator
violated her state and federal equal protection rights, given that the right to
refuse to testify has been statutorily granted to NGI’s in proceedings to
extend their civil commitment.
                                  I. Mootness
      As a preliminary matter, appellant observes that because her one-year
conservatorship terminated on December 15, 2019, while this appeal was


                                        3
pending, her appeal is now technically moot. At our request, the parties have
submitted recent documents from the trial court record that were not in the
record on appeal, showing that on December 19, 2019, respondent filed a
petition for reappointment as conservator; on January 28, 2020, the parties
stipulated to a continuance until February 18, 2020; and that on February
18, 2020, the trial court continued the matter for one month, until March 17,
2020, stating that “the proposed conservatee is not accepting the
reappointment and wants to wait on the outcome of the appeal on the
disposition of the prior petition.”2
      Appellant asks that we exercise our discretion to address the equal
protection issue she raises, based on the continuing public importance of the
issue, its likely continuing impact on her, as well as the inherent difficulty of
resolving such an appeal before the expiration of a one-year conservatorship.
For the reasons stated by appellant, we will exercise our discretion to address
the issue on the merits. (See People v. Alsafar (2017) 8 Cal.App.5th 880, 883
(Alsafar) [finding equal protection issue moot, but addressing it on merits
because it “is a legal issue of continuing public importance . . . and is a
question capable of repetition, yet evading review”]; People v. Dunley (2016)
247 Cal.App.4th 1438, 1445 (Dunley) [same].)3 However, because a reversal



      2 On our own motion, after affording the parties the opportunity to
comment at oral argument, we take judicial notice of the documents from the
trial court record—the ongoing case report and a January 28, 2020 minute
order—that the parties have submitted. (See Evid. Code, §§ 452, subd. (d),
459.)
      3We observe that two appellate courts have recently published opinions
addressing the identical equal protection issue appellant raises here. (See
Conservatorship of E.B. (2020) 45 Cal.App.5th 986, 988 (E.B.);
Conservatorship of Bryan S. (2019) 42 Cal.App.5th 190, 195 (Bryan S.),
review den. Mar. 11, 2020.) Because the courts in these two cases have
                                        4
would have no practical effect on the present appeal, we will dismiss it as
moot. (See Alsafar, at p. 883; Dunley, at p. 1445.)
                                II. The LPS Act
      The LPS Act affirms that “[p]ersons with mental illness have the same
legal rights and responsibilities guaranteed all other persons by the Federal
Constitution and laws and the Constitution of the State of California, unless
specifically limited by federal or state law or regulations.” (§ 5325.1.)
Moreover, “[n]o person may be presumed to be incompetent because he or she
has been evaluated or treated for mental disorder . . . , regardless of whether
such evaluation or treatment was voluntarily or involuntarily received.”
(§ 5331; see In re Qawi (2004) 32 Cal.4th 1, 17 [“ ‘one of the cardinal
principles of LPS,’ [is] ‘that mental patients may not be presumed
incompetent solely because of their hospitalization’ ”; see also § 5000;
Conservatorship of Early (1983) 35 Cal.3d 244, 253].)
      Under the LPS Act, a conservator may be appointed “for a person who
is gravely disabled as a result of a mental health disorder . . . . (§ 5350.)
“Gravely disabled” is defined as, inter alia, “[a] condition in which a person,
as a result of a mental health disorder, is unable to provide for his or her
basic personal needs for food, clothing, or shelter.” (§ 5008, subd. (h)(1)(A).)4



reached opposite conclusions on the equal protection question, we believe it is
valuable to address the merits in this case, regardless of mootness.
      4 A person found gravely disabled under section 5008, subdivision
(h)(1)(A), must be placed “in the least restrictive alternative placement, as
designated by the court.” (§ 5358, subd. (a)(1)(A).) The conservatorship
“shall automatically terminate one year after the appointment of the
conservator,” although, if the conservator determines that an additional
period of conservatorship is still required, he or she may petition the trial
court for reappointment as conservator for a succeeding one-year period.
(§ 5361.)

                                         5
Under section 5350, subdivision (e)(1), “a person is not ‘gravely disabled’ if
that person can survive safely without involuntary detention with the help of
responsible family, friends, or others who are both willing and able to help
provide for the person’s basic needs for food, clothing, or shelter.”
                            III. Equal Protection
      “ ‘ “The first prerequisite to a meritorious claim under the equal
protection clause is a showing that the state has adopted a classification that
affects two or more similarly situated groups in an unequal manner.”
[Citations.] This initial inquiry is not whether persons are similarly situated
for all purposes, but “whether they are similarly situated for purposes of the
law challenged.” ’ [Citation.] In other words, we ask at the threshold
whether two classes that are different in some respects are sufficiently
similar with respect to the laws in question to require the government to
justify its differential treatment of these classes under those laws.” (People v.
McKee (2010) 47 Cal.4th 1172, 1202 (McKee).)
      “The second step is determining whether there is a sufficient
justification for the unequal treatment. The level of justification needed is
based on the right implicated. When the disparity implicates a suspect class
or a fundamental right, strict scrutiny applies. [Citation.] When no suspect
class or fundamental right is involved, the challenger must demonstrate that
the law is not rationally related to any legitimate government purpose.
[Citation.]” (People v. Flint (2018) 22 Cal.App.5th 983, 990, citing People v.
Wilkinson (2004) 33 Cal.4th 821, 836.)
      Decisions by our Supreme Court and the United States Supreme Court
“have used the equal protection clause to police civil commitment statutes to
ensure that a particular group of civil committees is not unfairly or




                                         6
arbitrarily subjected to greater burdens. [Citations.]” (McKee, supra, 47
Cal.4th at p. 1199 [citing cases].)
                           A. Disparate Treatment
      “Under both the United States and California Constitutions, a person
has the right to refuse to answer potentially incriminating questions put to
him or her in any proceeding; in addition, the defendant in a criminal
proceeding enjoys the right to refuse to testify at all.” (Dunley, supra, 247
Cal.App.4th at p. 1446.) Commitment proceedings are civil in nature. (Ibid.)
      Although there is no constitutional right to refuse to testify in civil
proceedings, including LPS commitment proceedings (see Conservatorship of
Baber, supra, 153 Cal.App.3d at p. 550), in Hudec v. Superior Court (2015) 60
Cal.4th 815, 830, 832 (Hudec), the California Supreme Court held that NGI’s
have a statutory right, pursuant to Penal Code section 1026.5, subdivision
(b)(7), to refuse to testify in civil commitment extension proceedings. The
court explained that this right not to testify “does not take its very meaning
from the criminal context, nor does applying it when the prosecution seeks to
compel the respondent’s testimony in an NGI commitment extension hearing
present any logical difficulty. . . . ‘The right not to be compelled to testify
against oneself is clearly and relevantly implicated when a person is called by
the state to testify in a proceeding to recommit him or her even if what is said
on the witness stand is not per se incriminating.’ [Citation.]” (Hudec, at
p. 830, quoting People v. Haynie (2004) 116 Cal.App.4th 1224, 1230.)
      After Hudec, a number of courts have found that mentally disordered
offenders (MDO) and sexually violent predators (SVP) are similarly situated
to NGI’s under the equal protection clause for purposes of the right against
compelled testimony. (See People v. Flint, supra, 22 Cal.App.5th at p. 989
[Div. Four of First District found SVP’s are similarly situated to NGI’s];


                                         7
Alsafar, supra, 8 Cal.App.5th at p. 887 [Div. Three of Fourth District found
MDO’s are similarly situated to NGI’s]; People v. Field (2016) 1 Cal.App.5th
174, 194 [Div. One of Fourth District found SVP’s are similarly situated to
NGI’s and MDO’s]; Dunley, supra, 247 Cal.App.4th at p. 1450 [Div. Two of
Fourth District found MDO’s are similarly situated to NGI’s and SVP’s];
People v. Landau (2016) 246 Cal.App.4th 850, 864 [Div. Three of Fourth
District found SVP’s are similarly situated to NGI’s]; People v. Curlee (2015)
237 Cal.App.4th 709,720 (Curlee) [Div. Four of First District found SVP’s are
similarly situated to NGI’s].)
      In this case, appellant argues that LPS conservatees, while different
from NGI’s in many ways, are similarly situated for purposes of whether they
may be compelled to testify in conservatorship proceedings. Two recent cases
from this District have addressed this precise question, reaching quite
different conclusions.
      First, in Bryan S., supra, 42 Cal.App.5th at page 195, Division One of
this District rejected the argument that LPS conservatees are similarly
situated to NGI’s for purposes of the right not to testify against oneself.
While acknowledging that LPS conservatees, NGI’s, SVP’s, and MDO’s are all
“subject to involuntary civil commitment as a result of their mental health,”
the court found more meaningful the fact that “LPS Act conservatees, unlike
those facing NGI, SVP, or MDO commitment proceedings, need not have been
found to have committed a crime or be a danger to others.” (Id. at p. 196.)
The court found these differences “fatal” to the LPS conservatee’s equal
protection claim: “As our Supreme Court has explained, there is ‘no
similarity between the aims and objectives of the [LPS Act] and those of the
criminal law. . . . “The commitment is not initiated in response, or
necessarily related, to any criminal acts.” ’ [Citations.] Again, the purpose of


                                        8
civil commitments for NGI’s, SVP’s, and MDO’s is to protect the public from
people who have been found to be dangerous to others and who need
treatment for a mental disorder. [Citation.] By contrast, the primary
purposes of the LPS Act are to provide prompt evaluation and treatment of
persons with mental health disorders; to provide such people with
individualized treatment, supervision, and placement services; and to
encourage the use of all resources to accomplish these objectives. [Citations.]
‘We cannot overemphasize the importance of recognizing that a prospective
conservatee is not a criminal defendant but, in many cases, a person in dire
need of the state’s assistance.’ [Citation.]” (Id. at p. 197, citing inter alia,
Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1015, 1019–1020 &
Conservatorship of Ben C. (2007) 40 Cal.4th 529, 543.)
      Second, and even more recently, in E.B., supra, 45 Cal.App.5th at
page 988, Division Five of this District held that “LPS conservatees are
similarly situated with NGI’s and with individuals subject to other
involuntary civil commitments for purposes of the right against compelled
testimony.” The court reasoned that, “[a]lthough the LPS statute focuses on
the prompt evaluation and treatment of person with serious mental disorders
without respect to their criminal activities [citation], this does not change the
nature of the confinement under its provisions and the resulting deprivation
of liberty.” (Id. at p. 993.)
      In this case, we agree with Bryan S. that there are differences between
LPS conservatees and individuals subject to other involuntary civil
commitments, with the latter group having necessarily committed a crime
and been found to be dangerous to others. However, we are also mindful that
the crucial question for equal protection purposes is whether “two classes
that are different in some respects are sufficiently similar with respect to the


                                         9
laws in question to require the government to justify its differential
treatment of these classes under those laws.” (McKee, supra, 47 Cal.4th at
p. 1202.) In examining this question, we, like the court in E.B., conclude that
LPS conservatees are similarly situated to NGI’s and individuals subject to
other involuntary civil commitments with respect to the right against
compelled testimony, considering that all of these civil committees have in
common a potentially lifetime deprivation of liberty. (See E.B., supra,
45 Cal.App.5th at p. 1003.)
      In Conservatorship of Roulet (1979) 23 Cal.3d 219, 225–226 (Roulet),
which held that the state must prove grave disability beyond a reasonable
doubt in LPS conservatorship proceedings, our Supreme Court discussed the
“extent to which liberty is at stake” for an LPS conservatee “by reviewing
exactly what awaits an individual subjected to a grave disability proceeding”
under the LPS Act, and concluding that the applicable “statutes assure in
many cases an unbroken and indefinite period of state-sanctioned
confinement. ‘The theoretical maximum period of detention is life as
successive petitions may be filed . . . .’ [Citation.]” (Roulet, at pp. 223–224,
230, fn. omitted [further noting unfair stigma and special threats to
reputation attached to grave disability proceedings];5 cf. Riese v. St. Mary’s
Hospital & Medical Center (1987) 209 Cal.App.3d 1303, 1314 [rights granted
LPS conservatees include “ ‘right to dignity’ ” ]; see also E.B., supra, 45
Cal.App.5th at p. 1003.)



      5 The court in Roulet also observed that the “gravely disabled person for
whom a conservatorship has been established faces the loss of many other
liberties in addition to the loss of his or her freedom from physical restraint,”
including numerous statutory disabilities, such as those imposed in this case:
the rights to refuse or consent to treatment, possess or own firearms, or enter
into contracts. (Roulet, supra, 23 Cal.3d at p. 228.)

                                        10
      Because we find the analysis in E.B. extremely well-reasoned and
relevant here, we will quote from it at length in this opinion. In E.B., the
court discussed the similarities between LPS conservatorships and other
involuntary civil commitments, explaining that an LPS conservatee “faces an
involuntary commitment similar to NGI’s (and MDO’s and SVP’s) even if the
reason behind that commitment is more benevolent. The reasons underlying
an LPS commitment, while not identical to civil commitment schemes
applicable to those who have been convicted of crimes, overlap with them.
The primary purpose of NGI extension proceedings and MDO and SVP
commitments is to protect the public from people found dangerous to others
and who need treatment for a mental disorder, but an ancillary purpose is to
provide mental health treatment for the disorder. [Citations.] And, while an
LPS conservatee need not be proved dangerous to the public in all
circumstances, one purpose of the LPS Act is to ‘guarantee and protect public
safety.’ (§ 5001, subd. (c).) . . .
      “Moreover, many of the same procedural protections apply in a trial to
declare someone an LPS conservatee as apply in other proceedings to
establish involuntary commitments. As with NGI extension proceedings,
MDO proceedings, and SVP proceedings, a proceeding to declare a
conservatorship under the LPS statute requires that the government bear the
burden of proof beyond a reasonable doubt, and that the subject of the
petition have the right to a jury trial and a unanimous verdict. [Citations.]”
(E.B., supra, 45 Cal.App.5th at pp. 994–995, fn. omitted.)
      The E.B. court then focused specifically on the right against compelled
testimony, stating: “It is not a reasonable distinction to say that individuals
who have not engaged in criminal conduct can be required to testify against
themselves in a trial to determine whether they might be committed against


                                       11
their will when a person whose commitment is linked to his criminal conduct
can elect to remain silent. At least, the nature of the commitment requires a
finding that the groups are similarly situated for purposes of requiring the
state to justify this disparate treatment.
      “The primary benefit of allowing compelled testimony in a case
involving involuntary commitments is that it produces a more accurate
verdict by allowing the trier of fact to observe firsthand the demeanor of the
person the state seeks to commit. [Citations.] This interest in an accurate
verdict exists in all involuntary commitment schemes—indeed, it might be
argued that the interest is even greater when the mental illness results in
the person being a danger to others.” (E.B., supra, 45 Cal.App.5th at
pp. 996–997.)
      The E.B. court emphasized that the constitutional right with which it
was concerned was “equal protection, not the right against compelled
testimony. We in no way suggest that the Constitution would preclude an
LPS conservatee from taking the stand under protest. But the state has
determined to extend the privilege against self-incrimination to persons
subject to an NGI extension proceeding, and SVP’s and MDO’s have been
deemed by the courts to be similarly situated. ‘MDO, NGI, and LPS
proceedings have the same underlying goal—protecting the public and
treating severely mentally ill persons. [Citations.] In the LPS context,
“ ‘[t]he destruction of an individual’s personal freedoms effected by civil
commitment is scarcely less total than that effected by confinement in a
penitentiary.’ ” [Citation.] “[T]he gravely disabled person for whom a
conservatorship has been established faces the loss of many other liberties in
addition to the loss of his or her freedom from physical restraint.” [Citation.]
“Indeed, a conservatee may be subjected to greater control of his or her life


                                       12
than one convicted of a crime.” ’ [Citations.]” (E.B., supra, 45 Cal.App.5th at
p. 996, quoting Conservatorship of Heather W. (2016) 245 Cal.App.4th 378,
383 & Roulet, supra, 23 Cal.3d at p. 232; see also Conservatorship of Kevin A.
(2015) 240 Cal.App.4th 1241, 1249–1250.)
      Finally, the court in E.B. concluded: “While NGI’s, SVP’s, and MDO’s
may have been found guilty of a crime, the purpose underlying those civil
commitment schemes is not punishment, but treatment for a mental health
condition. [Citations.] LPS conservatees may have a different criminal
history than NGI’s, MDO’s, and SVP’s, but at root, like those groups, they are
committed against their will for mental health treatment—possibly for the
rest of their lives. . . . [B]efore they are asked to be ‘agents of their own
incarceration,’ the state should be required to justify its decision to treat LPS
conservatees differently with respect to compelled testimony.” (E.B., supra,
45 Cal.App.5th at p. 997.)
      We likewise conclude that, like MDO’s and SVP’s, LPS conservatees are
similarly situated to NGI’s for purposes of the right against compelled
testimony because they too are subject to the possibility of “an unbroken and
indefinite period of state-sanctioned confinement.” (Roulet, supra, 23 Cal.3d
at p. 224.)
               B. Justification for the Disparate Treatment
      When two groups are found to be similarly situated, the next question
is whether the state can justify the disparate treatment. (Dunley, supra, 247
Cal.App.4th at p. 1450.) “One of two tests applies in a given case: either the
rational basis test or the strict scrutiny test.” (Ibid.)
      Respondent concedes that strict scrutiny is applicable in involuntary
civil commitment cases, and that the state must establish “that it has a
compelling interest that justifies the law.” (See Dunley, supra, 247


                                         13
Cal.App.4th at p. 1451 [“The California Supreme Court has long held that
under California law, equal protection challenges to involuntary civil
commitment schemes are reviewed under the strict scrutiny test because
such schemes affect the committed person’s fundamental interest in
liberty”].) Respondent nonetheless argues that the state has a compelling
interest justifying the compelled testimony in LPS conservatorship
proceedings, and the distinctions or disparate treatment are necessary to
further this purpose: “ ‘the custodial care, diagnosis, treatment and
protection of persons who are unable to take care of themselves and who for
their own well being and the safety of others cannot be left adrift in the
community’. [Citation.]” (Quoting Baber, supra, 153 Cal.App.3d at p. 549.)
      This argument, however, does not distinguish between the need for
truth in LPS conservatorship proceedings and proceedings involving NGI’s,
MDO’s, and SVP’s. Indeed, as the court in E.B. observed, the interest in an
accurate verdict is arguably greater when a committee’s mental illness
results in the person being a danger to others. (E.B., supra, 45 Cal.App.5th
at pp. 996, 997 [finding that “the public guardian made no showing that
appellant’s compelled testimony was any more necessary in the proceeding to
declare appellant an LPS conservatee than it would have been in other types
of civil commitment proceedings”].) Thus, while we do not disagree that LPS
conservatees differ in some ways from those subject to involuntary civil
commitments due to their criminal history and dangerousness, respondent
has not yet offered a compelling reason why LPS conservatees’ procedural
protections should not include the right against compelled testimony.
      Normally, we would remand the matter to the trial court for an
evidentiary hearing to give respondent the opportunity to establish a factual
basis justifying the disparate treatment of LPS conservatees and other


                                       14
similarly situated groups subject to involuntary civil commitment. (See
Dunley, supra, 247 Cal.App.4th at p. 1453, fn. 14, citing McKee, supra, 47
Cal.4th at pp. 1208–1211 & Curlee, supra, 237 Cal.App.4th at pp. 722–723.)
Because we are dismissing the appeal as moot, however, a remand to the trial
court on that issue is not appropriate at present. (See Dunley, at p. 1453,
fn. 14.)6
                                 DISPOSITION
      The appeal is dismissed.




      6 In light of our dismissal of the appeal, we also will not address
respondent’s assertion that any error in compelling appellant to testify in its
case in chief was harmless under any standard, considering the other
competent evidence introduced at trial demonstrating that appellant is
gravely disabled.

                                       15
                                               _________________________
                                               Kline, P.J.


We concur:


_________________________
Richman, J.


_________________________
Miller, J.




Conservatorship of the Person and Estate of J.Y. (A157323)


                                          16
Trial Court:                Contra Costa County Superior Court


Trial Judge:                Honorable Susan M. Fenstermacher


Attorney for Appellant:     By appointment of the Court of Appeal Under
                            the First District Appellate Project
                            Jeremy T. Price

Attorneys for Respondent:   Office of the County Counsel
                            Sharon L. Anderson
                            County Counsel

                            Nina F. Dong
                            Deputy County Counsel




                                   17
