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Court of Appeal, Fourth District, Division 1, California.

IN RE: CONSERVATORSHIP OF the Person of William H. BUCKNER, SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. William H. BUCKNER, Conservatee and Appellant.

No. D004966.

Decided: December 08, 1987

Robert F. Gusky, Poway, under appointment by the Court of Appeal, for conservatee and appellant. Lloyd M. Harmon, Jr., County Counsel, Daniel J. Wallace, Chief Deputy County Counsel, and Mark C. Mead, Deputy County Counsel, San Diego, for petitioner and respondent.

William H. Buckner appeals from the jury verdict finding him gravely disabled under the Lanterman–Petris–Short Act (LPS), Welfare and Institutions Code 1 section 5350 et seq., and the trial court's order reestablishing a conservatorship for his person.  (§§ 5350 & 5361.)


On January 31, 1985, after finding Buckner gravely disabled as the result of a mental disorder, and he was either unwilling or incapable of accepting voluntary treatment, the trial court appointed Richard J. Thomson, a public conservator for the Department of Social Services, conservator of the person of Buckner for a period of one year, imposed specific disabilities, and ordered placement in a closed (locked) treatment facility.  (§ 5350 et seq.) 2  Buckner was subsequently placed in Patton State Hospital for involuntary treatment.

After nearly one year, under the provisions of the LPS Act, the public conservator filed a petition in the San Diego Superior Court for reestablishment of Buckner's conservatorship.   Filed with the petition was the medical report of Drs. David Owens and Arvin Kiein diagnosing Buckner as a “schizophrenic, chronic indifferentiated type,” finding him still gravely disabled and recommending Buckner's conservatorship be reestablished.

Buckner was then served at Patton State Hospital in San Bernardino County with notice and amended notice of the hearing on the petition.   After hearing the petition January 30, 1986, Judge Douglas R. Woodworth reappointed Thomson conservator of Buckner's person.   On February 4, 1986, Buckner filed a written request for a jury trial.  (§ 5350(d).)

Jury trial began March 11, 1986.   Two psychiatrists and Buckner's social worker testified Buckner was presently suffering from a mental disorder which prevents him from providing for his basic personal needs for food, clothing or shelter and, if on his own, he would not be able to take his medication in the proper dosages and at the appropriate times.

Dr. Dean R. Archer, a psychiatrist at San Diego County Community Mental Health facility (CMH), was qualified as an expert and testified he was Buckner's doctor while Buckner was at CMH pending the trial on the reestablishment petition.   He had examined Buckner three times a week from February 5 through February 28, 1986, and had talked with him two times the week of the trial.   He stated Buckner would not talk or respond to his questions during these examinations except for the two sessions right before trial.   During these two examinations, Buckner admitted to the presence of hallucinations and delusions, and told him he would leave the area to travel if he were on his own;  he “would not be in a position to continue receiving clinic care, medical care, if he were released.”   Buckner told Archer “he doesn't have to eat, he can go for six months without eating.”   He also said he would sleep under bridges.

Based on medical records and reports of Buckner's 22–year history of mental illness and Buckner's responses and non-responses to questions during the examinations, Dr. Archer diagnosed Buckner as having “paranoid schizophrenia, chronic type,” a mental disease which consists of mental confusion, delusions, hallucinations and disturbed behavior.   To control his mental condition, and help enhance his ability to provide for food, clothing or shelter, and hopefully cure it, Buckner was given dosages of prolixin, thorazene, and cogentin, among other drugs.   If he was not on medication, his hallucinations and delusions would become worse and he could become agitated, combative and disturbed.

Archer opined, if Buckner were on his own, his mental condition would prevent him from caring for himself;  he would not report to a clinic or take his medicine for his care or be able to adequately obtain food and prepare it for himself.   Nor did Archer see any way Buckner would be able to earn money for food, shelter or clothing.   Buckner had not been employed since 1964, he was preoccupied with delusions, and had been dependent on hospital care for the last seven to eight years.

On cross-examination, Archer agreed some behavioral manifestations by a patient in an institution could be caused by institutionalization rather than by mental disorder.   He also admitted Buckner was taking “very powerful” psychoactive drugs which could cause muscle tremors, sedation, skin ailments, blurred vision, nausa, nervousness, and dizziness, among other side effects.   While Buckner is physically able to feed himself, find clothing and shelter, and take medication in a controlled environment, Archer did not think Buckner would be able to do so outside such environment in light of his existing mental condition.

Dr. Maria L. Valdes, another qualified expert psychiatrist, testified she had worked with Buckner at CMH since March 3, 1986, and had examined him three times.   Based on a review of his records and conversations with him, she also diagnosed Buckner as having chronic paranoid schizophrenia.   During the first two examinations Buckner was basically mute but at the third session volunteered he suffered from hallucinations and delusions.   He told Valdes he is a generalissimo on permanent leave with the military;  he hears voices, both male and female;  he said “the voice is telling”—“They are dead.”  “Voices steal his appearance from him.   At times voices tell him to hurt people.   Voices also tell him about demons, gods, goddesses, and spirits.”

Extensively cross-examined as to the basis for her opinion, Valdes remained firm Buckner's behavior is the result of his mental condition.   She disagreed his behavior could be caused by a physical ailment or by being in an institution.   She stated, while possible, auditory hallucinations and delusions are not a common side effect of the drugs Buckner is taking.   Buckner further stated he had extremely high rank in all four areas of the United States Armed Forces.

As Buckner's social worker, Nesbitt assisted with providing food, clothing and shelter for Buckner whether he was willing or unwilling to accept it.   In the past few months, however, it had not been necessary to use coercive techniques to provide this care.   Buckner was doing well in a locked setting;  under such circumstances he was cooperative in meeting his needs.

During the trial, Buckner wrote Nesbitt a note which was received into evidence.   It stated he was still a generalissimo/admiralty in the military and had been so for 20 years;  he thus wanted to be in a military hospital.   The note also related he was not of this world and therefore he did not need to concern himself with matters of food, clothing and shelter.

In response to questions by Buckner's counsel, Nesbitt stated in the past three years working with Buckner, she had seen him refuse food when he was hungry.   Also, while released to a board and care facility for one week the year before, he had refused shelter available to him with the result of being again hospitalized in a more controlled facility.   While Buckner expressed a fear of being without medication, it was Nesbitt's experience, when given the opportunity to be on his own, Buckner didn't take the right dosages at the right times.

Buckner was then called to testify as an adverse witness under Evidence Code section 776.   When asked if he thought he had a mental problem, Buckner responded:  “Well, I have a need for the hospital and medication, you know.   It's not a mental problem.   It's having too much of the wrong dope and the medicine, you know.”   In response to other questions, he stated he had a need for a place to stay until he could leave, he wanted to leave right away, and wanted to return to his past.   He figured he could live with George Harrison;  the last time he saw Paul McCartney was in New Mexico;  he started and trained the band, the Beatles.   He also trained other bands, was a generalissimo and admiralty in military, he was commissioned in October of 1964 and went to boot camp.   He hears voices;  they try to stop him from being either one, good or bad.

At one point he stated, “My faith has been in the past from whatever.   I would think it would be demons.   My hands were burned, too.   The thing is, like, I just don't know what they are or who they are.   They have told me they are this, and they have told me they are that.   They also told me they are martians for music, you know.”   Asked if he were living on his own today, did he think he could provide for his own food, clothing and shelter, he said:  “I am a private․   I don't care to adjust, like to do it my way․   I wouldn't need money for food.   I have gone for years without eating in the past․   At the most, a candy bar every so often․   I wouldn't worry about it․   I wouldn't live anywhere but on the road.”

When further questioned about where he would stay, he answered he wouldn't try to get an apartment or house or anything;  that the last time he was on his own was in 1967 and then he started winding up in mental hospitals;  he would stay at Patton only if he had to stay somewhere;  he would like his own apartment or whatever;  he would like to live in a basement.

Asked how he could pay for a basement facility, he stated he had his ways;  he was a medal of honor winner in Vietnam and the “minimal” he could receive was $100 a day;  President Reagan told him he could have this money;  he also had the iron cross.   Buckner clarified he could receive money from the Veterans Administration if he wanted to but wasn't getting any money directly from the government.

Further, he said he had heard voices recently but the medicine helps;  the medicine also hurts but “it does help shut them up․”   He would take his medications because it helped alleviate some of the problems.   Buckner said he could purchase and prepare his own food as he was a steward;  he went to steward school “at Montford Point, North Carolina, USCM.”

Following this testimony, Buckner's counsel moved for a directed verdict on grounds the petitioner had failed to meet his burden of proof on the ultimate issues.   The motion was denied.   Buckner presented no affirmative evidence, and stated the jury instructions were acceptable, except for their length.   Both counsel then gave closing arguments and the court instructed the jury as to the law to be applied in this case.

Later that day, the jury returned a verdict finding Buckner has a mental disorder and as a result of the mental disorder he is unable to provide for his basic personal needs of food, clothing or shelter, and thus is gravely disabled.   The court then granted petitioner's motion to reestablish the conservatorship as it was established January 30, 1986 and confirmed the order made at that time.



On appeal, Buckner challenges the reestablishment of his conservatorship on grounds the trial court prejudicially erred in denying his in limine change of venue motion, in unduly restricting cross-examination of expert witnesses against him at trial, and in giving or failing to give certain jury instructions.

During the pendency of this appeal, the public conservator again petitioned to reestablish Buckner's conservatorship and pursuant to stipulation a new conservatorship was established January 20, 1987.   As Buckner does not challenge these latest proceedings, his appeal is technically moot.   However, because collateral consequences remain even after a conservatorship for a gravely disabled person has terminated (Conservatorship of Wilson (1982) 137 Cal.App.3d 132, 186 Cal.Rptr. 748) and Buckner's appeal raises issues which are capable of repetition yet evading review, a resolution is proper (Conservatorship of Manton (1985) 39 Cal.3d 645, 647, fn. 1, 217 Cal.Rptr. 253, 703 P.2d 1147;  Conservatorship of Forsythe (1987) 192 Cal.App.3d 1406, 1409, 238 Cal.Rptr. 77).   We thus review Buckner's various contentions.


 In limine, Buckner orally motioned the court for a change of venue based on lack of jurisdiction.   He argued trial must be in the county of his current residence, i.e., San Bernardino County, home of Patton State Hospital.   This ruling was correct.

When Buckner was originally placed under a conservatorship in 1985, his residence was San Diego County.   The public conservator at that time petitioned for the conservatorship in San Diego Superior Court under section 5350 et seq.   Section 5352 states the petition shall be filed in “the superior court in the county of residence of the patient to establish conservatorship.”   The current petition was filed pursuant to section 5361 for reestablishment of that conservatorship.   While Buckner was being housed at an out-of-county facility when this petition was filed, there is no evidence he had voluntarily chosen it for his residence.   Under the reasoning of In re Gandolfo (1984) 36 Cal.3d 889, 896, 900, 206 Cal.Rptr. 149, 686 P.2d 669, we find the county in which the original conservatorship was established has continuing jurisdiction over the conservatee for subsequent proceedings concerning the conservatorship.   The trial judge properly denied Buckner's motion for a change of venue on the grounds alleged.3


 During trial, Buckner attempted to impeach the testimony of Drs. Archer and Valdes with works of other experts not relied upon by them in reaching their opinions.   Buckner also moved to strike Archer's testimony on grounds psychiatric testimony was highly prejudicial and he was being denied the right to cross-examine the psychiatrists with works of other experts.   Pursuant to Evidence Code section 721(b), the court sustained objections to such impeachment and denied Buckner's motion to strike.   Buckner again contends these rulings denied him a fair opportunity to cross-examine the witnesses against him.   We disagree.

Evidence Code section 721 provides:

“(a) Subject to subdivision (b), a witness testifying as an expert may be cross-examined to the same extent as any other witness and, in addition, may be fully cross-examined as to (1) his [or her] qualifications, (2) the subject to which his [or her] expert testimony relates, and (3) the matter upon which his [or her] opinion is based and the reasons for his [or her] opinion.

“(b) If a witness testifying as an expert testifies in the form of an opinion, he [or she] may not be cross-examined in regard to the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publication unless:

“(1) The witness referred to, considered, or relied upon such publication in arriving at or forming his [or her] opinion;  or

“(2) Such publication has been admitted in evidence.”

Drs. Archer and Valdes based their respective diagnostic opinions and their opinions on whether Buckner could provide for his basic needs of food, clothing or shelter on general knowledge as a psychiatrist, and their medical records and interview sessions with Buckner.   Both doctors were thoroughly cross-examined as to those opinions.   In addition, Archer was asked about a general psychiatry manual which he stated he had read;  he was also asked about, but not familiar with, two named studies Buckner's counsel inquired about before the court sustained the objection under Evidence Code section 721.   None of the publications Buckner sought to inquire about was admitted into evidence.   A review of the record reveals Buckner was not denied the right to confront the experts.   As his counsel stated when he moved to strike Archer's testimony:  “I believe that I have done enough to cross-examine in this regard․”   We agree.


We now address Buckner's contentions of instructional error.   Analogizing his civil conservatorship proceeding to a criminal trial, he specifically argues:  (1) the court was required to instruct the jury he was presumed to be competent and could not be presumed to be incompetent because he had been evaluated or treated for a mental disorder;  (2) that such instruction must be given at the beginning of the trial so as to focus the jury's attention on the correct standard;  (3) the court should have instructed the jury to determine his present competency rather than the likelihood of his being incompetent in the future;  and (4) the court was required sua sponte to instruct the jury on the sufficiency of circumstantial evidence under instructions similar to CALJIC No. 2.01 explaining circumstantial evidence cannot be used to find guilt unless the circumstances cannot be reconciled with any other rational conclusion and each fact essential to the circumstances is proved beyond a reasonable doubt.   We conclude there was no instructional error under the facts of this case.

 While it is true our Supreme Court has recognized the important liberty interest threatened by conservatorship proceedings (Conservatorship of Roulet (1979) 23 Cal.3d 219, 223–235, 152 Cal.Rptr. 425, 590 P.2d 1), it has also recognized a proceeding initiated to take care of persons unable to take care of themselves, the commitment of mentally retarded persons, is not analogous to criminal proceedings (Cramer v. Tyars (1979) 23 Cal.3d 131, 137, 151 Cal.Rptr. 653, 588 P.2d 793).

“The commitment is not initiated in response, or necessarily related, to any criminal acts;  it is of limited duration, expiring at the end of one year․   The sole state interest, legislatively expressed, is 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.   The commitment may not reasonably be deemed punishment either in its design or purpose.”  (Ibid.)

Likewise, commitment for a person gravely disabled is unrelated to criminal conduct.   The proceedings are neither initiated by nor connected with criminal conviction.  (Conservatorship of Roulet, supra, 23 Cal.3d 219, 237, 152 Cal.Rptr. 425, 590 P.2d 1.)   The LPS simply seeks to provide remedial treatment, not retribution or protection of society interests;  an LPS commitment contains no element of either criminal or civil liability.  (See People v. Feagley (1975) 14 Cal.3d 338, 361–373, 121 Cal.Rptr. 509, 535 P.2d 373;  In re Gary W. (1971) 5 Cal.3d 296, 302–303, 96 Cal.Rptr. 1, 486 P.2d 1201.)

The purpose of an LPS conservatorship is to provide individualized treatment, supervision and placement of persons found to be gravely disabled.  (§ 5350.1.)  “Gravely disabled” is a term of art under the LPS meaning a condition in which a person, as a result of a mental disorder or chronic alcoholism, is unable to provide for his or her basic personal needs for food, clothing or shelter.  (§ 5008(h).)   Such conservatorship expires after one year and contains extensive statutory safeguards to ensure the least restrictive placement and conditions.  (§§ 5358 & 5358.7.)

 Although a proposed conservatee is entitled to an unanimous jury verdict and to a standard of proof beyond a reasonable doubt in a conservatorship trial (Conservatorship of Roulet, supra, 23 Cal.3d 219, 235, 152 Cal.Rptr. 425, 590 P.2d 1), a proposed conservatee, among other things, may not refuse to testify (Cramer v. Tyars, supra, 23 Cal.3d 131, 137, 151 Cal.Rptr. 653, 588 P.2d 793), is not entitled to Miranda warnings before being interviewed by a psychiatrist (Cramer v. Shay (1979) 94 Cal.App.3d 242, 245, 156 Cal.Rptr. 303;  see Conservatorship of Mitchell (1981) 114 Cal.App.3d 606, 170 Cal.Rptr. 759), may not claim the defense of double jeopardy (Conservatorship of Baber (1984) 153 Cal.App.3d 542, 549–550, 200 Cal.Rptr. 262), and is not entitled to application of the criminal law standard for personal waiver of the right to jury trial (Conservatorship of Maldonado (1985) 173 Cal.App.3d 144, 148, 218 Cal.Rptr. 796).

 Contrary to Buckner's assertion the trial court was required to sua sponte instruct the jury he is presumed competent and cannot be presumed to be incompetent because of his earlier medical evaluations or treatment for a mental disorder, competency is not at issue in determining the necessity of an LPS conservatorship.   There is no statutory presumption of competency involved in the establishment of an LPS conservatorship which corresponds to the presumption of innocence in a criminal case.  (See Evid.Code, § 501;  Pen.Code, § 1096.)   As noted above, an LPS conservatorship may be established for any person found “gravely disabled” as a result of mental disorder or impairment by chronic alcoholism.  “Gravely disabled” and “incompetent” are not synonymous terms or conditions.  “[C]onservatees are not, by reason of their conservatorship, automatically considered incompetent․”  (Conservatorship of Moore (1986) 185 Cal.App.3d 718, 732, 229 Cal.Rptr. 875.)   The court did not err by failing to instruct on a point not in issue.4

 Nor was the court required to sua sponte instruct the jury to determine Buckner's present competency rather than the likelihood of his being incompetent in the future.   Again, competency is not at issue in these proceedings.   Assuming Buckner means the court should have instructed the jury they must find he was presently gravely disabled, there is still no error.   The court gave the jury instructions for determining whether Buckner was gravely disabled in the present tense.   If Buckner desired more specific or explicit instructions in this regard, he should have requested them.  (Channell v. Anthony (1976) 58 Cal.App.3d 290, 318, 129 Cal.Rptr. 704;  People v. Carothers (1946) 77 Cal.App.2d 252, 254–255, 175 P.2d 30.)

Moreover, the court was not required here to sua sponte instruct the jury on the sufficiency of circumstantial evidence under instructions similar to CALJIC No. 2.01.   CALJIC No. 2.01 must only be given in a criminal trial when the People's case rests alone or substantially on circumstantial evidence for proof of guilt.5  (People v. Wiley (1976) 18 Cal.3d 162, 174, 133 Cal.Rptr. 135, 554 P.2d 881.)   The instruction need not be given when the problem of inferring guilt from a pattern of incriminating circumstances is not present (ibid.), when there is substantial direct evidence to support the finding, when the circumstantial evidence is only incidental or corroborative (People v. Williams (1984) 162 Cal.App.3d 869, 874–876, 208 Cal.Rptr. 790), or when the circumstantial evidence of intent or a certain mental state is not equally consistent with a conclusion of innocence (People v. Wiley, supra, 18 Cal.3d at p. 175, 133 Cal.Rptr. 135, 554 P.2d 881).

 Although theoretically, there is only one law of evidence for both civil and criminal trials, there are “particular rules of evidence which are designed mainly or exclusively for issues or situations arising in criminal proceedings.”  (1 Witkin, Cal.Evidence (3d ed. 1986) § 19, p. 21.)   Because a defendant is protected at trial by the presumption of innocence, the distinction between direct and circumstantial evidence has special significance in a criminal case.  (3 Witkin, Cal.Evidence (3d ed. 1986) § 1799, pp. 1757–1758.)  “[C]ircumstantial evidence, as distinguished from direct evidence, is testimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved.”  (People v. Goldstein (1956) 139 Cal.App.2d 146, 153, 293 P.2d 495.)   In criminal cases relying upon circumstantial evidence for proof of a defendant's guilt, CALJIC No. 2.01 or similar instruction on the sufficiency of circumstantial evidence is necessary to ensure the correctness of the eventual verdict and give meaning to the presumption of innocence.

 While today we determined a similar instruction may be required to be given if requested (Conservatorship of Walker (Dec. 8, 1987, D005053) 196 Cal.App.3d 1082, 242 Cal.Rptr. 289), we here address solely the issue whether such instruction must be given sua sponte by the court.   As noted above, a prospective conservatee is not a criminal defendant and grave disability is not a crime.   The purposes of penal statutes and those of the LPS are entirely different.  “A conservatorship proceeding is not a prosecution for a particular act, but an attempt to determine a condition which is subject to change.”  (Conservatorship of Baber, supra, 153 Cal.App.3d 542, 550, 200 Cal.Rptr. 262.)   The evidence in such a proceeding is necessarily circumstantial evidence of a person's condition or direct evidence of facts from which the trier of fact must infer a mental condition which prevents the individual from providing for his or her basic needs.   In such a case, much of the evidence before the factfinder is expert testimony by physicians who have interviewed and treated the proposed conservatee.   While their testimony may be treated as circumstantial evidence of the person's condition, it is generally based upon personal knowledge obtained by review of medical histories and direct observations of the prospective conservatee.

 The nature of the evidence in an LPS proceeding simply does not lend itself to the same distinctions as are involved in a criminal case.   Though a proposed conservatee is entitled to certain procedural due process rights to protect fundamental liberty interests at stake in an LPS proceeding (Conservatorship of Roulet, supra, 23 Cal.3d 219, 223–235, 152 Cal.Rptr. 425, 590 P.2d 1), “ ‘ “due process is flexible and calls for [only] such procedural protections as the particular situation demands.” ’  [Citations].”  (Cramer v. Gillermina R. (1981) 125 Cal.App.3d 380, 389, 178 Cal.Rptr. 69.)

The trial court here properly instructed the jury that before it could find Buckner gravely disabled it must unanimously find beyond a reasonable doubt Buckner had a mental condition and such prevented him from providing for his basic needs of food, clothing or shelter.   The judge gave definitions of reasonable doubt and gravely disabled and instructed the jury about direct and circumstantial evidence and expert testimony.   Buckner did not complain about the court reading the civil circumstantial evidence instruction, nor did he request any modification of that instruction to conform with the criminal instruction for sufficiency of circumstantial evidence.   Under these circumstances, Buckner cannot now complain about the court not instructing on this point.  (Channell v. Anthony, supra, 58 Cal.App.3d 290, 318, 129 Cal.Rptr. 704.)

 Assuming, arguendo, a court should sua sponte give an instruction similar to CALJIC No. 2.01 when warranted in LPS conservatorship cases, a review of the record shows the circumstantial evidence presented here was not equally consistent with a conclusion Buckner was not gravely disabled.   Both expert witnesses testified Buckner suffered from chronic paranoid schizophrenia which was exhibited by Buckner's hallucinations and delusions.   They also gave their opinions Buckner would not take medication in proper dosages and at appropriate times if left on his own.   Nor did they think he could provide for his basic needs of food, clothing or shelter without a controlled environment.

While his social worker stated he had been voluntarily taking his medication and was eating food provided him, there was no evidence presented to contradict the opinions of the experts he would not be able to provide for these needs in freedom from the conservatorship.   No evidence was presented to show he could provide for himself on his own or with the help of others outside the institution;  there was no evidence there was a responsible family member, friend or third party willing to assist Buckner in providing for his needs in freedom.

Much of Buckner's testimony was evidence from which the jury could only reasonably infer his mental disease, i.e., he testified to hearing voices that told him what to do, his testimony described many delusions of grandeur.   Buckner also testified he had no need for food and would not look for a place to stay.   That Buckner stated he would, if given a choice, take his medication, was not sufficient evidence to raise a reasonable doubt as to whether he would be able to obtain that medication, or provide for his own food, clothing or shelter outside an institutional setting.   Under the facts of this case, the court would not have been required to instruct under CALJIC No. 2.01 or similar instruction.

Judgment affirmed.


FN1. All statutory references are to the Welfare and Institutions Code unless otherwise specified.   When referring to statutory subparts we omit repetition of the word “subdivision.”.  FN1. All statutory references are to the Welfare and Institutions Code unless otherwise specified.   When referring to statutory subparts we omit repetition of the word “subdivision.”

2.   We augment the record with the superior court file MH 71708.

3.   Probate Code sections 2211–2213 provide procedures for the transfer of a conservatorship proceeding to another venue in the best interests of the conservatee.   These sections also apply to an LPS conservatorship (Welf. & Inst. Code, § 5350).   Buckner, however, did not utilize these sections by bringing a formal motion setting forth the required information and reasons for a change of venue.

4.   Although this conclusion renders irrelevant Buckner's contention the court must give preinstructions on his competency, we note Penal Code section 1093(f) makes preinstructions discretionary and not mandatory.

5.   CALJIC No. 2.01 provides:  “However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion.  [¶ ] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt.   In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which such inference necessarily rests must be proved beyond a reasonable doubt.  [¶ ] Also, if the circumstantial evidence [as to any particular count] is susceptible of two reasonable interpretations, one of which points to the defendant's guilt and the other to his innocence, it is your duty to adopt that interpretation which points to the defendant's innocence, and reject that interpretation which points to his guilt.  [¶ ] If, on the other hand, one interpretation of such evidence appears to you to be reasonable and the other interpretation to be unreasonable, it would be your duty to accept the reasonable interpretation and to reject the unreasonable.”

BUTLER, Associate Justice.

KREMER, P.J., and HUFFMAN, J.*, concur.