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IN RE: Elizabeth GRANT

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

IN RE: Elizabeth GRANT, on Habeas Corpus.

No. D006140.

Decided: February 26, 1988

 Linda A. Corrao, San Diego, for petitioner. Lloyd Harmon, Jr., County Counsel, Daniel J. Wallace, Chief Deputy and Grace M. Goodall, Deputy County Counsel, San Diego, for respondent.

Ordered not to be officially published May 18, 1989.

Elizabeth Grant was placed in a San Diego County Department of Mental Health facility (CMH) for 72–hour treatment and evaluation under the Lanterman–Petris Short Act (LPS).  (See Welf. & Inst. Code,1 §§ 5000 et seq., 5150.)   CMH professional staff then certified her for a 14–day short-term involuntary intensive treatment based on their evaluation she was gravely disabled.  (See § 5250 et seq.)   She filed a petition for a writ of habeas corpus challenging the 14–day commitment.  (See §§ 5275 & 5276.)   The court denied the writ, finding by a preponderance of the evidence Grant was gravely disabled.

Grant's petition here for a writ of habeas corpus challenges the standard of proof applied by the trial court arguing the standard for judicial review of 14–day commitments is proof beyond a reasonable doubt.   We shall hold the habeas review under sections 5275 and 5276 of the LPS of such short-term commitment for treatment requires a finding by a preponderance of the evidence there is probable cause to believe the person certified is gravely disabled, and deny the petition.


 While Grant has been released from CMH, we reach the merits of her claim as her petition raises an issue of importance upon which there is no direct authority and which is capable of repetition yet evading review (Conservatorship of Manton (1985) 39 Cal.3d 645, 647, fn. 1, 217 Cal.Rptr. 253, 703 P.2d 1147), i.e., what is the standard of proof applicable to the statutory habeas corpus review of a 14–day certification for intensive evaluation and treatment under the LPS?


 The LPS sets forth a comprehensive scheme for involuntary evaluation and treatment of persons suspected of being gravely disabled.  (§ 5000 et seq.)  A person is gravely disabled under the LPS if, as a result of a mental disorder, he or she is unable to provide for his or her basic needs for food, clothing or shelter.  (§ 5008, subd. (h)(1).)   The LPS provides for an initial 72–hour period of emergency confinement after which the person must be released unless he or she consents to voluntary treatment or the certification process authorizing up to 14 days of involuntary intensive treatment is commenced.  (§§ 5150–5152.)

Three conditions, however, must be met before a person can be certified for this additional treatment period:  (1) the professional staff at the facility where the person is detained must analyze the patient's condition and conclude he or she suffers from a mental disorder which causes the patient to be gravely disabled;  (2) the county must have designated the facility to provide for the treatment and the facility must agree to treat the patient;  and (3) the patient must have refused voluntary care after being advised of the need for further treatment.  (§ 5250.)

If the criteria are met, among other things, two mental health professionals must sign a notice of certification and personally serve it on the person certified.  (§§ 5251–5253.)   At that time the person certified must be informed of the right to assistance of counsel, the right to challenge the commitment by habeas corpus review under section 5275, and the right to a certification review hearing to determine probable cause for the detention.  (§§ 5254–5254.1.)   Unless a patient requests judicial review by habeas corpus (§§ 5275, 5276), the certification review hearing is mandatory and must be held within seven days after the patient is certified for the 14–day treatment period.  (§§ 5256, 5275–5276.)

 At the certification review hearing the patient has the right to counsel, the right to call witnesses and the right to cross-examine witnesses.  (§ 5256.4.)   The patient will be released immediately if the hearing officer does not find probable cause he or she is gravely disabled as the result of an existing mental disorder.  (§§ 5256.5, 5256.6.)


If the patient requests judicial review by way of the LPS habeas section before the mandatory certification hearing, as here, or at any time during the 14 days of intensive treatment, an evidentiary hearing must be held within two court days after the petition is filed unless the matter is properly continued.  (§§ 5275, 5276.)  “If the court finds, (a) that the person requesting release is not, as a result of mental disorder ․ gravely disabled, (b) that he or she had not been advised of, or had accepted, voluntary treatment, or (c) that the facility providing intensive treatment is not equipped and staffed to provide treatment, or is not designated by the county to provide intensive treatment he or she shall be released immediately.” 2  (§ 5276.)

Neither the LPS nor case law establish the standard of proof applicable to these statutory writ proceedings.   The trial court concluded the standard was preponderance of the evidence;  Grant argues for proof beyond a reasonable doubt.   As explained below, we conclude the correct standard is probable cause by a preponderance of the evidence.


Section 5256.6 requires a finding of probable cause at the certification review hearing by the person conducting the hearing that the certified person is gravely disabled to warrant the additional 14–day commitment.   Under section 5256.5, if the hearing person finds there is not probable cause to believe the certified person is gravely disabled, the person may no longer be involuntarily detained.   The probable cause standard was included in LPS sections enacted in 1982 in response to Doe v. Gallinot (C.D.Cal.1979) 486 F.Supp. 983, affd. (9th Cir.1981) 657 F.2d 1017.  (§§ 5256.5 & 5256.6, added by Stats.1982, ch. 1598, § 4.)   While Gallinot held due process compelled mandatory review of an LPS certification, such holding is suggestive that probable cause is the standard for habeas corpus review of an LPS certification.

Gallinot considered the deprivation of liberty caused by civil commitments and the high possibility of error inherent in confinement decisions.  (Id. at pp. 991–994.)   While recognizing the short-term LPS scheme provided for habeas review, the court found such was inadequate because of the possibility the patient would not understand his or her right to such review.  (Id. at pp. 991–992.)   Gallinot held due process was only safeguarded by a hearing “at which a person or group of persons independent of the mental hospital conducts an evaluation to determine whether there is probable cause for detaining the person.”  (Id. at p. 994.)   Declaring probable cause the standard of proof for a grave disability finding, the court stated:  “A probable cause hearing is not one where the State must defend a final judgment of grave disability complete with medical and psychiatric findings.   A probable cause hearing requires only that the State show probable cause for confinement—i.e., probable cause for a finding of grave disability so as to justify the [14–day treatment].”  (Ibid.)   Gallinot thus holds the probable cause standard is sufficient to satisfy federal due process concerns for short-term commitments.

Generally, the standard or degree of proof in civil cases when no other standard is prescribed is the preponderance of the evidence standard.  (Evid.Code, § 115.)  “This is also known as the balance-of-probabilities standard.  [I]t requires a party to convince the trier of fact that the existence of a fact sought to be proved is more probable than its nonexistence.”  (2 Jefferson, Cal.Evid. Benchbook (2d ed. 1982) § 45.1, p. 1639, 1641.)   This standard readily equates with the concept of probable cause as that term connotes having more evidence for than against.  (See People v. Miller (1972) 7 Cal.3d 219, 225, 101 Cal.Rptr. 860, 496 P.2d 1228;  Black's Law Dict. (5th ed. 1979) p. 1081, col. 1.)   In statistical terms, the burden would be something-more-than a 50 percent likelihood the fact in contention is true.   Applying this standard to the certification review hearings under the LPS, the 14–day additional treatment would only be justified by a finding it is more likely than not the patient is gravely disabled.

 While the Legislature did not amend the sections for habeas review of short-term treatments (§§ 5275, 5276) at the time it enacted the certification review sections, familiar rules of statutory construction and equal protection of the law suggest the same standard of proof as in the certification review hearings applies for such judicial review.  “It is well established that a specific provision should be construed with reference to the entire statutory scheme of which it is a part․”  (Bowland v. Munici  Court (1976) 18 Cal.3d 479, 489, 134 Cal.Rptr. 630, 556 P.2d 1081.)   Sections 5275 and 5276 are intricately intertwined with the statutory scheme for 14–day certifications.   To posit a higher standard for the statutory habeas review of certifications would unfairly discriminate against those certified persons who do not, or cannot because of their disabilities, seek habeas review.  (See §§ 5252–5278.)   Stated differently, certified persons whose status is reviewed at the section 5256 hearing would be subject to a lesser standard than those pursuing habeas review and thus more likely to be detained the full 14 days for treatment.

Moreover, a higher burden at this stage would encumber the existing procedural safeguards for the certification process without added benefit to the individual who desperately needs mental health treatment.   Because the statutory scheme for the 14–day treatment period contains so many short limitation periods, the requirement of proving the patient gravely disabled beyond a reasonable doubt would most likely never be met.   Without much time to prepare and bring in the testimony of the people most familiar with the individual, the state would be hard pressed to meet the burden.   Unlike in long-term commitment proceedings where the state has time to gather such evidence to meet a higher burden, a similar standard for justifying short-term treatment would likely preclude the very individual who most needs the state's emergency treatment from getting that care.   Due process simply does not require proof beyond a reasonable doubt at a hearing on a petition for a writ of habeas corpus seeking to nullify a temporary 14–day commitment.

 We thus hold the burden of proof required for a statutory habeas review of a short-term commitment is the existence of more evidence than not, i.e., by evidence that preponderates, the patient is gravely disabled.   Procedurally, the state has the initial burden of showing probable cause for the patient's detention and that all procedures have been properly followed in certifying the patient for treatment, and the petitioner-patient has the burden of persuading the court probable cause does not exist for the detention.


 Using this standard, we would now normally independently review the record to determine whether the state has met its burden of proving probable cause for Grant's 14–day confinement and whether Grant has met her burden of showing the evidence preponderates otherwise.  (See In re Wright (1978) 78 Cal.App.3d 788, 801–802, 144 Cal.Rptr. 535.)   Grant, however, has long since been released from the CMH commitment of which  she complains.   Under these circumstances, we decline to review her petition.

Petition dismissed.


FN1. All statutory references are to the Welfare and Institutions Code unless otherwise specified..  FN1. All statutory references are to the Welfare and Institutions Code unless otherwise specified.

2.   Contrary to traditional habeas corpus proceedings, the LPS statutory scheme allows a patient to proceed as a petitioner without first having to show a prima facie case the detention is without probable cause.   The LPS instead places the burden on the responding facility and county to demonstrate probable cause for the confinement and to show that voluntary treatment was refused, that the facility can provide proper treatment, and that the treatment is available.  (See Cal.Conservatorships, (2d ed. 1983) § 8.60, at p. 547.)  “As a practical matter, however, the burden of persuasion [still] lies with the petitioner.”  (Ibid.)

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