IN RE: the Conservatorship of the Person and ESTATE of Mabel ROULET

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Court of Appeal, Second District, Division 4, California.

IN RE: the Conservatorship of the Person and ESTATE of Mabel ROULET, Conservatee. May Morrison HEAP, Petitioner and Respondent, v. Mabel ROULET, Respondent and Appellant.

Civ. 48430.

Decided: December 09, 1976

Glen Mowrer, Jr., Public Defender, Gilbert W. Lentz and Richard Savidge, Deputy Public Defenders, for conservatee and appellant. George P. Kading, County Counsel, and Marvin Levine, Deputy County Counsel, Santa Barbara, for petitioner and respondent.

In 1974 petitioner, the Public Guardian of Santa Barbara County, was appointed as conservator of the person and estate of appellant, Mabel Roulet, under the provisions of the Lanterman-Petris-Short Act (Welfare and Institutions Code, §§ 5000 et seq.) On November 24, 1975, the Public Guardian filed her petition to re-establish that conservatorship for an additional year. The proceedings were conducted under sections 5350 and 5361 of that act. These sections provide for the appointment and reappointment of a conservator for ‘any person who is gravely disabled as a result of mental disorder or impairment by chronic alcoholism.’ Pursuant to subdivision (d) of section 5350, appellant demanded a jury trial on the issue of whether she was gravely disabled. A jury of twelve was impaneled and, after hearing evidence, returned a verdict that appellant was so disabled. The trial court thereafter made and entered its order re-establishing the conservatorship, providing, inter alia, for a 30-day commitment of appellant to a state hospital and restricting her right to drive an automobile and to enter into contracts. The conservatee has appealed from the order so entered. For the reasons set forth below, we reverse.

On this appeal, counsel for the conservatee raises only two issues: (1) that the trial court refused to give a requested instruction calling for a unanimous verdict by the jury and, instead, instructed the jury that it might return a verdict by nine of the twelve members; and (2) that the trial court refused to instruct the jury that it must find beyond a reasonable doubt that the conservatee was gravely disabled.

I

The issue sought to be raised by the first contention is not before us on this appeal. The clerk's transcript contains the verdict returned by the jury, but that form is silent as to the number of jurors concurring; the minute entry of the hearing does not show that polling of the jury was requested or undertaken; the order appealed from recites that the verdict was unanimous. On that record, it is not material to this case whether the jury should have been instructed to return only a unanimous verdict.. Appellant has received all that she could have received had her requested instruction been given. We do not determine important constitutional issues not properly presented on the record before us.

II

We agree with appellant that she was entitled to an instruction that the jury's finding must be one reached by the ‘reasonable doubt’ standard of proof.

Although proceedings under the Lanterman-Petris-Short Act are nominally ‘civil,’ they are, in effect, the equivalent of other proceedings, similarly denominated, that have been held to be essentially criminal in nature.

The County Counsel, appearing for the petitioner, makes the contention that any analogy to the cases hereinafter discussed is improper. His contention is that, in cases such as that before us, the jury determines only the issues of status and does not, in its verdict, order a conservatorship to be created or to be re-established. He points to the fact that, under the applicable sections of the Act, it is the trial court, and not the jury, that determines whether a ‘gravely disabled’ person shall be put under conservatorship or be subjected to some other form of care, and that the conservatee is subjected to incarceration only by virtue of the court's order and not necessarily by the verdict, and to similar discretions vested in the trial court. This argument is fallacious. In admittedly criminal cases, a trial jury decides only the issues of guilt or innocence; it remains for the trial court (except where its powers are expressly limited by statute) to determine whether the defendant shall be incarcerated or be placed on probation, with or without detailed supervision; the trial court, similarly, may impose only a jail term under a grant of probation in lieu of longer imprisonment in a state prison. It is the fact that a jury verdict in a criminal case subjects a person to the possibility of incarceration, not the fact of ultimate disposition, that, under the cases we discuss, marks the distinction between cases truly ‘civil’ and those essentially criminal.

In People v. Burnick (1975) 14 Cal.3d 306, 318, 121 Cal.Rptr. 488, 496, 535 P.2d 352, 360, the Supreme Court held that, in proceedings under the mentally disordered sex offenders act (Welf. & Inst.Code, §§ 6300 et seq.), a finding that a person is subject to that act must be based upon the reasonable doubt standard. Relying on the decision of the United States Supreme Court in In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, which mandated the use of the reasonable doubt standard in juvenile court cases, our court said:

‘Again the Supreme Court's analysis applies equally—if not more so—to the California mentally disordered sex offender law. First, as we recognized in Gross v. Superior Court (1954) 42 Cal.2d 816, 821, 270 P.2d 1025, when a man is charged with being a mentally disordered sex offender ‘His liberty is at stake.’ That threat is fulfilled in the order of commitment. In common with all those confined against their will for treatment of mental illness, a person committed under our statute suffers a ‘massive curtailment of liberty’ (Humphrey v. Cady (1972) supra, 405 U.S. 504, 509, 92 S.Ct. 1048, 31 L.Ed.2d 394 [402]). Indeed, his personal deprivation is far in excess of that experienced by a youth adjudged to be a juvenile delinquent.

‘. . .

‘The second justification for the standard of proof beyond a reasonable doubt relied on in Winship is the ‘stigma’ and loss of ‘good name’ (397 U.S. at pp. 363, 364, 367, 90 S.Ct. 1068 [25 L.Ed.2d at pp. 374, 375, 377]) which follow from a criminal conviction or an adjudication of juvenile delinquency. Surely no less a stigma results from a judicial pronouncement that a man is both ‘mentally disordered’ and a ‘sex offender.’ In the ideal society, the mentally ill would be the subjects of understanding and compassion rather than ignorance and aversion. But that enlightened view, unfortunately, does not yet prevail. The stigma borne by the mentally ill has frequently been identified in the literature: ‘a former mental patient may suffer from the social opprobrium which attaches to treatment for mental illness and which may have more severe consequences than do the formally imposed disabilities. Many people have an ‘irrational fear of the mentally ill.’ The former mental patient is likely to be treated with distrust and even loathing; he may be socially ostracized and victimized by employment and educational discrimination. Finally, the individual's hospitalization and posthospitalization experience may cause him to lose self-confidence and self-esteem. [¶] The legal and social consequences of commitment constitute the stigma of mental illness, a stigma that could be as socially debilitating as that of a criminal conviction.' (Fns. omitted.) (Developments in the Law—Civil Commitment of the Mentally Ill (1974) 87 Harv.L.Rev. 1190, 1200–1201; accord, Rosenhan, On Being Sane in Insane Places (1973) 13 Santa Clara Law. 379, 385, and authorities cited in fn. 11.)'

We cannot regard that language as meaning anything other than that, in proceedings under the Lanterman-Petris-Short Act, such as the present one, the reasonable doubt standard must be applied. The prospective conservatee, like the person subjected to the mentally disordered sex offenders act, and the juvenile subjected to ‘treatment’ under the juvenile court law, is subject both to the risk of incarceration for a substantial period and to a life-time stigma of having been found to be not only mentally disturbed, but gravely mentally disordered. The prospective conservatee is entitled to remain free from those results until and unless the status of being ‘gravely disabled’ has been proven beyond a reasonable doubt.

The order appealed from is reversed.

KINGSLEY, Acting Presiding Justice.

DUNN and JEFFERSON, JJ., concur.