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Elton McQUARTERS, Petitioner, v. The SUPERIOR COURT of Alameda County, Respondent; The People, Real Party in Interest.
Petitioner Elton McQuarters was convicted in 1991 of a felony violation of Penal Code section 245, subdivision (a)(2) 1 and sentenced to 13 years imprisonment. He remains in state custody, ostensibly pursuant to the provisions of section 2970 et seq., that provide for the continued involuntary treatment of prisoners with a “severe mental disorder [which is] not in remission or cannot be kept in remission if the person's treatment is not continued, and that, by reason of his or her severe mental disorder, the prisoner represents a substantial danger of physical harm to others.” (Ibid.) The law provides that a mentally disordered offender (MDO) may be recommitted. “Prior to the termination of a commitment under this section, a petition for recommitment may be filed to determine whether the patient's severe mental disorder is not in remission or cannot be kept in remission without treatment, and whether by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others.” (§ 2972, subd. (e).) Notwithstanding this provision, in this case, no petition for recommitment was filed until 13 days after petitioner's previous term expired. Moreover, the People concede that there is no good cause that could excuse the tardy filing of the petition. Thus, the issue before us is whether the state can legally continue to hold an MDO whose term of commitment has expired when, absent any showing of good cause, no timely petition to extend the recommitment was filed. As explained below, we conclude that under these circumstances there is no valid authority to continue petitioner's MDO status. Consequently, we issue a peremptory writ of mandate directing the trial court to vacate its October 28, 2005, order denying petitioner's motion to dismiss the petition and demurrer and to enter an order sustaining the demurrer and granting the motion to dismiss.
FACTUAL AND PROCEDURAL BACKGROUND
After he was at first found mentally incompetent to stand trial, petitioner was subsequently found competent, and on July 12, 1991, pled guilty to assault with a firearm, a felony pursuant to section 245, subdivision (a)(2). He was sentenced to 13 years in state prison. He was first committed to the State Department of Mental Health as an MDO in 2000, and that commitment was extended annually thereafter in 2001 through 2004. In both 2003 and 2004 petitioner stipulated to his MDO status, and thereby extended his most recent commitment through September 22, 2005. No petition to extend this most recent commitment was filed until October 5, 2005, 13 days after it had expired. The district attorney conceded that there was no good cause that could excuse the tardy filing of the petition to extend the commitment, and offered in explanation that the case “fell through the cracks.” Petitioner demurred to the recommitment petition and moved to dismiss on October 28, 2005. The trial court denied petitioner's demurrer and motion “[f]or the protection of the public” and because there was no prejudice to petitioner. The judge stressed that the failure to file a timely petition was promptly remedied when discovered by the district attorney and that the intervening period when the petitioner was held after the expiration of the prior commitment was only 13 days. The court reasoned that the time limits in the statute fell “somewhere between directory and mandatory,” and, recognizing the need for guidance, encouraged petitioner to seek a writ. This petition seeking a writ of prohibition and mandate was filed on January 13, 2006. After reviewing the Attorney General's informal opposition we issued an order to show cause on February 2, 2006.
Petitioner suffers from schizophrenia, polysubstance dependence, and mild mental retardation. Over the course of eight hospitalizations at Atascadero he has at times been actively psychotic with auditory hallucinations and persecutory delusions. At other times (including most recently) he shows negative schizophrenic signs such as poor self-care, minimal use of language, social withdrawal, disorganized behavior, and disorganized speech. He attempts to light cigarettes through an electric socket and as recently as April 2005 he physically assaulted another patient.
Petitioner's long criminal history begins when he was a juvenile and includes convictions for receiving stolen property, loitering, second degree burglary, four convictions for burglary, and two for petty theft.
The most recent clinical assessment we have of petitioner is a June 2005 report from the medical director for Napa State Hospital, requesting that a petition be filed for petitioner's continued involuntary treatment. The report, signed by five different clinicians and mental health administrators, finds the petitioner has made no progress towards his discharge criteria. It concludes that he “clearly suffers from a severe mental disorder ․ Schizophrenia, Undifferentiated Type. His illness is not in remission as evidenced by his continued disorganized speech and thought processes, severe social withdrawal, and lack of basic self care. By reason of the severe mental disorder, Mr. McQuarters represents a substantial danger of physical harm to others as evidenced by several assaults he provoked in the past year and most recent one on April 14, 2005. In addition, he is at increased risk of starting an accidental fire․”
A. This Issue is Worthy of Writ Review
As a preliminary matter, the Attorney General urges us to deny the petition because “[p]etitioner does not demonstrate why the normal presumption that an appeal is an adequate remedy does not lie.” In making this argument, the Attorney General minimizes the fundamental issue raised by this case: whether or not there is any legal basis to detain petitioner. If there is no legal basis for petitioner's detention, it is imperative that the issue be dealt with promptly-without waiting for the delay attendant to proceedings below and the perfecting of an appeal. If a detention is illegal an appeal process that can only give relief months or years later is necessarily inadequate.2
B. The Mentally Disordered Prisoners Act
Petitioner has been confined, and the state suggests that he should continue to be confined, subject to the provisions of the Mentally Disordered Prisoners Act (MDPA). (§ 2960 et seq.) The MDPA reflects the Legislature's determination that some prisoners have a treatable, severe mental disorder that caused or was an aggravating factor in the crime for which they were committed, that the state has a compelling interest to protect the public from those prisoners who are not in remission, and that in order to protect the public, it is necessary to provide those prisoners continuing mental health treatment until the underlying condition can be kept in remission. (§ 2960.) For prisoners who meet specified criteria (§ 2962), based on the appropriate clinical recommendation, the district attorney may file a petition to extend their involuntary treatment for one year. (§ 2970.) The MDPA contains three deadlines for the formal process of extending an MDO commitment: (1) the appropriate clinician must submit an evaluation of the prisoner to the district attorney “not later than 180 days prior to the termination of parole, or release from prison if the prisoner refused to agree to treatment as a condition of parole ․ unless good cause is shown for the reduction of that 180-day period” (§ 2970); (2) “[t]he trial shall commence no later than 30 calendar days prior to the time the person would otherwise have been released, unless the time is waived by the person or unless good cause is shown” (§ 2972, subd. (a)); and (3) “[p]rior to the termination of a commitment under this section, a petition for recommitment may be filed to determine whether the patient's severe mental disorder is not in remission or cannot be kept in remission without treatment, and whether by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others.” (§ 2972, subd. (e).) It is the failure to file a timely petition for recommitment and comply with this third deadline that is the issue in this case.3
We readily accept that the “fundamental purpose of the MPDA [is] to protect the public.” (People v. Williams, supra, 77 Cal.App.4th at p. 451, 92 Cal.Rptr.2d 1; People v. Fernandez, supra, 70 Cal.App.4th at p. 129, 82 Cal.Rptr.2d 469 [“The fundamental purpose of the MDO provisions is ․ to protect the public from dangerous mentally disordered prisoners”] ) and if public safety were the only concern, the most prudent course of action would be to keep MDO's confined automatically and indefinitely at the state's pleasure. Rather, commitment and confinement must be imposed in a way that will also “protect a defendant's rights to liberty and procedural due process.” (Williams, supra, at p. 457, 92 Cal.Rptr.2d 1.) Indeed, absent appropriate safeguards, the law would not survive constitutional challenge. Fortunately, the MDPA was intended to and does safeguard individuals' liberty and due process. For example, unless waived, the defendant has the right to a unanimous jury verdict and the right to counsel. (§ 2972, subd. (a).) Both civil and criminal discovery rules are applicable and the state must prove its case “beyond a reasonable doubt.” (Ibid.) Counsel is provided to indigent prisoners. (§ 2972, subd. (b).) The recommitment period is not indefinite, but is limited to one year. (§ 2972, subd. (c).) Finally, the law makes explicit that committed individuals are entitled to the rights “set forth in Article 7 (commencing with Section 5325) of Chapter 2 of Part I of Division 5 of the Welfare and Institutions Code.” (§ 2972, subd. (g).) Those rights include “the same legal rights and responsibilities guaranteed all other persons by the Federal Constitution and laws and the Constitution and laws of the State of California, unless specifically limited by federal or state law or regulations.” (Welf. & Inst.Code, § 5325.1.) Among those rights guaranteed is the right to personal liberty, which our Supreme Court describes as a “fundamental interest.” (People v. Olivas (1976) 17 Cal.3d 236, 251, 131 Cal.Rptr. 55, 551 P.2d 375 [“We conclude that personal liberty is a fundamental interest, second only to life itself, as an interest protected under both the California and United States Constitutions.”].) Thus, we must recognize the constitutional underpinnings of those portions of the law that are designed to safeguard personal liberty.
C. The MDPA Deadline to File a Recommitment Petition
Two recent cases address unexcused late filings of petitions to recommit pursuant to the MDPA: Zachary v. Superior Court (1997) 57 Cal.App.4th 1026, 67 Cal.Rptr.2d 532 and People v. Allen (2006) 136 Cal.App.4th 644, 39 Cal.Rptr.3d 92, petition for review pending, petition filed March 15, 2006. Our decision today is informed by both opinions.
In Zachary no petition to extend an MDO's commitment was filed until 24 days after the expiration of the prior commitment. (Zachary v. Superior Court, supra, 57 Cal.App.4th at pp. 1028-1029, 67 Cal.Rptr.2d 532.) After the superior court denied Zachary's motion to dismiss the petition to recommit, the Court of Appeal issued a writ of mandate compelling the lower court to reverse its order. Declining to decide whether the requirement that a petition to recommit be filed prior to the expiration of the prior commitment period was mandatory, the Zachary court instead concluded that Zachary had been denied due process. (Id. at pp. 1036-1037, 67 Cal.Rptr.2d 532.) “Because the petition to extend petitioner's commitment was not filed until after his one-year recommitment term expired, petitioner obviously was unable to prepare for a preexpiration trial. Petitioner consequently has suffered prejudice, i.e., 24 days of unauthorized confinement in a state mental hospital prior to the filing of the petition for recommitment, followed by continued unauthorized confinement to date.” (Id. at p. 1036, 67 Cal.Rptr.2d 532.) The Zachary court then observed that the People offered no justification for the delay. Thus, there appears to have been nothing to counterbalance the prejudice suffered by the petitioner, and the court concluded the petitioner's due process rights had been violated.
This approach treats an unauthorized, involuntary detention as the serious violation it is, but allows for consideration of possible justification for a late filing-which happened to be absent in Zachary. But that part of the Zachary holding that states the late filing prejudiced the petitioner because he “obviously” could not prepare for trial prior to the expiration of his previous commitment seems to go farther than necessary. Here, we are reticent to find on the record before us that McQuarters has been prejudiced. It appears that the failure to file the recommitment petition was discovered by the district attorney, not the petitioner. There is nothing in the record to suggest that petitioner (or his lawyers) were even aware that his prior commitment had expired, much less that he was seeking to be let out of custody. Although it must be stressed that the factual record before us is silent on the issue of the real world benefits and detriments petitioner received as a result of his involuntary confinement for treatment, it is entirely possible that in sum he benefited from it.
Thus, it is not necessary for us to talk about prejudice to the petitioner, unless we mean solely prejudice to his legal right not to be held absent legitimate authority to do so, which would be to define “prejudice” so that, in effect, the deadline to file a petition to extend a commitment becomes mandatory. But the cases dealing with prejudice in the context of due process generally are referring to an entirely different concept. “The ultimate inquiry in determining a claim based upon due process is whether the defendant will be denied a fair trial.” (Scherling v. Superior Court (1978) 22 Cal.3d 493, 507, 149 Cal.Rptr. 597, 585 P.2d 219; see also People v. Mitchell (2005) 127 Cal.App.4th 936, 946, 26 Cal.Rptr.3d 163 [analyzing whether or not the tardy filing of the petition adversely affected defendant's trial preparation].) Here there is no reason to believe that the untimely filing of the petition to recommit would deprive petitioner of his right to a fair trial. Thus, we think it unwarranted to base our decision on the supposed “prejudice” McQuarters has suffered.
Allen adopts an entirely different approach and holds that “the statutory requirement that a petition be filed prior to the termination of an MDO commitment is a mandatory requirement with the consequence of dismissal for its violation.” (People v. Allen, supra, 136 Cal.App.4th at p. 648, 39 Cal.Rptr.3d 92.) In that case the prosecutor, without any showing of good cause, waited three months, until Allen sought habeas corpus relief, before filing a recommitment petition. The Allen court held that the requirement to file a recommitment petition prior to the expiration of a prior commitment is mandatory. In reaching its conclusion, the court first focused on the government's petition seeking an extension of Allen's commitment and pointed out that one cannot “extend” something that has already terminated. Here, however, the petition for involuntary treatment does not refer to any extensions. Rather, mirroring the language of the statute, it refers to the need for treatment to be “continued.” Here we presume that, although its involuntary nature is unauthorized, the petitioner's treatment has, in fact, continued. In any event, we decline to base our holding on minor variations in wording that a district attorney may use when petitioning for recommitment.
But the Allen court's analysis of the statutory scheme as a whole, harmonizing each of its provisions is persuasive. First the court observed that both the 180-day deadline (for the medical director to issue a report) and the 30-day deadline (to commence the commitment hearing) contain provisions that allow them to be excused for good-cause, but the deadline to file a timely recommitment petition does not. It then compared the apparent purposes of the various deadlines. The court characterized the 180-day and 30-day deadlines as promoting the “expeditious resolution of pending matters,” and it found them to be a matter of convenience, as opposed to “initiating an action,” which the court considered mandatory. Although we have reservations about whether the 180-day deadline for the medical director to submit a report relates to a “pending” matter, we agree that both the 180-day and 30-day deadlines are primarily for “convenience,” i.e., to ensure that the normal course of events will allow for timely judicial resolution of a commitment extension.
We also believe another factor distinguishes the deadline for initiating an action from the other non-mandatory deadlines. It is a fundamental principle of statutory construction that laws are to be construed so as to preserve their validity. (See, e.g., Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1266, 2 Cal.Rptr.3d 739.) Here, commitments pursuant to the MDPA pass constitutional muster because they are subject to the judicial process including periodic review. It is the filing of the petition to recommit that routinely brings a particular case to the court's attention.4 In other words, it is the timely filing of a petition to recommit that triggers the judicial process to extend a commitment. This is a critical element, since without it there will often be no judicial review of any extended commitment, and without periodic judicial review, this commitment scheme would not survive constitutional scrutiny. (See Jackson v. Indiana (1972) 406 U.S. 715, 738, 92 S.Ct. 1845, 32 L.Ed.2d 435 [“At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed”]; Clark v. Cohen (3d Cir.1986) 794 F.2d 79, 86 [“Periodic reviews are required because if the basis for a commitment ceases to exist, continued confinement violates the substantive liberty interest in freedom from unnecessary restraint”].) It thus follows that unlike the 180-day and 30-day deadlines, this deadline-to file the recommitment petition prior to the expiration of a prior commitment-must be mandatory.
Although we find section 2972, subdivision (e) contains a mandatory deadline, we decline to reach the question of whether a failure to meet this deadline deprives the court of jurisdiction. The terms “mandatory” and “jurisdictional” deadlines are often used interchangeably. (See, e.g., People v. Allen, supra, 136 Cal.App.4th at p. 659, 39 Cal.Rptr.3d 92 [conc. & dis. opn. of Bamattre-Manoukian, Acting P.J.].) By concluding that the deadline to file the recommitment petition is mandatory, we do not reach the question of whether the deadline is also “jurisdictional,” i.e., whether a court is divested of jurisdiction by such a failure. First, we note that the term is imprecise. (See People v. Williams, supra, 77 Cal.App.4th at p. 447, 92 Cal.Rptr.2d 1 [distinguishing between fundamental jurisdiction, which goes to the court's power to determine a case and a court's having acted in “excess of jurisdiction,” where a court has fundamental jurisdiction but only to be able to act with the occurrence of specified prerequisites].) The facts of this case-specifically, the lack of any proffered excuse for the late filing-do not present the question to us for decision and we decline to speculate under what circumstances, if at all, a late filing of the petition to recommit might be excused.
D. The Case Law Interpreting Statutes with Analogous Deadlines Supports Our Conclusion that the Deadline for Filing a Petition to Recommit is Mandatory.
Both Zachary and Allen, as well as the briefs submitted by the parties, discuss at length decisions based on other statutes with analogous deadlines to those of the MDPA.5 As Allen points out the MDPA differs from both the NGI and MDSO situation in that the other two regimes deal with individuals who have been “committed for treatment ‘in lieu of criminal punishment’ while MDO's have already been criminally punished and would be entitled to release but for the MDO proceedings.” (People v. Allen, supra, 136 Cal.App.4th at p. 654, 39 Cal.Rptr.3d 92, citing In re Moye (1978) 22 Cal.3d 457, 463, 149 Cal.Rptr. 491, 584 P.2d 1097.) Thus, arguably, NGI's and MDSO's are being held at least partly under the authority of the criminal court that determined the defendant was better suited for treatment than for punishment. By contrast, with MDO's for whom the prosecutor is seeking recommitments, there is no authority of a criminal court. They were last civilly committed and that civil commitment has expired. In addition, the Legislature provided in the NGI statute that the statutory time limits are “not jurisdictional.” (See § 1026.5, subd. (a)(2).)
Recognizing the distinctions between those statutory regimes and the MDPA, we still find significant support amongst those decisions for our conclusion that the deadline for the prosecutor to file a recommitment petition under the MDPA is mandatory. For example, People v. Mitchell, supra, 127 Cal.App.4th 936, 26 Cal.Rptr.3d 163, dealt with a prosecutor's filing of a petition to extend the initial commitment of a defendant who had pled not guilty by reason of insanity two weeks prior to the expiration of the defendant's prior commitment (when the statute required that it be filed 90 day prior to the expiration of the original commitment). In that case this court found that the deadlines were not jurisdictional and that the defendant had not been prejudiced by the resulting delay in his trial. The Mitchell court distinguished Zachary: “In Zachary ․ the district attorney's petition had been filed more than three weeks after the defendant's commitment term had already expired.” (People v. Mitchell, supra, at p. 946, 26 Cal.Rptr.3d 163.) The court's emphasis on this fact suggests that the expiration of the prior commitment term is critical.
In People v. Pacini (1981) 120 Cal.App.3d 877, 174 Cal.Rptr. 820, proceedings to extend the commitment of an individual who had pled not guilty by reason of insanity to voluntary manslaughter pursuant to an earlier statute were held to be invalid because they had been initiated after the expiration of the prior commitment period. In analyzing Pacini, People v. Minahen (1986) 179 Cal.App.3d 180, 224 Cal.Rptr. 460 construed Pacini's teaching to be that the deadline requiring a recommitment petition in section 1026.5 proceedings “should be enforced absent good cause for relieving the district attorney from the consequence of a late filing.” (Minahen, supra, at p. 188, 224 Cal.Rptr. 460.) In other words, Minahen rejected the idea that a late filing deprived the court of fundamental jurisdiction to hear a case, but agreed that the deadlines were mandatory, absent good cause for failing to meet them. A similar result was reached by the Fourth District construing the deadlines of former Welfare and Institutions Code section 6316.2 (dealing with an MDSO). There a mistake had been made concerning the effect of the defendant's outpatient history on the calculation of custody credits. Discussing NGI deadlines, the court wrote: “Although these time limits are not jurisdictional ․ an order for extended commitment will generally be void if the petition was filed after the commitment expired [citations] or so close to the expiration date that defendant does not have a fair opportunity to prepare for trial.” (People v. Dias (1985) 170 Cal.App.3d 756, 762, 216 Cal.Rptr. 295.) The court went on to excuse the late filing of the petition because it was due to “a mistake of law on an issue where the relevant statute was not explicit and there was no controlling judicial decision directly on point.” (Id. at p. 763, 216 Cal.Rptr. 295.) In other words, where the prosecutor had committed an excusable error, the court would uphold the validity of the proceeding. (See also Baker v. Superior Court (1984) 35 Cal.3d 663, 200 Cal.Rptr. 293, 677 P.2d 219 [allowing recommitment of MDSO's after the expiration of the former Welf. & Inst.Code, §§ 6300 to 6330 even though no “savings clause” had been explicitly adopted when the Legislature transitioned to a different commitment scheme].) As the Dias court pointed out, the result it reached was more lenient than the result in People v. Saville (1982) 138 Cal.App.3d 970, 188 Cal.Rptr. 376. There, due to an error in the calculation of credits, a petition for reconfinement of a defendant committed pursuant to section 1026.5 was filed five days late. The Second District affirmed the trial court's refusal to entertain the late petition.
In short, the relevant case law-including opinions interpreting the MDPA itself as well as similar statutes-suggests that courts weigh seriously the primary purpose of the law to protect the public, and that courts will examine failures to comply with many of the statutory deadlines in light of the real world effect the failure had on the prisoner's rights, as well as the reason for the government's failure. But the requirement that a petition to recommit be filed prior to the expiration of a prior commitment period is special. The filing of a petition initiates the legal process of recommitment, with its attendant safeguards for the patient who is being involuntarily confined. Courts differ concerning whether the tardy filing of a recommitment petition can be excused for good cause-a question not before us today. But the overwhelming weight of authority suggests that the unexcused late filing of a petition means the prisoner can no longer be involuntarily held pursuant to the MDPA.6 To hold otherwise would mean that no timely governmental action would be required to hold MDO's indefinitely beyond the expiration of their legal periods of commitment.
Let a peremptory writ of mandate issue directing respondent superior court to vacate its order denying petitioner's motion to dismiss and overruling his demurrer and to enter a new order sustaining the demurrer and granting said motion.
1. All further statutory references are to the Penal Code unless otherwise indicated.
2. The Attorney General also urges us to reject this petition as untimely, given that the superior court denied petitioner's motion to dismiss on October 28, 2005, and the instant petition was not filed until January 13, 2006. We have discretion to entertain writ petitions filed beyond the normal 60-day deadline. (Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347, 356, 99 Cal.Rptr.2d 627.) Because of the importance of the issue raised by this petition and the lack of any prejudice to the government, we exercise our discretion to entertain the petition.
3. Since the petition for recommitment was not filed until after the expiration of the prior term of commitment, necessarily, the trial was not commenced at least 30 days prior to the expiration of the last commitment term. Case law establishes, however, that a violation of the 30-day deadline that did not also involve the tardy filing of the petition to recommit was not a violation of a mandatory deadline. (People v. Williams (1999) 77 Cal.App.4th 436, 454, 92 Cal.Rptr.2d 1.) Similarly, dismissal is not required where the medical director had been 120 days late in filing his report and trial was not commenced within 30 days of the defendant's scheduled release date. (People v. Fernandez (1999) 70 Cal.App.4th 117, 82 Cal.Rptr.2d 469.) We have no reason to question these holdings.
4. Of course, if an individual is being held illegally, that individual's counsel could raise the issue. But that assumes an awareness that may or may not arise in a particular case.
5. Section 1026.5, sets out procedures for individuals pleading not guilty by reason of insanity (NGI). It requires that “[n]ot later than 180 days prior to the termination of the maximum term of commitment ․ the medical director of a state hospital in which the person is being treated [or other suitable officials] shall submit to the prosecuting attorney his or her opinion as to whether or not the patient is a person [who comes under this statute].” (§ 1026.5, subd. (b)(2).) “The trial shall commence no later than 30 calendar days prior to the time the person would otherwise have been released ․” (§ 1026.5, subd. (b)(4).) Unlike the MDPA, it also requires that the prosecuting attorney file the petition “no later than 90 days before the expiration of the original commitment unless good cause is shown.” (§ 1026.5, subd. (b)(2).) Former Welfare and Institutions Code section 6316.2, dealing with the commitment of mentally disordered sex offenders (MDSO's), provided that the trial on the petition for an extended commitment “shall commence no later than 30 days prior to the time the patient would otherwise have been released by the State Department of Mental Health.” (Former Welf. & Inst.Code, § 6316.2, subd. (d).) This scheme also provided that the prosecutor was to file a petition for an extended commitment at least 90 days prior to the expiration of the original commitment. (Former Welf. & Inst.Code, § 6316.2, subd. (b).) It contains no firm deadline for the submission of a mental health report, other than logically, it must have preceded the submission by the prosecuting attorney of the recommitment petition.
6. We hasten to state the obvious here: in holding that petitioner may no longer be held pursuant to the MDPA we are not determining that he is suitable for release. Indeed, county counsel has already petitioned the superior court for the appointment of a conservator on behalf of the petitioner pursuant to Welfare and Institutions Code section 5350 et seq.
McGUINESS, P.J., and PARRILLI, J., concur.
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