IN RE: Conservatorship of The Person of James MANTON (1984)

James Manton appeals a judgment granting the County of San Diego, Department of Mental Health's petition for conservatorship with the power to involuntarily commit Manton to a state mental institution (Lanterman-Petris-Short Act, Welf. & Inst.Code,1 § 5000, et seq.) after a jury found him gravely disabled.

I

While being treated at San Diego Mental Health Services, Manton was referred for conservatorship by the Counselor of Mental Health (§ 5352).   Robert Deney, a mental health counselor, prepared a conservatorship investigation report (§ 5354) containing information from Manton's hospital and medical records (including statements of doctors and hospital attendants), conversations with Manton, and conversations with Manton's father (including statements Manton's father said were made by Manton's mother).   The court appointed a temporary conservator for Manton (§ 5353) pending a hearing on the Counselor in Mental Health's petition for appointment of a conservator (§§ 5350, 5365;  Prob.Code, § 1451).   At the hearing the court found Manton gravely disabled, but the finding was vacated after Manton requested a jury trial on the issue of grave disability (§ 5350).   At trial the court agreed with Manton's assertion the report and Deney's testimony contained hearsay, but found both were admissible in evidence under section 5354.

II

 Manton contends the court erred in finding section 5354 required it to admit in evidence in his jury trial the entire section 5354 conservatorship investigation report and Deney's hearsay testimony.   He asserts while section 5354 allows the court to consider the entire report at the hearing to appoint a conservator, it does not require the court to admit the report into evidence in a jury trial requested under section 5350.   A section 5354 conservatorship investigation report's purpose is “to explore all available alternatives to guardianship ․ [and] to provide a service similar to probation department evaluations in the criminal courts” (Report of the Assembly Interim Committee on Ways and Means, Subcommittee on Mental Health Services, “The Dilemma of Mental Commitments in California:  A Background Document” (1967) pp. 133–134 (1978 reprint).)   Notwithstanding this purpose, as originally enacted, section 5354 did not say when the report should be filed with the court or how the court could use it (Stats. (1967) § 36, ch. 1667, p. 4095).   In 1974, the Legislature amended section 5354 (Stats. (1974) § 1, ch. 833, pp. 1795–1796), requiring the investigator to file a copy of the report with the court before the hearing and giving the court authority to “receive such report in evidence ․ and read and consider the contents thereof in rendering its judgment.”   It also provided “in contested cases, if the proposed conservatee or his counsel objects to the receipt of the report in evidence, such report shall not be read or considered by the court until the issue of grave disability had been adjudicated.”

The 1974 amendment, however, created a practical inconsistency.   While section 5352.1 said the court could impose a temporary conservatorship based on the report before the hearing to appoint a conservator occurred, the amendment to 5354 said the proposed conservatee could object to this action by the court at the later hearing.  (See CEB, California Conservatorships, § 8.19, p. 97 (1976 Supp.).)   The Legislature again amended section 5354 in 1978 (Stats. (1978) § 7, ch. 1294, pp. 4245–4246) deleting the provision for objecting to the court's reading the report before adjudicating grave disability at the hearing.   Nothing indicates the Legislature intended to remedy anything other than this practical inconsistency and the Legislature's deletion of the objection provision does not show one way or the other its intent regarding the report's admissibility in a jury trial held solely to determine grave disability ² .

 However, the plain language of section 5354 does provide a basis for holding the investigation report and testimony based on it are subject to evidence rules in a jury trial.   Section 5354 requires the report be filed with the court before the hearing to appoint a conservator;  the statute is silent on the report's admissibility when respondent requests a jury trial on the issue of his grave disability.   Requiring the report to be filed before the hearing and allowing its admission in evidence at such hearing is reasonable for two reasons.   In a hearing before the court even adjudicates grave disability, it must review the report to see whether conservatorship or some other alternative is recommended.   If conservatorship is not recommended, the court need not inquire any further as to the respondent's grave disability.   On the other hand, if the report recommends conservatorship, the court must determine whether the respondent is gravely disabled, and, if so, it can use the report to help determine which placements the conservator can impose on the conservatee.   Thus, it is reasonable for the court to consider the report at the hearing because a key issue at the hearing is proper placement.   By contrast, placement is not at issue in a jury trial, because the issue presented to the jury is whether the respondent is gravely disabled, not where he should be placed if he is.   Because the report contains conclusions about the respondent's grave disability, its use by the jury would be highly prejudicial.   Just as probation reports (to which investigation reports are likened (see Report of the Assembly Interim Committee on Ways & Means, supra, pp. 133–134)), are properly considered by a sentencing court but are not necessarily admissible until after adjudication on the merits (People v. Peterson, 9 Cal.3d 717, 725–726, 108 Cal.Rptr. 835, 511 P.2d 1187), conservatorship investigation reports may be considered by a court at a hearing to appoint a conservator where placement is determined, yet be excluded in whole or in part from a jury trial adjudicating only grave disability.

To interpret section 5354 otherwise would render the trial fundamentally unfair and deprive respondent of due process of law.  (Cf. In re Gladys R., 1 Cal.3d 855, 859–861, 83 Cal.Rptr. 671, 464 P.2d 127;  In re Corey, 266 Cal.App.2d 295, 299, 72 Cal.Rptr. 115, holding in juvenile matters the court may not consider the probation officer's social study in the jurisdictional phase where the merits are considered, but can only consider it in the dispositional phase where placement is determined;  In re Gault (1967) 387 U.S. 1, 12–31, 87 S.Ct. 1428, 1435–1445, 18 L.Ed. 2527), holding due process protections attach to adjudication phase of a juvenile proceeding and intimating hearsay rules also apply (387 U.S. 1, 57, fn. 98);  Lessard v. Schmidt (E.D.Wis.1972) 349 F.Supp., 1078, 1102–1103, judgment vacated and cause remanded on other grounds (1973) 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661, opn. mod. (E.D.Wis.1974) 379 F.Supp. 1376, relying on Gault, holding hearsay rules apply to civil commitment proceedings).   In discussing the procedural requirements of LPS conservatorship proceedings, the Supreme Court in Conservatorship of Roulet, 23 Cal.3d 219, 152 Cal.Rptr. 425, 590 P.2d 1, held civil commitment, despite its civil label, “threatens a person's liberty and dignity on as massive a scale as that traditionally associated with criminal prosecutions” (p. 223, 152 Cal.Rptr. 425, 590 P.2d 1).   Noting “the difficulty of defining mental illness, the factfinder's deference to psychiatric testimony, and the paternalistic attitude of some appointed counsel” (fn. omitted p. 235, 152 Cal.Rptr. 425, 590 P.2d 1), Roulet held finding a person gravely disabled for the purpose of imposing a conservatorship required proof beyond a reasonable doubt and a unanimous jury verdict (p. 235, 152 Cal.Rptr. 425, 590 P.2d 1).   The Supreme Court observed “[h]istory is haunted by the accusing cries of those locked away ‘for their own good.’   It would be small solace to a person wrongly judged mentally incompetent that his road to commitment was paved with good intentions.”  (P. 232, 152 Cal.Rptr. 425, 590 P.2d 1.)

 Given the lack of legislative intent to the contrary, and the importance of procedurally protecting persons facing LPS conservatorship proceedings, we hold the court erred in admitting into evidence the investigation report without striking out inadmissible matter, and in allowing Deney to give hearsay testimony.

III

Judgment reversed.

FOOTNOTES

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.   In Conservatorship of Davis, 124 Cal.App.3d 313, 323, 177 Cal.Rptr. 369, the court said the Legislature had not expressed any purpose or intent in the act that the report should be excluded from a jury trial.   However, the issue was not before the court and in any event nothing in Davis or the act implies the report should not be excluded if such exclusion results from applying the usual evidence rules.   Further, in Davis the court extended protection to the respondent by expanding the scope of the evidence the respondent could present to show he was not gravely disabled and it would be incongruous to use language in Davis to deprive Manton of important procedural protection.

GERALD BROWN, Presiding Justice.

WORK and BUTLER, JJ., concur.