IN RE: Conservatorship of Lawrence Edward JOHNSON. (1977)

Jessie M. Burrows, conservator of the person of Lawrence Edward Johnson, 26, petitioned the court to reestablish the conservatorship pursuant to Welfare and Institutions Code section 5361 et seq.¹ Johnson had earlier been found to be gravely disabled as defined in the Lanterman-Petris-Short Act (L.P.S. Act) (§ 5000 et seq.) and Burrows was appointed conservator with authority to place Johnson in a medical facility for care and treatment pursuant to section 5358. At the present time Johnson is confined to Atascadero State Hospital. After examination by two experienced psychiatrists a hearing was set for a judicial determination of the need for reestablishment of the conservatorship. A jury trial was requested pursuant to section 5350(d) and on March 16, 1976, the jury again found Johnson to be gravely disabled and a judgment was entered accordingly. The court then appointed H. N. Welborn, a counselor in Mental Health for San Diego County, as a conservator for Johnson and the order gave the conservator the power to place Johnson in a mental health facility. Johnson appeals from the judgment and order.

At the trial William J. Vargas, M.D., a forensic psychiatrist for the County Mental Health Hospital, testified he examined Johnson and in his opinion Johnson suffered from schizophrenia, paranoid type, and was gravely disabled. This was based on Johnson's long history of mental problems which dated back to 1970. Johnson had an inability to associate with other people, was angry and threatening and on several occasions reportedly hit other people. He suffered hallucinations, visions and delusional ideas. Johnson thought he was three different persons, President Washington, President Johnson and Jesus Christ. At one time while in court Johnson tried to set his clothes on fire. He had a propensity to fight. Vargas related how Johnson told of hearing birds talk to him. According to Vargas, if Johnson was left to his own devices, he would not be capable of taking care of his own needs for food, shelter and clothing.

Johnson's mother testified she would take care of him but admitted he wanted to live alone and she had little control over him.

Johnson testified on his own behalf and stated he no longer had mental problems but did hear voices and would do whatever the voices told him if the voices were positive. He said he did not need medication.

The verdict of the jury was that Johnson was gravely disabled. The judge signed the judgment and then made an order appointing a conservator of the person and giving the conservator the power to place the conservatee in a medical facility as provided in section 5358.

All proceedings in this case were had pursuant to the L.P.S. Act (§ 5000 et seq.) which was designed to provide prompt evaluation, individualized treatment and placement services for gravely disabled persons.² The Act is not intended to repeal or modify the laws relating to commitment of mentally disordered sex offenders, mentally retarded and mentally disordered criminal offenders except as specifically indicated (§ 5002) and generally leaves intact those bodies of law.

The Act provides a means of securing intensive treatment in a medical facility for those who are gravely disabled, namely, those who are unable to provide for the basic needs for food, clothing, shelter (§ 5003). On a showing of reasonable cause such a person may be taken into custody and placed in an approved medical facility (§ 5150). An evaluation must be made within 72 hours and then the individuals released, referred for further treatment on a voluntary basis, certified for intensive treatment or a conservator appointed (§ 5152). If the individual is not released or voluntarily submits to further treatment, an evaluation of his condition may be authorized by the superior court (§ 5200). He may be certified for 14 days of intensive treatment (§ 5350) and under certain circumstances certified for an additional period of 14 days intensive treatment (§ 5260). Each person held under this Act has the right to a hearing by writ of habeas corpus (§ 5275). The Act sets up a procedure for the appointment of a conservator (§ 5350 et seq.) which generally follows the procedures prescribed in the Probate Code. The conservatorship created under this Act differs from that found in the Probate Code, however, in that it continues only for one year and then will automatically terminate unless it is reestablished (§ 5361).

The powers of the conservator generally conform to those found in Probate Code section 1852, and may also include the powers specified in Probate Code section 1853 if designated by the judge. Most significant, however, is the additional power which the L.P.S. Act conservator may be given, namely, to place the conservatee in a medical, psychiatric or nursing facility (§ 5358), a power not authorized under a Probate Code conservatorship. That authority must be specifically provided in the order (§ 5358).

Although the Legislature has designated the L.P.S. Act proceeding ‘civil,’ the courts have found other similar civil commitment procedures to be essentially criminal in nature (see People v. Burnick, 14 Cal.3d 306, 121 Cal.Rptr. 488, 535 P.2d 352). Unlike the proceedings for conservatorship provided in the Probate Code, the L.P.S. Act provides a means of obtaining authority to impose involuntary confinement.

Relying on In re Winship, 397 U.S. 358 [90 S.Ct. 1068], 25 L.Ed.2d 368, the California court in People v. Burnick, supra, 14 Cal.3d 306, at page 318, 121 Cal.Rptr. 488, 535 P.2d 352, dealing with a mentally disordered sex offender commitment (§ 6300 et seq.), held (1) the possibility of loss of liberty and (2) the stigma which attaches to the jury's finding demand the imposition of the safeguard of proof required in criminal cases, i. e., beyond a reasonable doubt. In People v. Burnick, supra, 14 Cal.3d 306, at pages 319–320, 121 Cal.Rptr. 488, at page 496, 535 P.2d 352, at page 360, the court said:

‘Nor is there any doubt that such commitment to a ‘state hospital’ results in a real deprivation of liberty. Like all persons found to be treatable mentally disordered sex offenders in California, Burnick was committed by the court to Atascadero State Hospital. Let us not deceive ourselves as to the nature of that institution. [Citation.] It was frankly described as follows by a distinguished body of the medical profession. ‘In its physical appearance, this is much more like a prison than a hospital. In its architectural planning, it disregards the modern psychiatric concept of the therapeutic community. There are bare corridors, bars, iron gates, rows of cells—all the stigmata of punishment rather than treatment. Patients who occupy individual rooms are locked out of them during the day and have no opportunity to withdraw for privacy. Patients in wards have a reasonable amount of mobility from one area of the hospital to another, although security precautions are in evidence everywhere. . . . [¶] Externally, the plant has a misleadingly attractive appearance. Internally, despite its dehumanizing attributes, it is well-maintained and well-equipped and might be characterized as a sanitary dungeon.’ Other observers have confirmed this description. And lest it be thought that only outsiders characterize this institution as essentially indistinguishable from a prison, consider the testimony of Dr. Harold M. Rogallo, senior psychiatrist on the Atascadero staff: Dr. Rogallo identified Atascadero as the only ‘maximum security’ hospital in the Department of Mental Hygiene; noting the fact that ‘it is all locked and it is under strict supervision, and we have approximately fifty security officers for a population of about thirteen hundred and fifty patients,’ Dr. Rogallo concluded unequivocally,, ‘Our hospital is pretty much bordering, you might say, [on] a correction facility. . . .’ . . .'

The second justification is the ‘stigma’ and ‘loss of good’ name. The ideological concept of treatment for an illness has not yet been achieved. People suffering from mental illness are confined and treated at facilities such as Atascadero and Patton State Hospital where criminals are also placed. The state has not made a visible distinction in the place of confinement of such persons. Thus the average citizen has justification for cringing at the thought of social contact with a ‘former inmate’ of one of these institutions. To many the name of these institutions alone suggests much more serious behavior than the particular disability of the individual indicates. The stigma borne by the mentally ill has been identified. 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 Developments in the Law—Civil Commitment of the Mentally Ill, 87 Harvard Law Rev., 1190, 1200–1201).

Under section 5350(d) the person for whom the conservatorship is sought has the right to demand a jury trial. Johnson made such a request. No standard for burden of proof is specified in the Act and the jury here was instructed the petitioner has the burden of establishing by the ‘preponderance of the evidence’ all the facts necessary to prove Johnson is gravely disabled. This was error. The standard should be as provided in mentally disordered sex offender commitments, juvenile delinquency findings and criminal convictions. The jury should be instructed to find the individual gravely disabled beyond a reasonable doubt.³

Johnson contends the jury should be specifically asked to return a verdict whether the conservator should have the power to place the conservatee in a medical facility.

Section 5358 reads as follows:

‘A conservator appointed pursuant to this chapter shall have the right, if specified in the court order, to place his conservatee in a medical, psychiatric, nursing, or other state-licensed facility, or a state hospital, county hospital, hospital operated by the Regents of the University of California, a United States government hospital, or other nonmedical facility approved by the State Department of Health or an agency accredited by the State Department of Health; or in addition to any of the foregoing, in cases of chronic alcoholism, to a county alcoholic treatment center. If the conservatee is not to be placed in his own home or the home of a relative, first priority shall be to placement in a suitable facility as close as possible to his home or the home of a relative.

‘If requested, the local mental health director shall assist the conservator in selecting a placement facility for the conservatee. When a conservatee who is receiving services from the local mental health program is placed, the conservator shall inform the local mental health director of the facility's location and any movement of the conservatee to another facility.’

Johnson contends this section fails to provide the conservatee the opportunity to appear and contest the decision to order institutional placement. Due process requires notice and an opportunity to be heard before an individual may be deprived of his liberty.

The issue was not raised below and we are not under an obligation to consider it on review (Jenner v. City Council, 164 Cal.App.2d 490, 498, 331 P.2d 176), but we feel compelled to comment briefly on the subject. The constitutionality of the L.P.S. Act has been appropriately treated in Thorn v. Superior Court, 1 Cal.3d 666, 83 Cal.Rptr. 600, 464 P.2d 56 and found to provide full protection to the patient at all times (Thorn, supra at p. 674, 83 Cal.Rptr. 600, 464 P.2d 56), especially when tested for constitutional due process. The entire procedure is designed to effect confinement when appropriate; a jury's finding a person is unable to provide his basic needs for food, clothing or shelter in itself justifies placement in a medical facility because such a condition threatens injury to the patient himself. As an additional safeguard against early placement, however, the Act gives the court the authority to delay actual placement in favor of alternative treatment available to the conservator. This corresponds to the procedure in the usual criminal case where the jury determines guilt which justifies incarceration but it remains discretionary with the judge to commit the person, grant probation or impose another penalty. The conservator's decision to place in a particular medical facility compares to the Adult Authority's decision to confine a person committed to it in a particular custodial facility or on parole, or to the decision of the probation officer entitled to a minor's custody to place a minor in a facility. We find nothing in this concept violates constitutional due process (see In re Michael E., 15 Cal.3d 183, 191, and fns. 11 and 12 at pp. 191–192, 123 Cal.Rptr. 103, 538 P.2d 231).

Judgment finding Johnson was gravely disabled is reversed.

FOOTNOTES

1.  All references will be to Welfare and Institutions Code unless otherwise designated.

2.  Section 5001 provides a statement of legislative intent and reads as follows:‘The provisions of this part shall be construed to promote the legislative intent as follows:‘(a) To end the inappropriate, indefinite, and involuntary commitment of mentally disordered persons and persons impaired by chronic alcoholism, and to eliminate legal disabilities;‘(b) To provide prompt evaluation and treatment of persons with serious mental disorders or impaired by chronic alcoholism;‘(c) To guarantee and protect public safety;‘(d) To safeguard individual rights through judicial review;‘(e) To provide individualized treatment, supervision, and placement services by a conservatorship program for gravely disabled persons;‘(f) To encourage the full use of all existing agencies, professional personnel and public funds to accomplish these objectives and to prevent duplication of services and unnecessary expenditures.’

3.  The jury was told in such a ‘civil action’ nine jurors must agree before a verdict can be reached but the jurors were not polled. We are unable to tell whether a unanimous verdict was reached. Under these circumstances the requirement that all the jurors must agree is not an issue presented by the facts but the appropriate instruction must nevertheless be apparent. The verdict must be unanimous. (See discussion in People v. Feagley, 14 Cal.3d 338, 350–358, 121 Cal.Rptr. 509, 535 P.2d 373; cf. In re Shackleford, 188 Cal. 279, 280, 204 P. 822.)

COLOGNE, Associate Justice.

GERALD BROWN, P. J. and WHELAN,* J., concur.