IN RE: the Conservatorship of the Person and ESTATE of Frederick Bradshaw TURNER (1977)

Frederick Bradshaw Turner, III, appeals from a judgment declaring him to be gravely disabled within the meaning of section 5350 of the Welfare and Institutions Code and appointing the Public Guardian of San Mateo County to act as the conservator of his person and estate.

At the hearing on the petition to establish a conservatorship, the court refused appellant's request that the jury be instructed that a unanimous verdict was required and that respondent was required to prove ‘beyond a reasonable doubt’ that appellant was gravely disabled. Instead, the court instructed that only nine jurors need agree upon the verdict and that respondent was only required to establish by ‘a preponderance of the evidence’ that appellant was gravely disabled.

A verdict finding appellant to be gravely disabled was returned by 11 of the 12 jurors, and judgment was rendered establishing the conservatorship as prayed for in the petition. Pursuant to said judgment, the conservator was granted the power to place appellant in a psychiatric institution. The judgment also specified that appellant was not to be allowed to possess a driver's license nor to have the right to enter into contracts. Thereafter, the conservator placed appellant in Napa State Hospital, where he remained for approximately one year.

Under the provisions of section 5361 of the Welfare and Institutions Code, a conservatorship automatically terminates at the end of one year following its creation unless the conservator petitions for a one-year extension and the court grants same. In the present case, no such petition was filed, so the conservatorship expired on March 26, 1976.

Technically, then, this appeal is moot since appellant's conservatorship has expired and he has been released from confinement in the state hospital. However, the appeal presents recurrent questiond of broad public interest, and both parties seek to have those questions resolved by this court. Respondent points out that the frequency and extent of these proceedings, within California, is great and that they affect large numbers of people in virtually every county in the state. Since each conservatorship is limited to a duration of one year, the issues raised in such proceedings cannot, as a practical matter, be appealed within the prescibed duration, hence any such appeal is necessarily moot before it is heard.

In its discretion, this court is empowered to resolve recurrent issues of broad public interest although the case in which the issues were raised has become moot. (In re William M. (1970) 3 Cal.3d 16, 23, 89 Cal.Rptr. 33, 473 P.2d 737.) The present case would appear to be a proper one for the exercise of such discretion in order to resolve the issues raised by appellant.

Appellant first contends that the trial court erred in refusing to give his proposed instructions to the jury. He contends that the requirements of a preponderance-of-the-evidence standard and a nonunanimous verdict violate his rights of due process and equal protection of the laws. Appellant premises the need for a unanimous jury verdict based upon a reasonable doubt standard on the fact that potential conservatees may be subject to involuntary confinement in a mental institution for an extended period.¹

This matter was put to rest in the recent case of Conservatorship of Roulet (1976) 64 Cal.App.3d 719, 134 Cal.Rptr. 722. In its sound and well-reasoned opinion, the court pointed out that the characterization of the Lanterman-Petris-Short Act conservatorship proceeding (hereinafter referred to as LPS)² as a civil action is inaccurate since a jury verdict in such proceeding can subject an individual to a substantial deprivation of his or her liberty by confinement in a medical treatment facility and to the social consequences which often flow from such a commitment. The court then concluded that the reasoning of the California Supreme Court in People v. Burnick (1975) 14 Cal.3d 306, 121 Cal.Rptr. 488, 535 P.2d 352, must be applied to LPS proceedings.

In Burnick, supra, the court was confronted with a problem similar to that in the present case. There, the statutes which established procedures for the confinement of mentally disordered sex offenders were silent as to the standards of proof required in such proceedings. Although mentally disordered sex offender (MDSO)³ proceedings were purportedly civil in nature, a person adjudged to be a MDSO was subject to confinement of indeterminate duration in a mental hospital, or, if he was not amenable to treatment, prison. The indeterminate duration of the confinement and the resultant stigma inhering to MDSO's prompted the court to require criminal standards of proof, namely, a unanimous verdict, based upon proof beyond a reasonable doubt, in MDSO proceedings.

While the circumstances under which MDSO proceedings are initiated differ substantially from those which are here involved, yet they share those common areas of concern hereinbefore described. Thus, we view it as unrealistic to hold that lesser standards of proof are required in LPS proceedings because of such difference.

Since it was not in issue, the court in Conservatorship of Roulet, supra, did not resolve the question of a unanimous verdict requirement. On this point we can find no reasonable basis for deviating from the rule set forth in People v. Burnick, supra. Accordingly, we hold that in conservatorship proceedings initiated under LPS, a verdict of the jury on the issue of whether or not the subject of such proceedings is ‘gravely disabled’ within the meaning of the law must be unanimous, based upon a reasonable doubt standard. If the trial judge had had the benefit of Burnick, supra, and other cases which have come down since the time of trial in this matter, we are confident that the jury would have been so instructed.

Appellant also contends that the term ‘gravely disabled’ is unconstitutionally vague and overbroad. That contention is without merit. The definition of the term is narrowly enough drawn in section 5008, subdivision (h)(1), of the Welfare and Institutions Code as ‘A condition in which a person, as a result of a mental disorder, is unable to provide for his basic personal needs for food, clothing, or shelter. . . .’

The term ‘mental disorder’ is limited to those disorders listed by the American Psychiatric Association in its ‘Diagnostic and Statistical Manual of Mental Disorders.’ (Cal.Admin.Code, tit. 9, § 813.) The term thus meets the requirement of People v. Barksdale (1972) 8 Cal.3d 320, 105 Cal.Rptr. 1, 503 P.2d 257, that a term whose meaning was not apparent from the face of the statute still had the requisite certainty if it possessed an established technical meaning.

The term ‘gravely disabled’ is sufficiently precise to exclude lifestyles which are merely unusual or nonconformist. It connotes an inability on the part of the proposed conservatee to care for his own basic personal needs. A jury can make a determination, based on common experience, that a proposed conservatee is malnourised, inadequately clothed, or suffering from exposure.

In order for the jury to conclude that the proposed conservatee is gravely disabled, it must make findings as to three facts, namely, that the proposed conservatee suffers from a mental disorder, that he is unable to look after his own personal needs, and that there is a causal link between the mental disorder and the disability. (Welf. & Inst.Code, § 5008, subd. (h).) Thus, the term is neither vague nor overbroad.

Appellant's final contention, that the experts who testified on behalf of respondent had no concrete or direct knowledge of appellant's inability to feed, clothe, or shelter himself, is likewise without merit. Section 801, subdivision (b), of the Evidence Code provides that an expert may base his testimony upon any matter which is a type upon which the expert may reasonably rely in forming an opinion. There is no requirement of direct or ‘concrete’ knowledge of given facts by the expert. (Rosenberg v. Goldstein (1966) 247 Cal.App.2d 25, 55 Cal.Rptr. 306.)

Moreover, appellant has questioned the testimony of only two medical experts. Other evidence to the effect that appellant was gravely disabled was given by three other witnesses.⁴ There was, therefore, sufficient evidence upon which a jury could reasonably conclude that appellant was gravely disabled—unable to provide for his basic needs of food, clothing, or shelter.

The judgment is reversed.

FOOTNOTES

1.  Appellant has also raised the issues of his deprivation of the driving privilege and loss of the right to enter into contracts. Those disabilities are essentially civil in nature and, as such, should require only civil standards of proof. The former is for the protection of the driving public and the latter is a disability similar to those listed in section 1853 of the Probate Code. There appears to be no compelling reason to withhold the power to impose those disabilities from the sound discretion of the trial court in light of the conservatorship investigation report and the evidence adduced at trial. If criminal standards of proof are to be required at all, they will be required on the basis of confinement and not on the basis of civil disabilities.

2.  Welfare and Institutions Code, § 5000, et seq.

3.  MDSO's are persons who have been convicted of a crime and who are predisposed to the commission of sexual offenses. (Welf. & Inst.Code, §§ 6300, 6302.)

4.  Those witnesses were two psychiatrists and appellant's mother.

ROUSE, Associate Justice.

TAYLOR, P. J., and KANE, J., concur.