GILBUENA v. MOORE (1985)

OPINION

Charles Gilbuena appeals the order granting Kings County Public Guardian letters of conservatorship of appellant's person and estate after a jury's verdict finding him gravely disabled ¹ as defined in the Lanterman-Petris-Short Act (Act or LPS Act).  (Welf. & Inst.Code, § 5008, subd. (h)(1).) ²  Appellant makes the following contentions:  (1) appeal is the appropriate vehicle for review of an order establishing conservatorship under the Act;  (2) the reviewing court is empowered to appoint counsel to represent him on appeal, but the reviewing court may not order reimbursement of costs of appointed appellate counsel;  (3) the evidence was insufficient to support the jury verdict finding appellant gravely disabled;  (4) improper jury instructions shifted the burden of proof from respondent to appellant;  (5) the trial court failed to make a finding of the least restrictive alternative placement for appellant;  and (6) no individualized treatment plan was filed.

FACTS

At trial, Trini Gilbuena, appellant's sister, testified their family in 1976, including appellant, had gathered at a campsite for a family reunion.   Appellant left the gathering early.   Later that evening after returning to her home, Trini telephoned her father's residence and spoke with appellant, at which time he told her “the devil was going to die at midnight.”   Shortly after midnight the same evening, Trini called her father's home and spoke to appellant who then exclaimed, “ ‘Well, I killed the devil.’ ”   Members of appellant's family then went to the father's house and found the father's puppy had been burned in the fireplace.   Appellant, who was nowhere to be found, had taken his father's truck and driven it into a tree because “he saw the devil and ․ was going to run the devil over.”

Dr. Charles Davis, director of the Kings County Mental Health Services, testified his first contact with appellant was at a local mental health services in June 1977.   Appellant thought he “was becoming Jesus Christ.”   Diagnosed as a paranoid schizophrenic, appellant began a schedule of anti-psychotic medication, progressed through a day treatment program and was eventually discharged.

In August 1977, appellant enrolled at College of the Sequoias but within a month had dropped out of school and was again hospitalized at a psychiatric facility.   By this time appellant felt if he sacrificed himself, “mankind would be perfect.   And he could kill himself and then be resurrected.”   In November 1977, appellant attempted suicide on three occasions.   In October 1980 due to mental illness, appellant was placed on social security disability with his father as the designated payee of his benefits.   Hearing voices of spirits, and because of his belief a probe had been placed in his brain, appellant again was hospitalized in January 1982.

Appellant testified at length about the probe in his brain and its effect upon him.   He explained the probe had been implanted by an oral surgeon.   This was true because “that's what God told me.   And God don't lie.”   Appellant believed the probe was a “wicked device that is very Satanic and is very evil, ․”  Also former President Carter had something to do with having the probe placed in his brain.   However, the probe was gone now because “God took it out for me, he took it out of me.”

In August 1983, appellant lived with his father in Hanford but was forced to leave later in the month.   Within a week the $385 of social security funds given appellant by his father had been spent.   Similarly, an additional $50 was spent within 24 to 48 hours, after which appellant reportedly lived in his car and begged for food.

Vicky Rowsen testified appellant's family in early September 1983 placed appellant in her board-and-care facility located in Tulare.   While there, appellant refused to take his prescribed medication but was neat and cooperative.   Appellant was not employed when he lived there, nor did he handle his own finances.   Rowsen bought all his personal items for him, provided the food and did the cooking.   Rowsen's stated belief was appellant could not provide food, clothing or shelter for himself without being in a structured setting.   At times when appellant would go out on his own, “he would go hungry for days, and he slept in cars, ․”

During appellant's stay at Rowsen's facility, several incidents occurred that were a concern to her.   Appellant would sleep in the nude with his door open despite repeated requests not to;  he would “sit for hours with a little plastic glass and just stir something around.”   When asked what he was doing, appellant would reply “he was cleaning up the world for God.”

Appellant eventually had to leave the facility because his behavior became more bizarre.   Rowsen further testified “the day before he left, [appellant] started imitating Satan, and he was talking in a real strange voice and saying ‘I'm going to kill you.’ ”   Rowsen believed these comments were not directed to anyone in particular, nor did she feel threatened by them.   Appellant was removed from the facility and on September 26, 1983, rehospitalized.

Dr. Davis further testified appellant told him he “will have to punish the woman Vicky, the board-and-care operator,” for forcing him to leave her board-and-care home and causing him to be placed in a locked facility, but “he will be fair in his punishment.”   Appellant believed he was “Charlie Christ.”   Appellant refused his medication as he did not believe he was mentally ill, and on October 18, 1983, he was transferred to Fresno Care and Guidance, a locked facility.

Approximately two weeks before trial, appellant was examined by Dr. Davis.   The examination revealed appellant still suffered from grandiose religious delusions.   During the course of the interview, appellant continued to profess his belief he was the “bride of Christ.”   Dr. Davis found appellant to be extremely psychotic and diagnosed appellant's condition once again as paranoid schizophrenia.   In the doctor's opinion, appellant, at the time of trial, was gravely disabled and could not provide for his food, clothing or shelter.   He felt appellant did not recognize his need of medication or treatment and if he continued to refuse medication he would remain in his current state.   According to Dr. Davis, and contrary to appellant's belief, appellant did function well while on his antipsychotic medication.

DISCUSSION

I

 Appeal is the appropriate vehicle to review trial court orders establishing conservatorship under the LPS Act.   Conservatorships for gravely disabled persons are governed not only by the provisions of division 5, part 1, chapter 3 (commencing with § 5350) of the Welfare and Institutions Code, but also by the procedural provisions adopted by reference into the LPS Act for establishing, administering, and terminating conservatorships the same as provided in division 4 (commencing with § 1400) of the Probate Code.   Excepted from these procedures adopted by reference, however, are those express provisions of chapter 3 contrary to the Probate Code procedures (§ 5350).   Although the LPS Act contains no specific statutory references to the right or rules of appeal, the Probate Code procedure adopted by reference expressly delineates those orders on which appeals may be taken in conservatorship proceedings (Prob.Code, § 2750).   Heading the list of appealable orders is appellant's challenge before this court, namely, “an order granting letters of conservatorship.”  (Prob.Code, § 2750, subd. (a).)

Specific provisions of the LPS Act itself, as well as other statutes, indicate the legislative intent is that conservatees be able to appeal orders establishing conservatorship.   Section 5352.4 states, contrary to comparable provisions governing probate guardianships, “[i]f a conservatee appeals the court's decision to establish conservatorship, the conservatorship shall continue unless execution of judgment is stayed by the appellate court.”   (Compare Prob.Code, § 2751.)   In addition, section 5110 indicates the costs of an appeal from a superior court proceeding to establish an LPS Act conservatorship are to be borne by the county of residence of the proposed conservatee.  Penal Code section 1240.1, subdivision (a)(2), provides that trial counsel has the obligation to file a timely notice of appeal on behalf of every indigent conservatee when meritorious grounds for reversal of the civil commitment exist as well as assist the indigent in preparing a motion and supporting declarations for the appointment of appellate counsel.

The Legislature has indicated clearly that the appropriate method of judicial review of a proceeding to establish an LPS conservatorship is by appeal.

II

Appellant contends the reviewing court is empowered to appoint counsel to represent him on appeal, but the reviewing court may not order reimbursement of costs of appointed appellate counsel.

 A. Due process requires the appointment of appellate counsel for an indigent conservatee challenging the order establishing his or her LPS Act conservatorship.

It is clear both the California courts and Legislature recognize “․ ‘the interests involved in civil commitment proceedings are no less fundamental than those in criminal proceedings ․’ ”  (Conservatorship of Roulet (1979) 23 Cal.3d 219, 225, 152 Cal.Rptr. 425, 590 P.2d 1;  In re Gary W. (1971) 5 Cal.3d 296, 307, 96 Cal.Rptr. 1, 486 P.2d 1201.)   Procedural safeguards adopted by the Legislature to protect the interests of the individual who is facing extended involuntary civil commitment, whether it be for 14 days, 180 days, or up to a year if a conservator is appointed, include the right to assistance of counsel and the right to appointed counsel if the individual proposed conservatee is financially unable to provide his or her own counsel (§§ 5252.1, 5302, 5350;  Prob.Code, §§ 1470, 1471) and the right to a jury trial for a 180-day commitment or in a proceeding to establish conservatorship.  (§§ 5302, 5350, subd. (d).)  Judicial review by habeas corpus petition to the superior court is available to the individual involuntarily committed for treatment for a 14-day period.  (§ 5275.)

Recognizably, the need for the maximum procedural safeguards against the possibility of the unjustified appointment of a conservator with the power to subject a conservatee to involuntary commitment is great.   Indeed, a stated purpose of the LPS Act is “[t]o end the inappropriate, indefinite, and involuntary commitment of mentally disordered persons, ․”  (§ 5001, subd. (a).)  The possibility of an incorrect decision in the above regard prompted the California Supreme Court in Conservatorship of Roulet, supra, 23 Cal.3d 219, 152 Cal.Rptr. 425, 590 P.2d 1 to require proof beyond a reasonable doubt and juror unanimity in proceedings to establish an LPS Act conservatorship.   The Supreme Court could not find a compelling state interest, let alone a rational basis, for providing less procedural safeguards to a proposed conservatee than were provided by law to individuals committed as mentally disordered sex offenders.   The Roulet court reasoned it would be nonsensical to provide fewer procedural safeguards in civil commitment proceedings than in criminal proceedings when it is easier to commit an individual with a mental disorder than it is to convict a criminal of a crime.   The court stated:

“ ‘This is common sense turned upside down, a discrimination without semblance of rational basis—let alone a compelling state interest, and a wholesale denial of equal protection of the laws under both the California and federal Constitutions.’ ”  (Id., at p. 233, 152 Cal.Rptr. 425, 590 P.2d 1;  People v. Feagley (1975) 14 Cal.3d 338, 358, 121 Cal.Rptr. 509, 535 P.2d 373.)

Similarly, denying an indigent individual faced with the prospect of year-long confinement in a mental institution as an LPS Act conservatee the right to the assistance of counsel to oppose such judicial determination would be a wholesale denial of due process and equal protection of the laws.   Our Supreme Court recognized due process necessitates appointment of counsel to represent the indigent in an appeal from a misdemeanor conviction (In re Henderson (1964) 61 Cal.2d 541, 543, 39 Cal.Rptr. 373, 393 P.2d 685) and in proceedings to terminate parental custody and control of a child under Civil Code section 232 (In re Jacqueline H. (1978) 21 Cal.3d 170, 177, 145 Cal.Rptr. 548, 577 P.2d 683).  (See also In re Jay R. (1983) 150 Cal.App.3d 251, 260, 197 Cal.Rptr. 672  [“[D]ue process requires appointment of counsel for indigent noncustodial parents accused of neglect in stepparent adoption proceedings, if indigency is demonstrated and appointment of counsel is requested.”].)  The deprivation of liberty and concomitant stigma experienced by a conservatee often include one or more of the foregoing deprivations for which the right to counsel has been recognized in addition to the deprivation of other fundamental interests.   We are led to the necessary conclusion due process and equal protection of the law require the appointment of appellate counsel for the indigent conservatee appealing a court order establishing an LPS Act conservatorship, if indigency is adequately demonstrated and appointment of appellate counsel is requested.

 B. Statutory authority does permit the appointment of either private counsel or the public defender, for an indigent conservatee appealing the order establishing an LPS Act conservatorship.

The LPS Act and the procedures adopted by reference from the Probate Code encompass not only the procedures in the Probate Code for initiating conservatorship, but also any procedural step taken prior to the finality of the order establishing conservatorship, including the right to test by appeal the validity of the order granting letters of conservatorship.   A liberal construction and correlation of section 5350 et seq., the specific statutes relating to appeal (Prob.Code, § 2570 et seq.) and the specific statutes relating to appointment of counsel (Prob.Code, §§ 1471–1472) produce the required statutory authority which is consistent with a stated purpose of the LPS Act, “[t]o safeguard individual rights through judicial review.”  (§ 5001, subd. (d).)  The appointment of appellate counsel, be it private or a public defender, to represent an indigent conservatee in an appeal from an order establishing an LPS conservatorship is clearly authorized by statute.

This court asked the parties to brief the issues of whether it could authorize the State Public Defender to represent appellant at public expense, and whether, subsequent to appointment of counsel, a hearing could be held to determine appellant's ability to pay all or part of the costs of representation with subsequent reimbursement to the state.   These issues appear to be moot in this case.   Our appointment of the State Public Defender to represent appellant established an attorney-client relationship which may not be interrupted without substantial justification.   The mistaken judgment of a court as to the indigency status of an individual for whom counsel is appointed is not a sufficient ground to upset the attorney-client relationship once established.   The court's sole remedy is to conduct a hearing into the matter at the conclusion of the proceedings in accordance with Penal Code section 987.8.  (Roswall v. Municipal Court (1979) 89 Cal.App.3d 467, 475, 152 Cal.Rptr. 337.)   Moreover, it is apparent from the record that appellant's monthly income of $383 is well below that level required to establish indigency (see Gov.Code, § 68511.3);  no subsequent hearing would be fruitful.

Although technically moot herein, the issues of whom to appoint to represent an indigent conservatee appealing from an LPS Act order establishing conservatorship and whether recoupment of costs is available from the person or estate of such conservatee are issues of significance which will continue to evade review because the State Public Defender has not opposed its appointment in this matter.   Because the public interest warrants a resolution of these issues, this court should exercise its inherent discretion to attempt their resolution.  (Ballard v. Anderson (1971) 4 Cal.3d 873, 876–877, 95 Cal.Rptr. 1, 484 P.2d 1345.)

It would appear the State Public Defender is the appropriate appointment by the reviewing court to represent an indigent LPS conservatee on appellate review of a trial court's order granting letters of conservatorship.   We arrive at this conclusion by consideration of the pertinent statutes within the Government Code relating to the respective duties of the county public defenders and State Public Defender, with the Penal Code provisions governing appointment of counsel on appeal.

Upon initiating proceedings to establish an LPS Act conservatorship, it is the duty of the county public defender, in the absence of a conflict of interest or other disqualification, to represent an indigent proposed conservatee.   (Gov.Code, § 27706, subd. (d).) ³  Once an order granting letters of conservatorship has been entered we must next consider Penal Code section 1240, subdivision (a), which provides in pertinent part:

“When in a proceeding falling within the provisions of Section 15421 of the Government Code [⁴ ] a person is not represented by a public defender acting pursuant to Section 27706 of the Government Code or other counsel and he is unable to afford the services of counsel, the court shall appoint the State Public Defender ․”  (Emphasis added.)

By virtue of the issue involved we, of necessity, must construe the nature of the term “proceeding” used in the foregoing Penal Code section as meaning the litigation stage of appellate review.   Such determination is required in order to ascertain whether the appealing conservatee is or is not represented in this proceeding by a public defender acting pursuant to Government Code section 27706.

Penal Code section 1240 was enacted in 1975 ⁵ at the same time the office of the State Public Defender was created.  (Gov.Code, § 15400 et seq.) ⁶  Already in effect on the operative dates of the foregoing statutes was Government Code section 27706.  Section 27706, subdivision (a), was originally enacted in 1947 (added Stats.1947, ch. 424, § 1, p. 1175).   At the time Penal Code section 1240 and Government Code section 15400 et seq. became effective, Government Code section 27706, subdivision (a), provided as follows:

“The public defender shall perform the following duties:

“(a) Upon request of the defendant or upon order of the court, he shall defend, without expense to the defendant, except as provided by Section 987.8 of the Penal Code, any person who is not financially able to employ counsel and who is charged with the commission of any contempt or offense triable in the superior, municipal or justice courts at all stages of the proceedings, including the preliminary examination.   The public defender shall, upon request, give counsel and advice to such person about any charge against him upon which the public defender is conducting the defense, and shall prosecute all appeals to a higher court or courts of any person who has been convicted, where in his opinion the appeal will or might reasonably be expected to result in the reversal or modification of the judgment of conviction.”   (Emphasis added.)

The mandate in which the county public defender shall prosecute all appeals to higher courts under the stated conditions is significant in the construction of Penal Code section 1240.   At the time Penal Code section 1240 became effective, when the conditions of Government Code section 27706 were met, the county public defender was required to prosecute the appeal of an indigent criminal defendant.   Of necessity, Penal Code section 1240 had to provide for this contingency and did so by its exception of a person who was represented by a public defender acting pursuant to Government Code section 27706.

Notably, no similar or corresponding mandate of appellate representation by the county public defender was adopted or carried into his obliged representation of indigent LPS Act proposed conservatees.  (Gov.Code, § 27706, subd. (d).)

This construction of Penal Code section 1240 also comports with the mandates upon trial counsel under the provisions of Penal Code section 1240.1.⁷  To hold otherwise would lead to conflicts in representation militating against an indigent conservatee's right to effective legal representation on appeal.   The indigent proposed conservatee is entitled to legal representation from inception of the litigation to final remand, but may not be forced to accept nor may he demand the same counsel at all stages of the proceedings.

We find, therefore, unless precluded by conflict of interest or other disqualification, the State Public Defender is the appropriate appointment of appellate counsel for indigent conservatees challenging trial court orders granting letters of conservatorship.

By finding the State Public Defender the appropriate appointee as appellate counsel, the issue of reimbursement of counsel fees by an indigent conservatee is moot until the Legislature addresses and otherwise provides.   No current statutory authority provides for the recoupment of fees for legal services of a State Public Defender.  (See Gov.Code, §§ 15400–15404.)

III

Appellant next contends the evidence is insufficient to support the jury finding he was gravely disabled.

“Gravely disabled” is defined in section 5008, subdivision (h)(1), 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 ‘gravely disabled’ is sufficiently precise to exclude unusual or nonconformist lifestyles.   It connotes an inability or refusal on the part of the proposed conservatee to care for basic personal needs of food, clothing and shelter.”  (Conservatorship of Chambers (1977) 71 Cal.App.3d 277, 284, 139 Cal.Rptr. 357.)

Moreover, the definition is “intended to encompass a consideration of whether the person could provide these basic needs with or without the assistance of willing and responsible family members, friends, or other third parties.”   (Conservatorship of Early (1983) 35 Cal.3d 244, 254, 197 Cal.Rptr. 539, 673 P.2d 209.)

 In LPS conservatorship proceedings, the standard to be applied is proof beyond a reasonable doubt.  (Conservatorship of Roulet, supra, 23 Cal.3d 219, 235, 152 Cal.Rptr. 425, 590 P.2d 1.)   The standard to be applied for appellate review of LPS conservatorship proceedings is the substantial evidence rule.  (Conservatorship of Murphy (1982) 134 Cal.App.3d 15, 18, 184 Cal.Rptr. 363.)   The relevant question in determining whether a jury determination of grave disability is supported by substantial evidence is whether in light of the entire record, viewed in a light most favorable to the party petitioning for conservatorship and presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, any rational trier of fact could have found the essential elements of grave disability beyond a reasonable doubt.

 The evidence of grave disability due to mental disorder is overwhelming in this case.   Appellant has been suffering from severe psychological disturbances, diagnosed as paranoid schizophrenia, since 1976.   Since that time, his mental illness has manifested itself in grandiose religious delusions, one of which is appellant's outspoken belief that he is “the bride of Christ,” and in forms of paranoia evidenced by his beliefs that (1) an employee of the locked facility where he resided in September 1983 attempted to poison him by placing lithium in the fruit punch and (2) a probe had been placed in his brain by an oral surgeon under the design of former President Carter.

His mental illness, in untreated form, has proved dangerous both to himself and to others.   Appellant attempted suicide on three occasions while hospitalized in a psychiatric facility on November 4, 1977.   Appellant felt if he sacrificed himself, “mankind would be perfect.   He could kill himself and then be resurrected.”   After having killed the family dog, which appellant believed was the devil, he took his father's truck and intentionally drove it into a tree because “he saw the devil and ․ was going to run the devil over.”   On November 13, 1983, during Dr. Davis' examination of appellant for purposes of determining whether a conservator should be appointed, appellant stated he would “have to punish the woman Vicky,” the operator of the board-and-care home from which appellant was involuntarily discharged on September 26, 1983, but the punishment she would receive would be “fair.”   In summation of his November 13 examination of appellant, Dr. Davis testified he found appellant to be extremely psychotic, with a flattened affect and exhibiting anger and hostility.

In addition to these manifestations of mental illness, there was substantial evidence of appellant's inability and unwillingness to provide for his basic needs of food, clothing or shelter.   Appellant testified he refused to take his prescribed antipsychotic medication.   He believed the medication was an “elephant tranquilizer” and felt the medical authorities were trying to poison him.

Appellant's only source of income at the time of filing of the petition for conservatorship was his monthly social security disability income of $383, which he receives as a result of his mental disability.   Appellant was residing with his father for a brief period during the summer of 1983 but was then forced to leave.   The father at this time was the designated payee of appellant's social security disability income.   Appellant was given over $300 of his disability funds and spent the money in a week's time.   Appellant stated he attempted to find an apartment but could not do so;  he ended up staying with “friends” and paid them rent of something on the order of $20 per day.   His father gave him an additional $50 which was spent in 24 to 48 hours.   Appellant was then reported to be living in his car and begging for food.

When asked whether he would seek employment if he was not hospitalized, appellant responded he just wanted his freedom and did not “want to go into employment now.”   If released from institutional care, appellant stated he would go on welfare.   If forced to cook for himself, appellant declared he could “handle it just by TV dinners, ․”  If he ran out of money and could not buy food, he believed God would provide food for him, and he would not have to work for money to buy food.

Moreover, appellant's family members and ascertainable relatives were unwilling to care for him.   His father had recently suffered a heart attack and was no longer able to handle appellant's financial affairs or maintain responsibility for appellant's care.   All other family members had been contacted by phone and were not willing or able to assume responsibility for his care.   No evidence demonstrated any family member, relative or other third person was able or willing to care for him.

On the basis of the trial record, it is apparent substantial evidence supports the jury's verdict finding him gravely disabled, and consequently his attack on the sufficiency of such evidence must be rejected.

IV

 Appellant next argues one of the instructions read by the court to the jury improperly shifted the burden of proof from respondent to appellant.   The instruction objected to read as follows:

“In determining whether the proposed conservatee is gravely disabled, you should consider the following relevant facts:

“Does the respondent understand his need for treatment of a mental disorder?

“Is the respondent capable of and willing to accept treatment for this disorder?

“Is the respondent capable of and willing to make a meaningful commitment to a plan of treatment for this disorder?

“Is he capable of surviving safely in freedom with the help of willing and responsible family members, friends, or third parties[?]

“Are there willing and responsible family members, friends or third parties available to devote sufficient time, energy and resources so that he will in fact be able to survive safely in freedom[?]

“If you, as a jury, can answer yes to each of these questions, the respondent is entitled to a verdict that he is not gravely disabled.”

Appellant's stated objection to the foregoing instruction erroneously assumes respondent has the burden of proof, beyond a reasonable doubt, of each factor itemized therein.   What respondent is required to prove beyond a reasonable doubt is that the appellant (1) is “gravely disabled,” i.e., a condition in which appellant, as a result of a mental disorder, is unable to provide for his basic needs for food, clothing, or shelter, and (2) is unwilling to accept or incapable of accepting treatment voluntarily.  (§§ 5008, subd. (h)(1), 5352;  Conservatorship of Davis (1981) 124 Cal.App.3d 313, 322, 177 Cal.Rptr. 369;  Conservatorship of Chambers, supra, 71 Cal.App.3d 277, 284, 139 Cal.Rptr. 357.)

The purpose of the challenged instruction is to focus the jury's attention on significant relevant factors to consider in ascertaining whether or not a person is “gravely disabled” and unwilling or incapable of rectifying the situation himself or through the aid of third persons.⁸  In Conservatorship of Early, supra, 35 Cal.3d 244, 197 Cal.Rptr. 539, 673 P.2d 209, the Supreme Court stated that the question of whether an individual is unable to provide for his or her basic personal needs is “intended to encompass a consideration of whether the person [can] provide these basic needs with or without the assistance of willing and responsible family members, friends, or other third parties.”  (Id., at p. 254, 197 Cal.Rptr. 539, 673 P.2d 209.)   However, this is not an element of the definition of grave disability to be proved beyond a reasonable doubt.   Such a burden would place on the party petitioning to establish a conservatorship the impossible task of proving a negative, e.g., the unavailability of third party assistance.  “In the absence of evidence that third party assistance might be available, allowing speculation as to that availability by the trier of fact to defeat a finding of grave disability would contravene the purposes of the LPS Act ․” by denying care to a person whose need therefor is clearly demonstrated.  (Ibid.)  The Supreme Court in Early concluded:

“[W]e see no need to cast the burden of adducing evidence of third party assistance on any particular party to these proceedings.   Rather, we hold only that the trier of fact on the issue of grave disability must consider the availability of third party assistance to meet the basic needs of the proposed conservatee for food, clothing or shelter only if credible evidence of such assistance is adduced from any source at the trial of the issue.   If the fact-finder is a jury, it must be so instructed under these circumstances if so requested by the proposed conservatee.”  (Ibid.)

The jury in this case was instructed the burden of proof rested on the respondent to establish each of the elements of grave disability as defined beyond a reasonable doubt:

“In this action, the petitioner has the burden of establishing beyond a reasonable doubt all of the facts necessary to prove the proposed conservatee is gravely disabled.   The term ‘gravely disabled’ means 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 court then instructed the jury that it was to “consider all the evidence bearing” upon the issue of grave disability and then proceeded to list those factors in question form.   Each of the factors listed by the court had to be considered in connection with the others to arrive at a determination whether the appointment of a conservator was necessary.   The proposed conservatee's understanding of his or her need for medical treatment must be considered in light of his or her willingness to accept or the capability of obtaining treatment, with or without the aid of third persons.   In Conservatorship of Baber (1984) 153 Cal.App.3d 542, 552, 200 Cal.Rptr. 262, the court held it was error for the trial court to have instructed the jury that the proposed conservatee was entitled to a finding that he was not gravely disabled if the jury simply determined the proposed conservatee was willing to accept treatment.   The court surmised that merely because the individual was “willing” to accept treatment in the institutional setting did not resolve the issue of whether that individual was willing and “capable” of accepting or obtaining treatment in a free situation.

Moreover, the capability of an individual to obtain medical treatment necessarily involves the question of the availability of third persons to assist the individual in obtaining such treatment.   Therefore, all the questions posed by the trial court in the challenged instruction were relevant to the issue of “grave disability.”   Although one or more of these questions might not be applicable to another particular individual's situation, they were all necessary considerations in a determination of whether this appellant was gravely disabled in light of the evidence produced at the appellant's trial.   Appellant's contention of instructional error is rejected.   However, the instruction would be improved by the omission of the possibly confusing final sentence.

V

Appellant contends the trial court failed to make a finding of the least restrictive alternative placement for him and desires a remand to the trial court to correct the alleged error.

Section 5358 provides in pertinent part:

“(a) When ordered by the court after the hearing required by this section, a conservator appointed pursuant to this chapter shall place his or her conservatee in the least restrictive alternative placement, as designated by the court․

“․

“(c) If the conservatee is not to be placed in his or her own home or the home of a relative, first priority shall be to placement in a suitable facility as close as possible to his or her home or the home of a relative.   For the purposes of this section, suitable facility means the least restrictive residential placement available and necessary to achieve the purposes of treatment.   At the time that the court considers the report of the officer providing conservatorship investigation specified in Section 5356,[9] the court shall consider available placement alternatives.   After considering all the evidence the court shall determine the least restrictive and most appropriate alternative placement for the conservatee.”  (Emphasis added.)

 In the instant case, after the jury verdict finding appellant gravely disabled had been recorded, the court had the following exchange with counsel:

“THE COURT:  Did you want to be heard further, Counsel, either one of you, on whether or not Mr. Gilbuena is willing and/or capable of accepting treatment on voluntary basis?

“MR. LEE [Counsel for appellant]:  I would submit it, your Honor, on the report made for the temporary conservatorship petition and the testimony we have had today.   I would submit.

“․

“THE COURT:  All right.   I will find that Mr. Gilbuena is unwilling and incapable of accepting treatment on a voluntary basis.   I'll appoint public guardian and conservator Ory [sic ] D. Moore as his conservator in this matter.   I'll order that he be placed based on the recommendations of Fresno Care and Guidance at this point.”

Based on the record, there is no indication the trial court misunderstood its statutory duty to determine the least restrictive placement for appellant.   At the time temporary conservatorship of appellant was ordered by the trial court, the court indicated it had examined the petition and report of the investigating officer which contained the recommendation that the least restrictive placement for appellant should be confinement in a locked facility.

After having heard and considered the evidence presented at the hearing following trial, appellant's counsel stipulated the investigative report made for the temporary conservatorship be considered by the court, then submitted the matter for the court's decision.   It is apparent the court in articulating its finding as to the least restrictive alternative placement, mistakenly referred to the recommendations of “Fresno Care and Guidance.”   The only reference to Fresno Care and Guidance in the record stems from Dr. Davis' testimony that appellant was located and last interviewed at Fresno Care and Guidance.   There is no report nor recommendation in the record from Fresno Care and Guidance before the court.   The sole investigative report and recommendation before the court at the time of making its findings was the report prepared by the Kings County Department of Social Services for the temporary conservatorship of appellant.   It is apparent that all parties were aware of and considered that the court intended a locked facility based upon the Kings County investigative report.   The trial court's failure to state on the record it found the placement recommendation of Fresno Care and Guidance to be the least restrictive alternative placement did not invalidate the court's placement order of a locked facility.

Appellant's contention is without merit and is therefore rejected.

VI

Appellant asserts the matter must be remanded for the preparation of an individualized treatment plan (ITP) which is not included in the record on appeal.   Section 5352.6 requires an ITP to be made within 10 days after appointment of the conservator unless the court finds the plan to be inappropriate.

Appellant did not designate the ITP be included in the clerk's transcript on appeal, nor did any motion for augmentation order the clerk's transcript be supplemented to include the plan.   However, respondent does not appear to dispute the ITP is not in existence but asserts that section 5352.6 provides its own remedy for failure to create such a plan.   Under the terms of the section, if the treatment plan is not developed “the matter shall be referred to the court by the Short-Doyle Act community mental health service, or the staff of a facility operating under a contract to provide such services, or the conservator, or the attorney of record for the conservatee.”   In addition, when progress reviews determine the objectives of the treatment plan have been accomplished and the conservatee is no longer disabled, the conservatorship must be terminated.  (§ 5352.6.)

 As counsel of record, the State Public Defender should bring to the attention of the superior court the mandatory provisions of section 5352.6.   The conservatorship over appellant automatically terminated on December 7, 1984, and if the public guardian seeks to reestablish conservatorship, an ITP will have to be developed for the additional one-year period.

The order granting letters of conservatorship of the person and estate of Charles Gilbuena is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   Welfare and Institutions Code section 5008, subdivision (h)(1), defines “gravely disabled” 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;  ․”

2.   Unless otherwise stated, all statutory references are to the Welfare and Institutions Code.

3.   Government Code section 27706 provides:  “The public defender shall perform the following duties:  ․ [¶] (d) Upon request, or upon order of the court, the public defender shall represent any person who is not financially able to employ counsel in proceedings under Division 4 (commencing with Section 1400) of the Probate Code and Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code.”

4.   Government Code section 15421 provides:  “Upon appointment by the court or upon the request of the person involved the State Public Defender is authorized to represent any person who is not financially able to employ counsel in the following matters:  ․ (e) A proceeding of any nature where a person is entitled to representation at public expense.”   (Emphasis added.)   Amended by Stats. 1976, ch. 1269, § 1, pp. 5618–5619.)

5.   Added by Statutes 1975, chapter 1125, section 4, page 2745, operative July 1, 1976.

6.   Added by Statutes 1975, chapter 1125, section 1, page 2741, operative January 1, 1976.

7.   Penal Code section 1240.1 provides:  “(a)(1) In any noncapital criminal, juvenile court, or civil commitment case wherein the defendant would be entitled to the appointment of counsel on appeal if indigent, it shall be the duty of the attorney who represented the person at trial to provide counsel and advice as to whether arguably meritorious grounds exist for reversal or modification of the judgment on appeal.   The attorney shall admonish the defendant that he is not able to provide advice concerning his own competency, and that the State Public Defender or other counsel should be consulted for advice as to whether an issue regarding the competency of counsel should be raised on appeal.   The trial court may require trial counsel to certify that he has counselled the defendant as to whether arguable meritorious grounds for appeal exist at the time a notice of appeal is filed.   Nothing in this section shall be construed to prevent any person having a right to appeal from doing so.“(2) It shall be the duty of every attorney representing an indigent defendant in any noncapital criminal, juvenile court, or civil commitment case to execute and file on his client's behalf a timely notice of appeal when such attorney is of the opinion that arguably meritorious grounds exist for a reversal or modification of the judgment or orders to be appealed from, and where, in the attorney's judgment, it is in the defendant's interest to pursue such relief as may be available to him on appeal;  or when directed to do so by a defendant having a right to appeal.“With the notice of appeal the attorney shall file a brief statement of the points to be raised on appeal and a designation of any document, paper, pleading, or transcript of oral proceedings necessary to properly present such points on appeal when such document, paper, pleading or transcript of oral proceedings would not be included in the normal record on appeal according to the applicable provisions of the California Rules of Court.   The executing of such notice of appeal by the defendant's attorney shall not constitute an undertaking to represent the defendant on appeal unless such undertaking is expressly stated in the notice of appeal.“If the defendant was represented by appointed counsel on the trial level, or if it appears that the defendant will request the appointment of counsel on appeal by reason of indigency, the trial attorney shall also assist the defendant in preparing and submitting a motion for the appointment of counsel and any supporting declaration or affidavit as to the defendant's financial condition.   These documents shall be filed with the trial court at the time of filing a notice of appeal, and shall be transmitted by the clerk of such trial court to the clerk of the appellate court within three judicial days of their receipt.   The appellate court shall act upon such motion without unnecessary delay.   An attorney's failure to file a motion for the appointment of counsel with the notice of appeal shall not foreclose the defendant from filing a motion at any time it becomes known to him that the attorney has failed to do so, or at any time he shall become indigent if he was not previously indigent.”

8.   The phrase “․ gravely disabled' ․ must be broadly construed to include the determination of whether the establishment of a conservatorship is necessary in light of all the relevant facts.”   (Conservatorship of Davis, supra, 124 Cal.App.3d 313, 323, 177 Cal.Rptr. 369.)

9.   Section 5356 provides:  “The report of the officer providing conservatorship investigation shall contain his or her recommendations concerning the powers to be granted to, and the duties to be imposed upon the conservator, the legal disabilities to be imposed upon the conservatee, and the proper placement for the conservatee pursuant to Section 5358.   The report to the court shall also contain an agreement signed by the person or agency recommended to serve as conservator certifying that the person or agency is able and willing to serve as conservator.”

HARDIN, Associate Justice **. FN** Assigned by the Chairperson of the Judicial Council.

WOOLPERT, Acting P.J., and HAMLIN, J., concurs.