San Luis Obispo Cnty. Pub. Guardian v. Heather W. (In Re Heather W.)

Filed 3/2/16 CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Conservatorship of the Person of 2d Civil No. B260975 HEATHER W. (Super. Ct. No. PR130306) (San Luis Obispo County)

SAN LUIS OBISPO COUNTY PUBLIC GUARDIAN,

Petitioner and Respondent,

v.

HEATHER W.,

Objector and Appellant.

In Estate of Kevin A. (2015) 240 Cal.App.4th 1241, the trial court found a conservatee to be gravely disabled under the Lanterman-Petris-Short Act ("LPS Act"). (Welf. & Inst. Code, § 5000 et seq.) Prior to trial, the conservatee told the court he wanted a jury trial. The trial court, however, accepted the conservatee's attorney's waiver of a jury trial. The Court of Appeal reversed the trial court's order granting the petition filed by the county public conservator to reestablish a one-year conservatorship. The court accepted a jury waiver from the conservatee's attorney without determining

* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for partial publication. The portions of this opinion to be deleted from publication are identified as those portions between double brackets, e.g., [[/]].

whether the conservatee lacked the capacity to decide whether to proceed by jury trial. (Estate of Kevin A., supra, 240 Cal.App.4th at p. 1251.) Here we decide what is implicit in the holding in Estate of Kevin A. In conservatorship proceedings pursuant to the LPS Act, the trial court must obtain a personal waiver of a jury trial from the conservatee, even when the conservatee expresses no preference for a jury trial. Absent such a waiver, the court must accord the conservatee a jury trial unless the court finds the conservatee lacks the capacity to make such a decision. Heather W. appeals an order reappointing the San Luis Obispo County Public Guardian ("Public Guardian") as her conservator under the LPS Act. The conservatorship order followed a court trial. We conclude, among other things, that the trial court erred by: 1) not advising Heather W. of her right to a jury trial and 2) not obtaining Heather W.'s on-the-record personal waiver of that right without a finding that she lacked the capacity to make a jury waiver. We reverse and remand. FACTS In 2013, the Public Guardian petitioned to be appointed an LPS conservator for Heather W. because she was gravely disabled due to a mental disorder. (Welf. & Inst. Code, § 5008, subd. (h)(1)(A).) The trial court granted the petition. In 2014, the Public Guardian petitioned to be reappointed an LPS conservator for Heather W., alleging she was still gravely disabled as a result of a mental disorder. The trial court set the case for a court trial. Heather W.'s counsel did not request a jury trial. The court advised Heather W. of her right to testify, but did not advise her that she had a right to a jury trial. At trial, Doctor Rose Drago, a psychiatrist, testified that Heather W. has a "schizoaffective disorder, which is characterized by periods of psychosis intermingled with mood instability. . . . [Heather W.] has delusional content that is of a very paranoid nature. . . . She was homeless for quite a long time." Heather W. had four prior admissions to a "psychiatric health facility." She had been hospitalized seven times in