Fresno County Public Guardian v. Super. Ct. (2022) · DecisionDepot
Fresno County Public Guardian v. Super. Ct.
California Court of Appeal Jul 20, 2022 No. JAD22-03Published
Filed 5/5/22
CERTIFIED FOR PUBLICATION
IN THE APPELLATE DIVISION OF THE SUPERIOR COURT
STATE OF CALIFORNIA, COUNTY OF FRESNO
FRESNO COUNTY PUBLIC GUARDIAN, ) Sup. Ct. Appeal No. 3008 ) Petitioner, ) Sup. Ct. Case Nos. M21910568, ) M21910574 and M21910116 v. ) ) OPINION THE SUPERIOR COURT OF FRESNO ) COUNTY, ) ) Respondent; ) ) ) ) ) RODOLFO LUNA et al., ) ) Real Parties in ) Interest. ) ) ) ) ) ) ) Petition for writ of mandate from an order of the Superior
Court of Fresno County, Hilary A. Chittick, Judge. Affirmed.1
1 This opinion was originally issued by the court on May 5, 2022. It was certified for publication on May 5, 2022, which is within the time that the appellate division retained jurisdiction. This opinion has been certified for publication in the Official Reports. It is being sent to the Fifth District Court of Appeal to assist the Court of Appeal in deciding whether to order the case transferred
Attorneys and Law Firms
Libby Hellwig Teague, Fresno County Counsel, appearing on
behalf of petitioner Fresno County Public Guardian’s Office.
Nathan Lambert, Senior Deputy District Attorney, appearing on
behalf of real party in interest Fresno District Attorney’s Office.
Rebekah Tychsen, Deputy Public Defender, appearing on behalf
of real party in interest Rodolfo Luna.
Opinion
F. Brian Alvarez, J.
I.
BACKGROUND
This writ petition arises out of three misdemeanor cases in
which real party in interest, Rodolfo Luna, is charged with elder
abuse, resisting arrest, and indecent exposure. When doubts arose
about Luna’s competence to stand trial, the trial court suspended
criminal proceedings. The trial court ordered Luna to be evaluated
by a psychologist for mental competency pursuant to Penal Code
section 1368.2 Luna’s cases were then calendared in the mental
health treatment court. In her report dated January 16, 2022, Tamar
Kenworthy, Psy.D., opined Luna was incompetent to stand trial.
On January 21, 2022, the mental health treatment court found
that Luna was incompetent and not suitable for diversion under
section 1001.36, subdivision (b)(1)(D). The treatment court
referred the matter to petitioner for an LPS conservatorship based
on the opinion of Amanda Rosen, a utilization review specialist for
to the court on the court’s own motion under the California Rules of Court, rules 8-1000 – 8.1018. 2 Further undesignated references to sections are to the Penal Code.
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the Fresno County Department of Behavioral Health, who is a licensed
marriage and family therapist (LMFT).
Petitioner Fresno County Public Guardian objected to the
treatment court’s reliance on an LMFT’s opinion about Luna’s grave
disability. Ultimately, the treatment court noticed a hearing on
the issue of whether Rosen was qualified to render an opinion on
whether Luna was suffering a grave disability under section
1370.01.
At the hearing on February 25, 2022, petitioner argued that an
LMFT was not “a qualified mental health expert” for the purpose of
section 1370.01 referrals. The treatment court ruled that an LMFT
is “a qualified mental health expert” for the purpose of section
1370.01, reasoning that an LMFT can place a Welfare and Institutions
Code section 5150 hold.
Petitioner then filed the instant writ petition. Petitioner
argues that the court erred in determining that an LMFT is a
qualified mental health expert for the purposes of making a
determination under section 1370.01 that a person is gravely
disabled for a referral for an LPS investigation. Petitioner seeks
an order staying the court’s order in this case, and ordering the
court to obtain the opinion of a qualified mental health expert.
We entered an order notifying the parties that we were
considering issuing a peremptory writ of mandate in the first
instance (see Palma v. U.S. Industrial Fasteners, Inc. (1984) 36
Cal.3d 171, 180), and calendared the matter for further proceedings. We granted petitioner’s request for a stay of the trial court’s
referral order, pending the outcome of a hearing on the merits. The
Fresno County District Attorney, as a real party in interest, filed
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an informal response opposing any writ relief, arguing an LMFT is
indeed a “qualified mental health expert” under section 1370.01.
II.
DISCUSSION
Because this writ involves review of the phrase “a qualified
mental health expert” as used in newly-amended section 1370.01, we
apply the de novo review standard. (Bruns v. E-Commerce Exchange,
Inc. (2011) 51 Cal.4th 717, 724.) Here, “[o]ur task is to discern
the Legislature’s intent. The statutory language itself is the
most reliable indicator, so we start with the statute’s words,
assigning them their usual ordinary meanings, and construe them in
context. If the words themselves are not ambiguous, we presume the
Legislature meant what it said, and the statute’s plain meaning
governs. On the other hand, if the language allows more than one
reasonable construction, we may look to such aids as the legislative
history of the measure and maxims of statutory construction. In
cases of uncertain meaning, we may also consider the consequences
of a particular interpretation, including its impact on public
policy.” (Wells v. One2One Learning Foundation (2006) 39 Cal.4th
1164, 1190.)
Section 1370.01 is one of a series of statutes that establish
procedures after a criminal defendant is found mentally incompetent.
The statute only applies when the defendant is charged with one or
more misdemeanors, or a violation of misdemeanor probation, and the
trial court finds reason to believe that the defendant may be incompetent as a result of a mental health disorder. The statute
was amended effective January 1, 2022, by Senate Bill 317 (2021-
2022 Reg. Sess.), in part to eliminate referrals of incompetent
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misdemeanor defendants to custodial treatment. Applicable here,
the new statute changed how referrals to the conservatorship
investigator are initiated.3
Section 1370.01, subdivision (1)(D)(iii), now provides, in
relevant part, that if the court finds the defendant ineligible for
mental health diversion the court may “hold a hearing” to determine
whether to “refer the defendant to the county conservatorship
investigator . . . for possible conservatorship proceedings for the
defendant” pursuant to Welfare and Institutions Code section 5350,
et seq. But, “[a] defendant shall only be referred to the
conservatorship investigator if, based on the opinion of a qualified
mental health expert, the defendant appears to be gravely disabled,”
as defined in Welfare and Institutions Code section 5008. (Italic
added.) The phrase “qualified mental health expert” is not defined
by section 1370.01, or anywhere else in the Penal Code.
Petitioner takes the position that Rosen, an LMFT, is not a
“qualified mental health expert” because LMFTs cannot determine
whether a person is “gravely disabled” for the purposes of imposing
a Lanterman-Petris-Short (LPS) Act conservatorship under the
Welfare and Institutions Code. According to petitioner, Welfare
and Institutions Code sections 5352 and 5352.5 provide that only a
professional person in charge of an agency providing comprehensive
evaluation or of a facility providing intensive treatment can
recommend that a LPS Act conservatorship be established. (Welf. &
3 Prior to January 1, 2022, the court could “order the conservatorship investigator” to “initiate conservatorship proceedings” “if it appears to the court that the defendant is gravely disabled, as defined in subparagraph (A) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code.” (Pen Code § 1370.01, subd. (c)(2), Stats. 2021, c. 143 (A.B.133), § 344, eff. July 27, 2021.) -5-
Inst. Code, § 5352 [“The professional person in charge of an agency
..., or the professional person in charge of ... a county jail, or
his or her designee, may recommend conservatorship for a person
..., if ... the professional person or another professional person
designated by him or her has examined and evaluated the person and
determined that he or she is gravely disabled ...]; Welf. & Inst.
Code, § 5352.5, sub.(a) [“Conservatorship proceedings may be
initiated ... upon recommendation of the medical director of the
state hospital, or a designee, or professional person in charge of
the local mental health facility, or a designee, or the local mental
health director, or a designee, to the conservatorship investigator
...”].)
Petitioner also cites, title 9 of the California Code of
Regulations, section 822, which provides “[a]s used in the Act,
‘professional person in charge of a facility’ means a person as
defined in Section 623, 624, 625, 626, or 627 of this Chapter who
is designated by the governing board of the facility or other agency
or person having control of the facility as the professional person
clinically in charge of the facility for purposes of the
Designated mental-health treatment courts are often staffed with
mental-health justice partners, such as Rosen, who are the “existing
tools” relied upon by the court. Allowing an LMFT, like Rosen, to
opine about grave disability under section 1370.01 uses “existing
tools” to “avoid a cycle of incarceration.” We also note that using
“existing tools,” like Rosen, whom are immediately at the treatment
court’s disposal, prevents unnecessary court delays in incompetency
matters.
Petitioner asserts the treatment court’s reasoning about why
an LMFT is qualified to render an opinion on grave disability – the
ability to make an application under Welfare and Institutions Code
section 5150 – is flawed, because many unlicensed individuals are also qualified to make this application. Thus, according to
petitioner, the court’s flawed reasoning would mean that peace
officers could also make grave disability determinations. However,
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we review judicial action, not judicial reasoning. Thus, if a trial
court reaches the correct result, albeit for erroneous reasons, its
decision will be affirmed. (Rappleyea v. Campbell (1994) 8 Cal.4th
975, 981.) We believe the trial court’s action was correct.
Petitioner claims it requires “a clinical opinion” of grave
disability from a qualified mental health expert, because it does
not have the ability to do so itself. But, nothing prevents
petitioner from seeking “a clinical opinion,” if it desires one.
We believe that Rosen’s opinion about Luna’s grave disability,
whether “clinical” or not, suffices for the referral for a
conservatorship investigation. At oral argument, petitioner
asserted it had previously relied on custodial clinician reports
from treatment facilities to commence their investigation, under
former section 1370.01. Nevertheless, we do not question the wisdom
of the Legislature, where it sought to eliminate referrals for
incompetent misdemeanants to custodial treatment settings.
Finally, petitioner asserts that assuming arguendo, Rosen is
qualified to render an opinion on grave disability under section
1370.01, her opinion is nonetheless flawed because her evaluation
was not done face-to-face with Luna. According to petitioner, the
treatment court’s minute order does not reflect “a personal
evaluation” of Luna. The record is silent on this point. Put
otherwise, petitioner’s assertion of a lack of a personal evaluation
is not supported in the record. It was incumbent on petitioner to
support this assertion to carry its burden of showing error in the record. (In re Kathy P. (1979) 25 Cal.3d 91, 102.) This was not
done. Accordingly, we reject this claim.
//
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III.
DISPOSITION
The stay is lifted and the peremptory writ is discharged.
IT IS SO ORDERED.
Dated this 5th day of May, 2022.
________________________________ Hon. F. Brian Alvarez Presiding Judge of the Appellate Division of the Fresno Superior Court
________________________________ Hon. D. Tyler Tharpe Assistant Presiding Judge of the Appellate Division of the Fresno Superior Court
_______________________________ Hon. Kristi Culver Kapetan Judge of the Appellate Division of the Fresno Superior Court
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AI Brief
AI-generated · verify before citing
Holding. A licensed marriage and family therapist (LMFT) qualifies as a "qualified mental health expert" under Penal Code section 1370.01 for the purpose of opining on whether a defendant appears to be gravely disabled.
Issues
Whether a licensed marriage and family therapist (LMFT) is a "qualified mental health expert" under Penal Code section 1370.01.
Whether the trial court erred in relying on an LMFT's opinion to refer a defendant for an LPS conservatorship investigation.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Rosen, an LMFT and utilization review specialist with the Fresno County Department of Behavioral Health, is an expert trained and experienced in diagnosing and treating mental health conditions.”
“In our view, the phrase “qualified mental health expert” is unambiguous.”
“Allowing an LMFT, like Rosen, to opine about grave disability under section 1370.01 uses “existing tools” to “avoid a cycle of incarceration.””