Conservatorship of Roulet

*236 CLARK, J., Concurring and Dissenting.

The thesis of the majority opinion appears to be that because the state has failed in caring for persons suffering mental disabilities, only persons with the gravest disabilities—those who by unanimous opinion beyond any reasonable doubt are gravely disabled—should be exposed to the degradations of adjudication as mentally ill. If what the majority say of the chamber-of-horrors atmosphere at our mental institutions (none of which appears in the record of this case) is true, does it follow that only those needing the greatest help should be subjected to such a defective program?

The majority opinion is the misguided result of gratuitously applying concepts developed in adjudicating criminal misconduct to the totally different procedure for adjudicating mental disability. The majority see the issues to be essentially the same, and thus require the same standard of proof—beyond reasonable doubt—by an unanimous jury. But the issues are different in at least one essential ingredient. A criminal’s removal from the general environment is deemed a punishment and also serves to protect the general public. The removal is not for the purpose of affording direct benefits to the defendant, although it is hoped that some rehabilitative purpose will be served. On the other hand, a mentally disabled person is not removed for punitive reasons. The primaiy purpose for such removal is to benefit and protect that person.

Today’s majority decision will make it more difficult to take action when the need for action is indicated. Who benefits from this added difficulty? Certainly not the mentally disabled person in need of professional intervention but too disabled to appreciate his or her need.

It further appears on legal analysis based on statutory considerations and applicable case law, that both the beyond-a-reasonable doubt and unanimity concepts should be rejected. I consider first the legal standard of proof.

The Act does not specify a standard of proof. 1 However, it does incorporate by reference Probate Code conservatorship provisions. (§ 5350.) Although Probate Code provisions state that civil trial procedures are applicable, the provisions do not specify a particular standard of proof. Evidence Code section 115 states the general burden of proof rule, providing in relevant part: ‘‘‘‘Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.” (Italics added.) The burden of proof “otherwise provided by law” *237 includes decisional law. (Evid. Code, § 160; People v. Burnick (1975) 14 Cal.3d 306, 313-314 [ 121 Cal.Rptr. 488 , 535 P.2d 352 ].) Under these circumstances, it is incumbent upon this court to determine the appropriate burden of proof in light of the policies underlying the substantive law. (People v. Burnick, supra, atp. 314, fn. 5.)

The three traditional standards of proof, (1) evidence beyond a reasonable doubt, (2) clear and convincing evidence, and (3) preponderating evidence, represent “an attempt to instruct the fact finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” (In re Winship (1970) 397 U.S. 358, 370 [ 25 L.Ed.2d 368, 379 , 90 S.Ct. 1068 ] (Harlan, J., concurring).) As the seriousness of the consequences resulting from an erroneous judgment increase, a stricter standard is required to mitigate against the possibility of error. (People v. Burnick, supra, 14 Cal.3d 306, 310 .) In the context of the present case, the applicable standard should be determined in light of the nature and purpose of the proceedings, the potential deprivation of liberty, and the stigma incurred. (Id., at pp. 315, 319, 321.)

Whether a proceeding is denominated civil or criminal, its nature and 1 purpose must be ascertained by examining its true character. (In re Winship, supra, 397 U.S. 358, 365-366 [ 25 L.Ed.2d 368, 375-377 ]; In re Gault (1967) 387 U.S. 1, 49-50 [ 18 L.Ed.2d 527, 558-559 , 87 S.Ct. 1428 ]; Specht v. Patterson (1967) 386 U.S. 605, 608-609 [ 18 L.Ed.2d 326, 329-330 , 87 S.Ct. 1209 ].)

Grave disability is unrelated to criminal conduct. The proceedings are neither initiated by nor connected with criminal conviction. (Cf. Specht v. Patterson, supra, 386 U.S. 605 ; People v. Burnick, supra, 14 Cal.3d 306 .) The Act seeks simply to provide care for those unable to satisfy their personal needs for food, clothing, and shelter. (§§ 5008, subd. (h), 5350, 5352.) The state’s purpose is solely one of remedial treatment (People v. Valdez (1968) 260 Cal.App.2d 895, 904 [ 67 Cal.Rptr. 583 ]); it seeks neither retribution nor protection of society—the government’s primary interests in criminal prosecutions. (Specht v. Patterson, supra, 386 U.S. at pp. 608-609 [18 L.Ed.2d at pp. 329-330]; People v. Feagley (1975) 14 Cal.3d 338, 361-373 [ 121 Cal.Rptr. 509 , 535 P.2d 373 ].) The Act serves to protect the person from the consequence of his own infirmity rather than to protect society from the person. When and if the conservatee is *238 confined, confinement occurs either in the private residence of a relative or in the hospital nearest the conservatee’s home. Accordingly, it must be concluded the purpose of proceedings pursuant to the Act are remedial only, containing no element of either criminal or civil liability. (See In re Gary W. (1971) 5 Cal.3d 296, 302-303 [ 96 Cal.Rptr. 1 , 486 P.2d 1201 ].)

We are not unmindful of the potential deprivation of liberty for a gravely disabled conservatee. Such person may be confined in a hospital for up to one year. (§ 5361.) However, potential confinement is controlled by extensive statutory safeguards. Confinement does not necessarily follow establishment of the conservatorship. (§ 5358.) If it occurs at all, confinement is never in a jail, prison, or an institutional environment designed for the punishment of persons convicted of crimes. (§ 5358.) 2 Further, the conservatee is entitled to two hearings during the one-year period in addition to initial judicial determination. (§ 5364.) The conservatee may also be released within one year if the conservator gives requisite notice. (§ 6000.) At the end of one year, the conservatee has a right to immediate release. (§ 5361.)

Some degree of stigma may attach to a person judicially determined to have been gravely disabled. However, the stigma is different both in degree and kind from that following criminal conviction or involuntary commitment as a mentally disordered sex offender. Criminal convictions carry society’s approbrium based on fear and distrust. A gravely disabled person is far more likely to be viewed by society with compassion instead of fear. A prior criminal conviction may impose continuing legal impairment. The Act, on the other hand, prohibits even a presumption of incompetence. (§ 5368.)

The majority’s reliance on In re Winship, supra, 397 U.S. 358 and People v. Burnick, supra, 14 Cal.3d 306 , is misplaced. Unlike the situation presented in the instant case, those cases involved criminal proceedings. In both cases the consequence of an adverse decision subjected the individual to the possibility of confinement in a penal institution. The state’s asserted interest was primarily the protection of society. Both cases concerned much greater deprivation of liberty , than is here at issue. In Burnick the defendant was confined for an indeterminate period. In Winship the defendant was subject to potential confinement for six years. *239 Further, the proceedings reviewed in Winship carried the greater stigma of a criminal conviction and in Burnick the additional burden of mentally disordered sex offender.

Balancing the benefit and purpose of the Act against adverse consequences to the individual clearly suggests the proper standard is clear and convincing proof. (See, Woodby v. Immigration Service (1966) 385 U.S. 276 [ 17 L.Ed.2d 362 , 87 S.Ct. 483 ]; Chaunt v. United States (1960) 364 U.S. 350 [ 5 L.Ed.2d 120 , 81 S.Ct. 147 ]; Nishikawa v. Dulles (1958) 356 U.S. 129 [ 2 L.Ed.2d 659 , 78 S.Ct. 612 ].)

The less demanding standard of preponderating evidence would be improper. While this standard would allow full and efficient implementation of the statutory purpose, it would fail to adequately safeguard the individual’s rights. The consequences of a determination of grave disability may result in confinement for one year. This potential deprivation of liberty dictates a higher standard of proof be used to minimize risk of error.

Conversely, requiring the stricter standard of proof beyond a reasonable doubt is inappropriate. While insulating the individual from the possibility of erroneous decision, this standard may also prevent individuals from receiving sorely needed aid. It must be remembered that while the consequences of an erroneous judgment finding a person gravely disabled are substantial, the consequences of an erroneous judgment finding a person not to be gravely disabled may well be more severe. In the latter case, an individual may quite literally be left to languish in the streets. Application of the criminal standard would threaten the beneficial statutory purpose while increasing the stigma.

The majority also err in concluding that grave disability can be found only by unanimous jury verdict. While the Act guarantees potential conservatees the right to a jury trial, it is silent as to whether the jury’s verdict must be unanimous. (§ 5350, subd. (d).) As noted, however, the Act incorporates by reference Probate Code procedures for conservator-ships. (§ 5350.) The Probate Code provides for factual determinations by a three-fourths majority when the factfinder is a jury. (Prob. Code, §§ 1702, 1230, 1233; see Prob. Code, § 1755.) Thus, the Legislature has provided for less than unanimous jury verdicts in grave disability cases. Accordingly, the issue is whether the Legislature’s direction is constitutional.

*240 While the Constitution mandates unanimous verdicts in criminal proceedings, it permits a three-fourths jury verdict in other cases. (Cal. Const., art. I, § 16; People v. Feagley, supra, 14 Cal.3d 338, 352 ; People v. Superior Court (Thomas) (1967) 67 Cal.2d 929, 932 [ 64 Cal.Rptr. 327 , 434 P.2d 623 ].) Grave disability proceedings under the Act being civil in nature, the legislative decision does not violate the basic constitutional provision concerning the right to a jury.

In contrast, the Act provides for unanimous jury verdicts in imminently dangerous proceedings. (§ 5303.) The majority appear to hold there to be a violation of equal protection clauses of the state and federal Constitutions in denying persons subject to grave disability proceedings the right to a unanimous jury verdict while granting such a right to persons subject to imminently dangerous proceedings.

The equal protection clauses (U. S. Const., Amend. XIV; Cal. Const., art. I, § 7, subd. (b)) require that persons similarly situated receive like treatment under the law. (E.g., Reed v. Reed (1971) 404 U.S. 71, 75-76 [ 30 L.Ed.2d 225, 229-230 , 92 S.Ct. 251 ]; Brown v. Merlo (1973) 8 Cal.3d 855, 861 [ 106 Cal.Rptr. 388 , 506 P.2d 212 , 66 A.L.R.3d 505 ]; Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578 [ 79 Cal.Rptr. 77 , 456 P.2d 645 , 38 A.L.R.3d 1194 ].) Classifications must be reasonable in light of the purpose to be served. (E.g., Rinaldi v. Yeager (1966) 384 U.S. 305, 308-309 [ 16 L.Ed.2d 577, 579-580 , 86 S.Ct. 1497 ]; Brown v. Merlo, supra, at p. 861 ; Hayes v. Superior Court (1971) 6 Cal.3d 216, 223 [ 98 Cal.Rptr. 449 , 490 P.2d 1137 ].)

The verdict disparity between an imminent danger proceeding and a grave disability proceeding is justified because the persons subject to the different procedures are not similarly situated. Unlike a gravely disabled person, an imminently dangerous person poses a threat of harm to others. This danger gives rise to a governmental interest, analogous to the governmental interest in criminal proceedings. When the government’s actions are motivated not only by benevolence towards the individual, but also by an interest in protecting others from the individual’s behavior, potential for abuse exists. The proceedings may be misused as a substitute for criminal prosecution, justifying the additional safeguard of jury unanimity to protect the individual against the risk of error. (See People v. Feagley, supra, 14 Cal.3d 338 , 361 et seq.) This additional governmental interest is reflected by the fact that commitment of those found to be imminently dangerous is mandatory. (§ 5304.) Because this interest is not *241 present in grave disability proceedings, imminently dangerous and gravely disabled persons are not similarly situated. 3

The purpose of the Act’s grave disability provisions is to provide prompt, short term treatment and care to those unable to feed, clothe, and shelter themselves. Obviously, the Legislature’s classification in light of this purpose is reasonable.

The majority gratuitously conclude, based on materials not part of the record herein, that because of “the difficulty of defining mental illness, the factfinder’s deference to psychiatric testimony, and the paternalistic attitude of some appointed counsel” (ante, p. 235), proof beyond a reasonable doubt and jury unanimity are “constitutionally mandated.” There is no showing that any of the nebulous factors played any part in the instant factual determination that the conservatee is a gravely disabled person within the meaning' of the act, yet these factors are now held to constitutionally mandate the majority’s conclusions.

While the majority seek out reasons supporting the strictest test for determining grave disability—even straying far from the record to do so—they pay little or no heed to reasons for rejecting their conclusions. In determining the standard of proof and the jury requirement we are concerned with the possibility of error in judicial proceedings. In the event of such error there is the possibility that some persons not mentally ill may be confined, but there is also the risk that persons who—due to mental illness—are unable to take care of themselves will not receive care and treatment. The latter persons are faced with release without the ability to survive. Consideration of the right to freedom by persons who *242 may be erroneously committed requires rejection of the standard of proof by a mere preponderance of the evidence; humanitarian considerations for persons who may be erroneously released require rejection of the criminal standard—proof beyond a reasonable doubt—and the unanimous verdict requirement. I am satisfied that such humanitarian considerations for the mentally ill require us to opt in favor of a clear and convincing proof test and the three-fourths jury verdict. The Legislature’s decision to provide for less than an unanimous jury verdict to support a finding of grave disability is consistent with constitutional requirements.

I concur that the judgment must be reversed, but only for the reason that the jury was instructed to find on the question of grave disability by a preponderance of the evidence rather than by clear and convincing evidence. In all other respects I dissent from the majority opinion.

Richardson, J., and Manuel, J., concurred.

Respondent’s petition for a rehearing was denied March 29, 1979, and the opinion was modified to read as printed above. Clark, J., and Richardson, J., were of the opinion that the petition should be granted.

All references herein to the Act are to the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5350 et seq.) and unless otherwise specified all other statutory references are to the designated sections of the Welfare and Institutions Code.

The majority appear to argue that because persons convicted of crimes who are determined to be mentally disordered are often confined in state hospitals—as may be a mentally disordered person not convicted of a crime—confinement in a state hospital is tantamount to confinement in prison. (Ante, p. 226.) The logic of such argument escapes me.

The majority improperly rely on People v. Feagley, supra, 14 Cal.3d 338, 356 (ante, pp. 229-233) for the theory that because a fundamental interest is involved—the right to a unanimous jury verdict—the state must demonstrate a “compelling interest” justifying the distinction between grave disability and imminent danger proceedings. The majority err first in assuming the very thing at issue. They state that this “court has previously characterized the right to a unanimous jury verdict as ‘fundamental,’ ” citing Feagley. (Ante, pp. 231-232.) The issue, of course, is whether the right to a jury verdict in grave disability proceedings is “fundamental.” Feagley dealt with mentally disordered sex offender proceedings. (Welf. & Inst. Code, § 6300 et seq.) Thus the proceedings in Feagley were of an entirely different character. The defendant there had been charged with and convicted of a criminal offense as a precondition to proceedings to determine his status as a mentally disordered sex offender. He was exposed in such proceedings to commitment in an institutional unit within a state prison—not a state hospital as in the instant case. This court noted in Feagley the more severe circumstances of confinement in such a unit when compared to confinement in a state hospital, contrary to the argument elsewhere urged by the majority in this case. (People v. Feagley, supra, 14 Cal.3d 338, 346-347 .) The majority thus improperly rely on Feagley as they fail to demonstrate the same or similar fundamental right at issue here.