Stanford Law School - Robert Crown Law Library

Filed 2/5/07

IN THE SUPREME COURT OF CALIFORNIA
Conservatorship of the Person of BEN C. )
___________________________________ )
)
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY
Petitioner
and
Respondent,
S126664
v.
Ct.App.
4/1
D042702
BEN C.,
San
Diego
County
Objector and Appellant.
Super. Ct. No. MH93262

In an indigent criminal defendant’s first appeal as a matter of right, the
Court of Appeal must independently review the record if appointed counsel
represents he or she has found no arguable issues. (Anders v. California (1967)
386 U.S. 738 (Anders); People v Wende (1979) 25 Cal.3d 436 (Wende).) We here
consider whether the federal or California Constitution requires Anders/Wende
procedures in an appeal from the imposition of a conservatorship under the
Lanterman-Petris-Short Act (LPS Act) (Welf. & Inst. Code § 5000 et seq.).1 We
conclude neither constitution so requires and we decline to extend the procedures
under our inherent authority.

1
All further undesignated statutory references are to the Welfare and
Institutions Code.
1

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I. FACTUAL AND PROCEDURAL BACKGROUND
It is undisputed that appellant Ben C. suffers from a bipolar schizoaffective
disorder. Evidence below established that he believed his food was being
poisoned, causing his mental problems. As a consequence, he refused to eat and
lost 21 pounds in a month. He also refused to take his antipsychotic medications,
assaulted his father and grandmother, experienced hallucinations, masturbated
publicly, and sexually assaulted female staff and patients.
After a bench trial, the court found that appellant was gravely disabled by a
mental disorder and thus unable to provide for his basic needs. A conservatorship
of his person was reestablished, and the least restrictive level of placement
available was found to be a closed, locked treatment facility. (§§ 5008, subd.
(h)(1)(A), 5350.)
Appointed counsel advised the Court of Appeal he found no issues to raise.
Citing Anders, supra, 386 U.S. 738 and Wende, supra, 25 Cal.3d 436, he asked the
court to independently review the record. The Court of Appeal appointed new
counsel and requested briefing on the applicability of the Anders/Wende
procedures to conservatorship proceedings under the LPS Act.
The Court of Appeal held the Anders/Wende procedures inapplicable,
declined independent review, and affirmed the judgment. We affirm the judgment
of the Court of Appeal.
II. DISCUSSION
In
Anders, supra, 386 U.S. 738, the United States Supreme Court addressed
the responsibilities of court and counsel when counsel concludes there are no
meritorious issues in a criminal defendant’s first appeal as a matter of right. “[I]f
counsel finds his case to be wholly frivolous, after a conscientious examination of
it, he should so advise the court and request permission to withdraw. That request
must, however, be accompanied by a brief referring to anything in the record that
2

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might arguably support the appeal. A copy of counsel’s brief should be furnished
the indigent and time allowed him to raise any points that he chooses; the court—
not counsel—then proceeds, after a full examination of all the proceedings, to
decide whether the case is wholly frivolous. If it so finds it may grant counsel’s
request to withdraw and dismiss the appeal insofar as federal requirements are
concerned, or proceed to a decision on the merits, if state law so requires. On the
other hand, if it finds any of the legal points arguable on their merits (and therefore
not frivolous) it must, prior to decision, afford the indigent the assistance of
counsel to argue the appeal.” (Id. at p. 744.)2
Wende, supra, 25 Cal.3d 436 provided a gloss on Anders, supra, 386 U.S.
738. “The Wende court . . . stated its view that, even if counsel believes the appeal
to lack any basis in law or fact, he need not move to withdraw so long as he (1)
does not advise the court of his belief and thereby disqualify himself, and (2)
informs the defendant that he may request the court to relieve him if he so
desires.” (Sade C., supra, 13 Cal.4th at p. 980.)
First, we turn to the question whether Anders, supra, 386 U.S. 738 is
directly applicable in LPS Act conservatorship appeals. In Pennsylvania v. Finley
(1987) 481 U.S. 551 (Finley), the high court declined to extend Anders to
collateral attacks upon criminal convictions. The court noted that its cases
“establish that the right to appointed counsel extends to the first appeal of right,
and no further.” (Finley, at p. 555.) If a defendant “has no underlying

2
In In re Sade C. (1996) 13 Cal.4th 952 (Sade C.), we recognized that,
“since the day it was decided, Anders has been subjected to ‘consistent and severe
criticism.’ (Note, The Right to Counsel in ‘Frivolous’ Criminal Appeals: A
Reevaluation of the Guarantees of Anders v. California (1988) 67 Tex. L.Rev.
181, 212.) That criticism, of course, does not affect its authority.” (Id. at p. 979,
fn. 7.)
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constitutional right to appointed counsel,” the defendant cannot “insist on the
Anders procedures which were designed solely to protect that underlying
constitutional right.” (Id. at p. 557.)
Following the reasoning of Finley, supra, 481 U.S. 551, we held in Sade C.,
supra, 13 Cal.4th 952 that the Anders procedures do not apply to an indigent
parent’s appeal from a juvenile court decision affecting child custody or parental
status. (Id. at p. 959.) “By its very terms, Anders’s ‘prophylactic’ procedures are
limited in their applicability to appointed appellate counsel’s representation of an
indigent criminal defendant—and there only in his first appeal as of right. An
indigent parent adversely affected by a state-obtained decision on child custody or
parental status is simply not a criminal defendant. Indeed, the proceedings in
which he is involved must be deemed to be civil in nature and not criminal.” (Id.
at p. 982.)
By the same reasoning, the Anders/Wende procedures are not required in
appeals from LPS conservatorship proceedings. The conservatee is not a criminal
defendant and the proceedings are civil in nature. (Conservatorship of Susan T.
(1994) 8 Cal.4th 1005, 1008 (Susan T.))
Relying primarily on Conservatorship of Roulet (1979) 23 Cal.3d 219
(Roulet), appellant argues that Anders, supra, 386 U.S. 738 should nevertheless be
extended to such appeals. In Roulet, this court held that “[t]he due process clause
of the California Constitution requires that proof beyond a reasonable doubt and a
unanimous jury verdict be applied to conservatorship proceedings under the LPS
Act.” (Roulet, at p. 235.) The rationale for the decision was that “[t]he
appointment of a conservator for appellant and her subsequent confinement in a
mental hospital against her will deprived appellant of freedom in its most basic
aspects and placed a lasting stigma on her reputation.” (Id. at p. 223.) The court
rejected the respondent’s “reliance on a civil label.” (Id. at p. 225.)
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“[R]espondent takes false comfort in the fact that appellant’s commitment is only
a ‘civil’ confinement for remedial purposes. However, these are mere labels.
Appellant’s stay in Camarillo State Hospital was not any less involuntary because
the state called her incarceration by one name rather than another. As the United
States Supreme Court has authoritatively written, ‘commitment is a deprivation of
liberty. It is incarceration against one’s will, whether it is called “criminal” or
“civil.” ’ (In re Gault (1967) 387 U.S. 1, 50.) In a subsequent opinion, the
Supreme Court reiterated that ‘civil labels and good intentions do not themselves
obviate the need for criminal due process safeguards . . . .’ (In re Winship (1970)
397 U.S. 358, 365-366.)” (Roulet, at pp. 224-225.)
More recently this court has recognized, however, that the analogy between
criminal proceedings and proceedings under the LPS Act is imperfect at best and
that not all of the safeguards required in the former are appropriate to the latter. In
Susan T., supra, 8 Cal.4th 1005, we held that the exclusionary rule does not apply
in LPS proceedings. “We find no similarity between the aims and objectives of
the act and those of the criminal law. What we have said of commitment
proceedings for the mentally retarded (§ 6500-6513) is equally true of
conservatorship proceedings under the act: ‘The commitment is not initiated in
response, or necessarily related, to any criminal acts; it is of limited duration,
expiring at the end of one year and any new petition is subject to the same
procedures as an original commitment [citation]; the petitioner need not be a
public prosecutor . . . . The sole state interest, legislatively expressed, is the
custodial care, diagnosis, treatment, and protection of persons who are unable to
take care of themselves and who for their own well being and the safety of others
cannot be left adrift in the community. The commitment may not reasonably be
deemed punishment either in its design or purpose. It is not analogous to criminal
proceedings.’ [Citations.]” (Susan T., at p. 1015.) As the United States Supreme
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Court has observed: “ ‘[T]he mere fact that a person is detained does not
inexorably lead to the conclusion that the government has imposed punishment.’
[Citation.] . . . . If detention for the purpose of protecting the community from
harm necessarily constituted punishment, then all involuntary civil confinements
would have to be considered punishment. But we have never so held.” (Kansas v.
Hendricks (1997) 521 U.S. 346, 363 [involuntary confinement under Kansas’s
Sexually Violent Predator Act not being punitive, double jeopardy and ex post
factor principles held inapplicable].)
The salient question here is whether the absence of the Anders/Wende
procedures significantly increases the risk of erroneous resolutions. As we explain
below, it does not. (See Sade C., supra, 13 Cal.4th at pp. 990-991.)
Concluding that the federal due process clause did not compel the extension
of Anders, supra, 386 U.S. 738 the Sade C. court tracked the analysis in Lassiter v.
Department of Social Services (1981) 452 U.S. 18 (Lassiter). Lassiter held that
the Fourteenth Amendment’s due process clause did not give an indigent parent
the right to appointed trial counsel in a state-initiated proceeding on parental
status. Both courts balanced three factors: “(1) the private interests at stake; (2)
the state’s interests involved; and (3) the risk that the absence of the procedures in
question will lead to an erroneous resolution of the appeal.” (Sade C., supra, 13
Cal.4th at p. 987.)
The competing private interests at stake in Sade C. were those of the
indigent parent and his child. The parent has a liberty interest in the care, custody,
and rearing of his child. The child has a liberty interest in a stable family home.
Both have an interest in the accurate and just resolution of the parent’s appeal.
(Sade C., supra, 13 Cal.4th at pp. 987-989.) The state has several interests:
promoting the welfare of the child, securing a just appellate resolution, reducing
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procedural costs and burdens, and concluding the proceedings both fairly and
expeditiously. (Id. at pp. 989-990.)
We concluded in Sade C. that the absence of the Anders procedures would
not significantly raise the risk of an erroneous appellate resolution. “[O]ur
consideration of the many cases that have come before us on petition for review
reveals that appointed appellate counsel faithfully conduct themselves as active
advocates in behalf of indigent parents.” (Sade C., supra, 13 Cal.4th at p. 990.)
The experience of Division One of the Fourth Appellate District of the Court of
Appeal confirmed this conclusion. (Ibid.) In In re Brian B. (1983) 141
Cal.App.3d 397 and In re Joyleaf W. (1984) 150 Cal.App.3d 865, that court had
applied Anders procedures to appeals from the termination of parental rights under
the juvenile court law. However, having followed the procedures for more than a
decade, it reassessed its position: “[W]e have discovered, to the best of our
present recollection, no unbriefed issues warranting further attention.” (In re
Angelica V. (1995) 39 Cal.App.4th 1007, 1015.) Accordingly, it concluded the
procedures were “unproductive” (id. at p. 1016) and overruled Brian B. and
Joyleaf W. (Angelica V., at p. 1012).
After balancing the interests of the parent, child, and state, Sade C. held
that due process does not compel an extension of Anders’s procedures to appeals
regarding cases of child custody or parental status. “Procedures that are
practically ‘unproductive,’ like those in question, need not be put into place, no
matter how many and how weighty the interests that theoretically support their
use.” (Sade C., supra, 13 Cal.4th at pp. 990-991.)
A similar analysis supports the conclusion that neither federal nor state due
process guarantees compel an extension of Anders/Wende to conservatorship
appeals.
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The LPS Act promotes a variety of private and public interests. Among its
goals are “ending the inappropriate and indefinite commitment of the mentally ill,
providing prompt evaluation and treatment of persons with serious mental
disorders, guaranteeing and protecting public safety, safeguarding the rights of the
involuntarily committed through judicial review, and providing individualized
treatment, supervision and placement services for the gravely disabled by means
of a conservatorship program. (§ 5001.)” (Susan T., supra, 8 Cal.4th at p. 1009.)
The Act also serves to protect the mentally ill from criminal victimization
(§ 5001, subd. (g)) and from the myriad forms of suffering endured by those
unable to care for themselves.
The liberty interests at stake in a conservatorship proceeding are significant.
A person found to be gravely disabled may be involuntarily confined for up to one
year, and the conservatorship may be extended for additional one-year periods, so
long as the person remains gravely disabled. (§ 5361.) In addition to physical
restraint, “[t]he gravely disabled person for whom a conservatorship has been
established faces the loss of many other liberties . . . .” (Roulet, supra, 23 Cal.3d
at p. 227.)3 Moreover, a person suffering from a grave mental disorder is

3
Section 5357 provides: “All conservators of the estate shall have the
general powers specified in Chapter 6 (commencing with Section 2400) of Part 4
of Division 4 of the Probate Code and shall have the additional powers specified in
Article 11 (commencing with Section 2590) of Chapter 6 of Part 4 of Division 4 of
the Probate Code as the court may designate. The report shall set forth which, if
any, of the additional powers it recommends. The report shall also recommend for
or against the imposition of each of the following disabilities on the proposed
conservatee:

“(a) The privilege of possessing a license to operate a motor vehicle. If the
report recommends against this right and if the court follows the recommendation,
the agency providing conservatorship investigation shall, upon the appointment of
the conservator, so notify the Department of Motor Vehicles.

“(b) The right to enter into contracts. The officer may recommend against
the person having the right to enter specified types of transactions or transactions
in excess of specified money amounts.
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obviously in a poor position to influence or monitor counsel’s efforts on his
behalf. Accordingly, the Legislature and this court have built several layers of
important safeguards into conservatorship procedure. These safeguards are
extensive and designed to serve all three of the Lassiter/Sade C. considerations.
(See Sade C., supra, 13 Cal.4th at p. 987.)
Before a person may be found to be gravely disabled and subject to a year-
long confinement, the LPS Act provides for a carefully calibrated series of
temporary detentions for evaluation and treatment. “The act limits involuntary
commitment to successive periods of increasingly longer duration, beginning with
a 72-hour detention for evaluation and treatment (§ 5150), which may be extended
by certification for 14 days of intensive treatment (§ 5250); that initial period may
be extended for an additional 14 days if the person detained is suicidal. (§ 5260.)
The 14-day certification may be extended for an additional 30-day period for
further intensive treatment. (§ 5270.15.) Persons found to be imminently
dangerous may be involuntarily committed for up to 180 days beyond the 14-day
period. (§ 5300.) After the initial 72-hour detention, the 14-day and 30-day
commitments each require a certification hearing before an appointed hearing
officer to determine probable cause for confinement unless the detainee has filed a
petition for the writ of habeas corpus. (§§ 5256, 5256.1, 5262, 5270.15, 5275,

“(c) The disqualification of the person from voting pursuant to Section
2208 of the Elections Code.

“(d) The right to refuse or consent to treatment related specifically to the
conservatee's being gravely disabled. The conservatee shall retain all rights
specified in Section 5325.

“(e) The right to refuse or consent to routine medical treatment unrelated to
remedying or preventing the recurrence of the conservatee's being gravely
disabled. The court shall make a specific determination regarding imposition of
this disability.

“(f) The disqualification of the person from possessing a firearm pursuant
to subdivision (e) of Section 8103.”
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5276.) A 180-day commitment requires a superior court order. (§ 5301.)” (Susan
T., supra, 8 Cal. 4th at p. 1009.)
This series of temporary detentions may culminate in a proceeding to
determine whether the person is so disabled that he or she should be involuntarily
confined for up to one year. (§§ 5350, 5361.) Because of the important liberty
interests at stake, correspondingly powerful safeguards protect against erroneous
findings. “The proposed conservatee is entitled to demand a jury trial on the issue
of his or her grave disability, and has a right to counsel at trial, appointed if
necessary. (§§ 5350, 5365.) The party seeking imposition of the conservatorship
must prove the proposed conservatee’s grave disability beyond a reasonable doubt
and the verdict must be issued by a unanimous jury. (Conservatorship of Roulet
(1979) 23 Cal.3d 219.)” (Susan T., supra, 8 Cal. 4th at p. 1009.)
During a one-year conservatorship, a conservatee may twice petition for
rehearing. (§ 5364.)4 At a rehearing, a conservatee need only prove by a
preponderance of the evidence that he or she is no longer gravely disabled.
(Conservatorship of Everette M. (1990) 219 Cal.App.3d 1567, 1573; Baber v.
Superior Court (1980) 113 Cal.App.3d 955, 966.) The matter is tried by the court
(People v. Tilbury (1991) 54 Cal.3d 56, 64; Baber, at pp. 960-965), and the
conservatee again has a right to appointed counsel (§§ 5364, 5365).
A conservatorship automatically terminates at the end of a year. (§ 5361.)
If the conservator seeks a one-year extension, “[t]he petition must include the
opinion of two physicians or licensed psychologists who have a doctoral degree in
psychology and at least five years of postgraduate experience in the diagnosis and

4
Section 5364 provides in pertinent part: “At any time, the conservatee may
petition the superior court for a rehearing as to his status as a conservatee.
However, after the filing of the first petition for rehearing pursuant to this section,
no further petition for rehearing shall be submitted for a period of six months.”
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treatment of emotional and mental disorders that the conservatee is still gravely
disabled . . . .” (Ibid.) At a hearing to reestablish a conservatorship after its
automatic expiration, the standard of proof beyond a reasonable doubt and the
rights to appointed counsel, to a court or jury trial, and to a unanimous jury verdict
again apply. (§§ 5350, subd. (d), 5365; Conservatorship of Guerrero (1999) 69
Cal.App.4th 442, 446; Conservatorship of Delay (1988) 199 Cal.App.3d 1031,
1036-1037, fn. 6.)
Finally, in an appeal of a conservatorship, the conservatee is entitled to the
appointment of counsel, as occurred in this case. The Rules of Court also create
safeguards to ensure active advocacy on appeal. A Court of Appeal must now
evaluate an attorney’s qualifications for appointment, divide its appointments list
into at least two levels based on experience and qualifications, match an attorney
with the demands of the case, and review and evaluate the performance of
appointed counsel to determine whether they should remain on the list at the same
level, be placed on a different level, or be deleted from the list. (Cal. Rules of
Court, rule 8.300.)5
If a conservatorship is sustained on appeal, all safeguards remain in effect.
The conservatorship still automatically expires at the end of a year. If a
conservator seeks a new one-year commitment, the conservator again bears the

5
Appellant asserts there are fewer conservatorship appeals than parental
rights termination appeals. Based on this assertion, he argues that we should
assume that counsel in the latter perform less well than counsel in the former.
Even assuming that conservatorship appeals are less common, it does not follow
that appellate counsel in conservatorship matters perform incompetently. Any
concerns about counsels’ competence would most directly be addressed by further
refining the process for appointing and training counsel. It would not be to
“require an appellate court to abandon its traditional role as an adjudicatory body
and to enter the appellate arena as an advocate.” (Wende, supra, 25 Cal.3d at pp.
443-444 (dis. opn. of Clark, J.).) The roles of court and counsel in our adversary
system are carefully delimited. We confuse them at our peril.
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burden of proof beyond a reasonable doubt. The conservatee again has the rights
to appointed counsel, a jury trial, and a unanimous verdict. If the conservatorship
is reestablished, the conservatee has renewed rehearing and appellate rights.
By establishing the layers of protections described, the Legislature, this
court, and the Judicial Council have vigilantly guarded against erroneous
conclusions in conservatorship proceedings. These procedures reflect an
extension of many safeguards also afforded to criminal defendants, while taking
into account the essential differences between the two systems. Ordinarily, once a
criminal judgment and sentence are final, the trial court loses jurisdiction to
correct error. (But see Pen. Code, § 1170, subd. (d).) The criminal defendant’s
only recourse then is to the courts of review. The LPS scheme is quite different
because of the one-year limit on commitments and the ability of the conservatee to
return twice to the trial court for reconsideration during that 12-month period.
As a result, the trial court’s ongoing supervision remains focused on a
conservatee’s current needs and condition, in a manner quite different from that
followed in a criminal context. Allowing continuing trial court attention ensures
much more direct and appropriate intervention. It strikes the Lassiter/Sade C.
balance in a qualitatively different way. It provides the conservatee with a more
immediate avenue for modification than that afforded by the more cumbersome
appellate review. And, it keeps the focus primarily on the conservatee’s current
needs and progress, rather than on a retrospective consideration of conditions that
may no longer exist. For all these reasons we conclude that the current approach
provides a panoply of safeguards appropriately geared to the specific goals and
interests involved. The extension of Anders/Wende is thus not required.
Appellant’s equal protection claim rests on the premise that criminal
defendants and LPS conservatees are similarly situated. The premise fails.
Criminal defendants face punishment, but an LPS commitment “ ‘may not
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reasonably be deemed punishment either in its design or purpose.’ ” (Susan T.,
supra, 8 Cal.4th at p. 1015.)
Finally, appellant urges us to extend Anders/Wende procedures under our
inherent power to declare rules of California appellate procedure. We decline to
do so. Both the individual and the community have a profound interest in the
calibrated and appropriate treatment of those who suffer from grave mental
impairment. While placement in a secure setting is a burden on freedom, it is
imposed, on a time-limited basis, to protect both the patient and his neighbors.
Society has an obligation to ensure that freedom is not impinged upon
unnecessarily or for an inappropriate period. The extensive framework of
modulated intervention, under the supervision of both mental health professionals
and the courts, has been created to provide that assurance. Adding yet another
layer of review would be an undue expansion in cases that have been so
extensively supervised, under the full panoply of protections afforded by jury trial,
proof beyond a reasonable doubt, and the assistance of at least two appointed
counsel. We decline to extend a system of review that is not constitutionally
compelled and that we, ourselves, have recognized has been subject to
“ ‘consistent and severe criticism’ ” from its inception. (Sade C., supra, 13
Cal.4th a p. 979, fn. 7.)
We offer the following guidance for the Courts of Appeal. If appointed
counsel in a conservatorship appeal finds no arguable issues, counsel need not and
should not file a motion to withdraw. Instead, counsel should (1) inform the court
he or she has found no arguable issues to be pursued on appeal; and (2) file a brief
setting out the applicable facts and the law.6 Such a brief will provide an adequate

6
The conservatee is to be provided a copy of the brief and informed of the
right to file a supplemental brief.
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basis for the court to dismiss the appeal on its own motion.7 Dismissal of an
appeal raising no arguable issues is not inconsistent with article VI, section 14 of
the California Constitution requiring that decisions determining causes “be in
writing with reasons stated.”8 Nothing is served by requiring a written opinion
when the court does not actually decide any contested issues.
We
disapprove
Conservatorship of Margaret L. (2001) 89 Cal.App.4th 675
and Conservatorship of Besoyan (1986) 181 Cal.App.3d 34 insofar as they held
that Anders/Wende procedures apply to appeals in conservatorship proceedings
under the LPS Act.

7
The court may, of course, find it appropriate to retain the appeal.

8
In Sade C., supra, (1996) 13 Cal.4th 952, we stated that the Court of
Appeal did not err in dismissing the appeals as abandoned. “A ‘reviewing court
has inherent power, on motion or its own motion, to dismiss an appeal which it
cannot or should not hear and determine.’ (9 Witkin, Cal. Procedure (3d ed. 1985)
Appeal, § 508, p. 494.) An appealed-from judgment or order is presumed correct.
(E.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Hence, the appellant
must make a challenge. In so doing, he must raise claims of reversible error or
other defect (see ibid.), and ‘present argument and authority on each point made’
(County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591; accord, In re
Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278). If he does not,
he may, in the court's discretion, be deemed to have abandoned his appeal. (Berger
v. Godden [(1985)] 163 Cal.App.3d [1113,] 1119.) In that event, it may order
dismissal. (Ibid.) Such a result is appropriate here. With no error or other defect
claimed against the orders appealed from, the Court of Appeal was presented with
no reason to proceed to the merits of any unraised ‘points’—and, a fortiori, no
reason to reverse or even modify the orders in question. (See People v. Brigham
(1979) 25 Cal.3d 283, 289.) [Fn.]” (Id. at p. 994.)
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III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
CORRIGAN, J.

WE
CONCUR:

BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.

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DISSENTING OPINION BY GEORGE, C. J.

In this case, we address whether independent review is required in an
appeal from the imposition of a conservatorship under the Lanterman-Petris-Short
Act (Welf. & Inst. Code, § 5000 et seq.; LPS Act). It is undisputed that the private
interests at stake are of the most fundamental nature, as the conservatee may be
subjected to restraints upon physical freedom and personal autonomy for lengthy
periods, and may be denied other basic civil rights as well. It also is undisputed
that the state’s interest in avoiding the additional procedure of independent review
is essentially nonexistent. The only remaining consideration is the risk that the
absence of independent review will lead to an erroneous decision. The majority
concludes that procedural safeguards afforded a conservatee in the trial court
establish that independent review is unnecessary on appeal. As explained below,
because it is not apparent that appointed appellate counsel have acted as active
advocates in matters such as this and that errors have not been overlooked on
appeal, independent review is required pursuant to the analysis established by our
decision in In re Sade C. (1996) 13 Cal.4th 952 (Sade C.).
I.
The procedure that Ben seeks to have applied in the present case was
established by Anders v. California (1967) 386 U.S. 738, in which the United
States Supreme Court concluded that “[t]he constitutional requirement of
substantial equality and fair process can only be attained where counsel acts in the
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role of an active advocate in behalf of his client, as opposed to that of amicus
curiae.” (Id. at p. 744.) Therefore, when appointed appellate counsel for a
criminal defendant determines that the appeal is wholly frivolous, counsel must
file “a brief referring to anything in the record that might arguably support the
appeal. A copy of counsel’s brief should be furnished the indigent and time
allowed him to raise any points that he chooses; the court — not counsel — then
proceeds, after a full examination of all the proceedings, to decide whether the
case is wholly frivolous.” (Ibid.) In People v. Wende (1979) 25 Cal.3d 436
(Wende), this court approved a modified procedure (Anders/Wende) pursuant to
which counsel files a brief summarizing the proceedings and facts with citations to
the record, and the appellate court conducts a review of the entire record to
determine whether there is any arguable issue. (Id. at p. 441.)
Sade C., supra, 13 Cal.4th 952, addressed whether the Anders/Wende
procedures should be extended to a parent who has a constitutional right to the
appointment of appellate counsel in a parental rights termination proceeding. (Id.
at p. 986.) To resolve this issue, the court applied the mode of analysis set out in
Lassiter v. Department of Social Services (1981) 452 U.S. 18 (Lassiter). As
explained in Lassiter, the “three elements to be evaluated in deciding what due
process requires [are] the private interests at stake, the government’s interest, and
the risk that the procedures used will lead to erroneous decisions.” (Id. at p. 27.)
Sade C.’s analysis of these three elements provides a model that is helpful in
comparing the interests at stake in LPS Act appeals.
Our opinion in Sade C. began with an analysis of the private interests of the
parent and the child. The parent has a fundamental liberty interest in the care,
custody, and management of his or her child, and a derivative liberty interest in the
accurate and just resolution of the parent’s appeal from the termination of parental
rights. Although these interests arguably would receive greater protection if
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independent review were required, “the appealed-from decision, which is adverse
to the parent and is predicated on detriment he caused or allowed his child to
suffer, is presumptively accurate and just. [Citation.]” (Sade C., supra, 13 Cal.4th
at p. 988.) The child has an interest in a “ ‘normal family home’ ” or at least a
“ ‘stable’ ” home, and this interest has been characterized as “ ‘important’ ” and
“ ‘compelling.’ ” (Ibid.) The child also has a derivative liberty interest in an
accurate and just resolution of the parent’s appeal, but in view of the presumption
that the judgment based on a finding of detriment to the child is accurate and just,
there is a further presumption that “the wants and needs of parent and child are
inconsistent.” (Id. at p. 989.)
The state has an “ ‘urgent’ ” interest in preserving and promoting the
welfare of the child, and an “ ‘important’ ” interest in an accurate and just
resolution of the parent’s appeal. (Sade C., supra, 13 Cal.4th at p. 989.) It also
“has a ‘fiscal and administrative interest in reducing the cost and burden of [the]
proceedings.’ [Citations.]” (Ibid.) Its concern with expense is merely
“ ‘legitimate,’ ” but its concern with prompt resolution is more important. (Id. at
p. 990.) “Proceedings such as these ‘must be concluded as rapidly as is consistent
with fairness . . . .’ [Citation.] A ‘period of time’ that ‘may not seem . . . long . . .
to an adult . . . can be a lifetime to a young child.’ [Citation.]” (Ibid.) To the
extent the application of Anders/Wende procedures delays resolution of the appeal,
their application conflicts with the interests of the child, but to the extent they
promote an accurate and just resolution, they promote the child’s interests.
Because the judgment is presumptively correct, however, the child’s welfare
presumptively “lies with someone other than his parent.” (Ibid.)
Finally, with respect to the risk that the absence of Anders/Wende review
will lead to an erroneous resolution of the appeal, the court observed in Sade C.
that “our consideration of the many cases that have come before us on petition for
3

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review reveals that appointed appellate counsel faithfully conduct themselves as
active advocates in behalf of indigent parents. . . . In accord is the experience of
Division One of the Fourth Appellate District of the Court of Appeal, as it recently
recounted in In re Angelica V. Having applied the procedures in question for more
than a decade . . . , the court declared that ‘we have discovered, to the best of our
present recollection, no unbriefed issues warranting further attention.’ (In re
Angelica V. [(1995)] 39 Cal.App.4th [1007,] 1015, italics added.)” (Sade C.,
supra, 13 Cal.4th at p. 990.) Because the court determined that Anders/Wende
procedures would be “ ‘unproductive,’ ” it further concluded that they “need not
be put into place, no matter how many and how weighty the interests that
theoretically support their use. To be sure, these procedures may have ‘symbolic’
value of some kind. [Citation.] Such value, however, is too slight to compel their
invocation.” (Id. at pp. 990-991, fn. omitted.)
II.
A.
The private interests at stake in an LPS conservatorship proceeding are
greater than those involved in a parental rights termination proceeding and in some
respects are more significant than the interests of a defendant facing criminal
charges. The circumstance that the conservatee may be civilly confined in a
mental institution rather than criminally incarcerated does not alter the
“ ‘ “ ‘massive curtailment of liberty’ ” ’ ” entailed by involuntary restraint.
(Conservatorship of Roulet (1979) 23 Cal.3d 219, 224.)1 Not only may a

1
The majority appears to acknowledge that the civil nomenclature and
altruistic intentions that characterize conservatorship proceedings do not mitigate
the ensuing drastic impingement on a conservatee’s civil rights, but suggests that
our opinion in Conservatorship of Susan T. (1994) 8 Cal.4th 1005 reflects an
acknowledgement that civil and criminal detainment are different in nature. (Maj.
opn., ante, at pp. 4-5.) This suggestion ignores the specific and limited issue
resolved in that case. Susan T. decided only that the exclusionary rule does not
4

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conservatee be confined involuntarily, he or she may lose numerous civil rights,
including the right to manage money, property, and litigation, the right to decide
whether to take medication or to receive medical treatment, the right to vote, the
right to remain licensed to practice a profession, and the right to enter into
contracts. (Conservatorship of Roulet, supra, 23 Cal.3d at pp. 227-228.)2
Moreover, a conservatee suffers the stigma of the adjudication. “It is indisputable
that commitment to a mental hospital ‘can engender adverse social consequences
to the individual’ and that ‘[w]hether we label the phenomena “stigma” or choose
to call it something else . . . we recognize that it can occur and that it can have a
very significant impact on the individual.’ [Citations.]” (Vitek v. Jones 1980) 445

apply in LPS proceedings, because the purpose of the rule — deterring future
unlawful police conduct — is not served in the context of such cases. A mental
health worker’s concern is focussed on protecting the potential conservatee, not on
gathering evidence to secure a conviction. Not only would the deterrent effect of
applying the exclusionary rule in LPS proceedings be marginal at best, application
of the rule would frustrate the purposes of evaluating and treating gravely disabled
persons. (Susan T. at p. 1019.) Susan T. did not suggest that the private interests
at stake in LPS proceedings are any less fundamental or that the potential
curtailment of such interests in those proceedings is any less massive than was
recognized in Conservatorship of Roulet. Thus, it is irrelevant to the analysis in
this case that the conservatee may be confined for reasons other than punishment.
(See Conservatorship of Roulet, supra, 23 Cal.3d at p. 227 [“mere fact that
appellant found herself confined in a hospital rather than a prison does not
eliminate the need to protect her against false confinement”]; Conservatorship of
Joel E. (2005) 132 Cal.App.4th 429, 438 [explaining that criminal procedures
have been afforded when the interest at issue is false confinement, and that “when
the rights at issue do not bear on the accuracy of the results, courts have not
extended criminal procedural protections to civil commitment proceedings”].)
2
The court’s order that Ben be placed in a closed locked treatment facility
further provided, among other matters, that he “[s]hall not have the right to refuse
or consent to routine medical treatment and medication unrelated to remedying or
preventing the recurrence of the conservatee’s grave disability.” (Italics added.)
As noted at oral argument, Ben is not allowed to make the decision whether to
ingest a tablet of aspirin.
5

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U.S. 480, 492; see also Conservatorship of Roulet, supra, 23 Cal.3d at pp. 228-
229.) Finally, “these statutes assure in many cases an unbroken and indefinite
period of state-sanctioned confinement. ‘The theoretical maximum period of
detention is life as successive petitions may be filed . . . .’ [Citation.]”
(Conservatorship of Roulet, supra, 23 Cal.3d at p. 224.)
Not only are the private interests involved greater than those in other cases,
but all of the private interests weigh in favor of affording additional review of the
proceedings ⎯ unlike the situation where a child may be awaiting resolution of
his or her status and is being denied a final, stable placement, or where a crime
victim seeks a prompt resolution of the appeal. Because there is no party (other
than the conservatee) whose interest is affected by the rebuttable presumption that
the judgment is correct, that presumption is irrelevant to the analysis in this
context. (See Sade C., supra, 13 Cal.4th at p. 990 [because judgment terminating
parental rights is presumptively correct, a child’s welfare presumptively lies with
someone other than the parent].)
B.
Regarding the second due process factor, the state shares the conservatee’s
interest in a correct adjudication. (See Welf. & Inst. Code, § 5001 [legislative
intent to end the inappropriate, indefinite, and involuntary commitment of
mentally disordered persons].) Although the state has a countervailing interest in
avoiding the expense of additional procedures, this interest has been described as
“hardly significant” and merely “legitimate.” (Lassiter, supra, 452 U.S. at p. 28;
Sade C., supra, 13 Cal.4th at p. 990.) In the context of evaluating whether
independent review should be required in appeals in conservatorship proceedings
under the LPS Act, it appears that no pecuniary interest of the state is implicated.
According to a declaration submitted by Appellate Defenders, Inc., from January
1, 2001, through March 2004 when this case was briefed in the Court of Appeal,
6

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counsel had been appointed in only 14 LPS appeals in the entire Fourth Appellate
District, and Wende briefs had been filed in only two of those appeals, including
the instant matter. The Court of Appeal for the Fourth Appellate District handles
approximately one-quarter of all of the contested matters filed in California’s six
Courts of Appeal, so if its experience is typical, a total of approximately eight
Wende briefs would have been filed in all of the Courts of Appeal during that
three-year period. Even if a Wende brief had been filed in every LPS appeal in
which counsel was appointed, only 14 Wende briefs would have been filed in the
Fourth Appellate District during those years.
In addition, the appeals themselves require minimal time to review, because
they arise from proceedings that are neither lengthy nor complex. As Justice
Crosby noted in Conservatorship of Margaret L. (2001) 89 Cal.App.4th 675, 682,
“We did not find it too burdensome under these circumstances to expend two or
three hours to review this sparse record for arguable issues. Such cases, after all,
terrorize us with the prospect of extra work about as often as newly discovered
asteroids threaten to collide with Earth.” Not only are the records short,3 but the
legal issues presented — whether proper procedures were followed and whether
sufficient evidence supports the findings — are relatively simple. The Courts of
Appeal had 21,901 contested filings in fiscal year 2004-2005. (Judicial Council of
Cal., Court Statistics Rep. (2006) p. 24, available on line at
www.courtinfo.ca.gov/references/documents/csr2006.pdf.) Thus, our Courts of
Appeal clearly possess the resources available to perform the negligible additional
amount of work required in these very few conservatorship cases. Finally, as
county counsel noted at oral argument, Wende appeals do not impose any burden

3
In the present case, the clerk’s transcript is 68 pages and the reporter’s
transcript is 174 pages.
7

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upon the county agency. Not surprisingly, the county did not file arguments in
opposition to providing Wende review in these cases until the Court of Appeal and
this court directed it to respond. It also is no surprise that in the 20 years since
Conservatorship of Besoyan (1986) 181 Cal.App.3d 34, held that Wende review
must be provided in LPS appeals, there has been no indication that our Courts of
Appeal are overburdened with those cases.
C.
With respect to the third due process factor — the risk of error if
independent review is not afforded — we have no means by which to determine
whether appointed appellate counsel generally have been conducting themselves
as active advocates or whether errors are being overlooked on appeal.4 We do not
know in how many cases independent review has been performed, but apparently
the number is quite small. We also do not know in how many of these cases
additional briefing has been ordered to address issues overlooked by counsel.
Moreover, even if supplemental briefing never has been ordered, the number of
LPS appeals in which a Wende brief has been filed does not provide a statistically
significant number of cases upon which to base any conclusions as to the overall
performance of appointed counsel or the likelihood that errors may be overlooked.
Not only does the paucity of LPS appeals preclude a determination of
whether counsel in practice have overlooked arguable issues, but that scarcity of
cases even prevents counsel from specializing in this area of law. In contrast,

4
The majority opinion characterizes the third factor as whether the absence
of the additional procedures “significantly increases the risk of erroneous
resolutions.” (Maj. opn., ante, at p. 6.) Neither Lassiter nor Sade C. requires a
“significant” increase in the risk. Rather, consistent with the concept of balancing
factors, the risk of error, whatever its weight in a particular context, is added to the
other factors that support the additional procedures, and together they are balanced
against the factors that disfavor additional procedures.
8

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counsel who handle appeals in criminal or juvenile cases have the opportunity to
develop expertise in those areas.5 In addition, the client in an LPS proceeding is
presumably less capable than a criminal defendant or a parent of monitoring and
assisting his or her counsel’s efforts in the case, and has no access to a law library
or even a jailhouse lawyer. Moreover, the evidence in an LPS case involves
expert testimony that often will be beyond the understanding of the conservatee, in
contrast to the evidence in a criminal case or a parental rights termination
proceeding, which typically will focus on actions and events with which the
litigants are familiar. As a result, LPS appeals are prosecuted by attorneys with
little experience in this area of the law on behalf of clients who are in no position
to monitor or assist counsel. The most knowledgeable resource for evaluating
these appeals resides within the Courts of Appeal — the justices and their
experienced staff who handle all LPS appeals, whether prosecuted by appointed or
retained counsel.6

5
According to statistics gathered by the Administrative Office of the Courts,
of the 21,901 contested matters filed in the Courts of Appeal in fiscal year 2004-
2005, 11,501, or approximately half, were criminal matters, and 3,317, or
approximately 15 percent, were juvenile matters. (Judicial Council of Cal., Court
Statistics Rep., supra, at p. 24, available at
www.courtinfo.ca.gov/references/documents/csr2006.pdf.)
6
According to the majority, “[a]ny concerns about counsel’s competence
would most directly be addressed by further refining the process for appointing
and training counsel. It would not be to ‘require an appellate court to abandon its
traditional role as an adjudicatory body and to enter the appellate arena as an
advocate.’ (Wende, supra, 25 Cal.3d at pp. 443-444 (dis. opn. of Clark, J.).) The
roles of court and counsel in our adversary system are carefully delimited. We
confuse them at our peril.” (Maj. opn., ante, at p. 11, fn. 5.)

This argument is a challenge to independent review in any context. We
might just as well ask, why not provide lawyers with better training and then
assume they always will act as active advocates and never overlook errors? Not
only is this approach inconsistent with Anders, Wende, and Sade C., it assumes
that enhanced training of appellate counsel appointed in these cases necessarily
will ensue. The majority also fails to explain what “peril” may follow from
9

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III.
The majority relies upon various statutory safeguards that apply to trial
court proceedings to support its conclusion that independent review would not
uncover errors. Procedural safeguards governing trial court proceedings were
relevant in Lassiter because the court was considering the likelihood that errors
would occur in the trial court absent the appointment of trial counsel for the
parent. (Lassiter, supra, 452 U.S. at pp. 28-29.) The issue in the present case is
not whether further procedures are required in the trial court; it is whether, as a
general matter, experience establishes that appointed appellate counsel will act as
active advocates on appeal and identify all arguable issues. The provision of
roughly equivalent procedural protections in the trial of criminal cases did not lead
the high court to conclude in Anders that independent review is unnecessary.
Extensive procedural safeguards also are provided in trial court proceedings
involving the termination of parental rights, including representation by counsel at
each stage of the proceedings, notice of all hearings and advisement of rights, the
requirement of clear and convincing evidence to justify removal of a child from
custody, six-month review hearings at which there is a rebuttable presumption that
the child should be returned to the parent, a right to seek modification of an order
at any time based on changed circumstances, and a right to appeal almost every
order. (See In re Marilyn H. (1993) 5 Cal.4th 295, 307-308; Welf. & Inst. Code,
§§ 366.21, 366.26, subd. (l), 388, 395.) These statutory safeguards played no part
in our analysis in Sade C. Instead, we relied upon the circumstance that numerous
cases involving the termination of parental rights had received independent

directing the Courts of Appeal to give these cases a second look. It is indisputable
that LPS appeals are rare, and this fact supports an inference that counsel in these
cases are not as experienced or competent in their appointed area of law as are
counsel who routinely handle appeals from criminal convictions and the
termination of parental rights.
10

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review, and that experience had established that, as a general matter, “appointed
appellate counsel faithfully conduct themselves as active advocates in behalf of
indigent parents.” (Sade C., supra, 13 Cal.4th at p. 990.) We have no such
experience or evidence in the context of LPS appeals.
Our review of criminal convictions and cases involving the termination of
parental rights, both of which arise from proceedings in which numerous
procedural safeguards are provided, does not suggest that procedural safeguards in
the trial court preclude the occurrence of errors requiring correction on appeal. On
the contrary, the numerous existing procedural requirements and restrictions
sometimes give rise to a greater potential for error. If the LPS Act is to fulfill its
purpose of protecting individuals from inappropriate confinement, it is imperative
that our appellate courts be able to ensure that its procedures are being followed.
Not only are the safeguards provided in the Act not failsafe, most of those
noted by the majority are irrelevant to a conservatee like Ben who already has
been involuntarily confined for a significant period. The “carefully calibrated
series of temporary detention periods for evaluation and treatment” (maj. opn.,
ante, at p. 9) occurred two years before the recommitment proceeding at issue in
this case, and provide no assurance that his recommitment was error-free or that
his appellate attorney provided active advocacy. At the point at which the
conservatee may be committed or recommitted for a year, he or she is entitled to
counsel, a unanimous jury verdict, and proof beyond a reasonable doubt ⎯ a
situation very similar to that facing a criminal defendant, who then will be
accorded Anders/Wende review on appeal.
The majority implicitly recognizes that statutory safeguards do not prevent
the commission of errors in the trial court. Instead, the majority concludes that
independent review is not required in these cases, because the trial court must
from time to time reexamine the propriety of the conservatorship and, the majority
11

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speculates, the trial court will correct any errors in the proceedings. According to
the majority, “[t]he LPS scheme is quite different because of the one-year limit on
commitments and the ability of the conservatee to return twice to the trial court for
reconsideration during that 12-month period. [¶] As a result, the trial court’s
ongoing supervision remains focused on the conservatee’s current needs and
condition, in a manner quite different from that followed in the criminal context.
Allowing continuing trial court attention ensures much more direct and
appropriate intervention. It strikes the Lassiter/Sade C. balance in a qualitatively
different way. It provides the conservatee with a more immediate avenue for
modification than that afforded by the more cumbersome appellate review. And, it
keeps the focus primarily on the conservatee’s current needs and progress, rather
than on a retrospective consideration of conditions that may no longer exist.”
(Maj. opn., ante, at p. 12.)
The majority’s view that resort to the trial court for relief is superior to
appellate review assumes that contentions actually are raised in the trial court
during the year of the conservatorship, that the trial court will not repeat former
errors, and that independent review is cumbersome. There is no basis for any of
these assumptions. We do not know whether appointed trial counsel routinely file
petitions for rehearing during the year of the conservatorship. Moreover, in
contrast to petitions for commitment or recommitment, which must be filed and
proved by the public guardian, petitions for rehearing must be brought by the
conservatee and will be denied unless the conservatee proves that he or she is not
gravely disabled. (Conservatorship of Everett M. (1990) 219 Cal.App.3d 1567,
1572.) Thus, while these proceedings provide an opportunity for the
conservatee — if the conservatee’s appointed counsel is inclined to pursue such a
proceeding — to attempt to prove that he or she is not gravely disabled, they are
not a promising means by which to establish that the trial court has erred in its
12

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handling of the case. It seems more likely that a trial court would apply a
consistent rule or approach in such cases and leave it to the appellate court to
correct the trial court if it is wrong. Therefore, appellate review of the propriety of
the initial proceedings appears to be a more efficient and effective means to
correct trial court error.
The majority’s characterization of conservatorship proceedings as not
retrospective ignores the statutory requirement that the trial court consider the
history of the mental illness (Welf. & Inst. Code, § 5008.2 [historical course of
person’s mental disorder shall be considered when that course has a direct bearing
upon the determination of whether the person is a danger or is gravely disabled]),
and is belied by the record in the present case.7 In contrast to a criminal
conviction and sentence, a commitment under the LPS Act may be extended
repeatedly, based in large part upon the same evidence and inferences that
supported the original judgment. (See Kansas v. Hendricks (1997) 521 U.S. 346,
369 [commitment as sexually violent predator is not for the purpose of punishment
and therefore does not violate Double Jeopardy Clause]; Conservatorship of Baber
(1984) 153 Cal.App.3d 542, 549-550 [doctrine of double jeopardy does not apply
in conservatorship proceedings].) Because these proceedings build upon past
adjudications, it is important that errors in earlier proceedings be corrected on
appeal so that erroneous prior factfinding or procedures are not repeated and do
not affect future adjudications. Affording independent review in no way will
diminish or interfere with the procedural safeguards that apply in the trial court.

7
The forensic psychiatrist who testified on behalf of the county in this case
stated it is important to rely upon the records and history of the individual’s mental
illness. The psychiatrist, who testified in 2003, relied upon records prepared by an
individual who did not become involved in Ben’s case until 2001 or 2002, but
whose records were the source of information concerning Ben’s behavior in 1998,
when his symptoms first appeared.
13

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In summary, none of the procedural safeguards provided in the trial court
ensures that counsel will act as an active advocate on appeal, that appellate
counsel will not overlook errors, or that errors will be corrected in the trial court
before the case reaches the appellate court. Just as the procedural safeguards
afforded in criminal trials and proceedings involving the termination of parental
rights provide no basis upon which to conclude there is no risk that errors will be
overlooked absent independent review, these safeguards do not afford a basis for
concluding there is no risk that errors will be overlooked in LPS cases. In light of
what is at stake ⎯ fundamental interests of the individual, the state’s strong
interest in ensuring an accurate result, the lack of any burden on the state in
affording independent review, and the lack of any reassurance that appellate
counsel consistently have acted as active advocates and do not overlook errors on
appeal (or that trial courts routinely correct errors as they preside over LPS
proceedings) ⎯ the analysis we set forth in Sade C., supra, 13 Cal.4th 952,
compels the conclusion that independent review is required in LPS appeals when
appointed appellate counsel is unable to identify an arguable issue on appeal.
IV.
I note that despite the majority’s conclusion that Anders/Wende review is
not warranted in these cases, the majority nonetheless requires counsel to file a
brief setting out the applicable facts and law and to provide a copy to the
conservatee, and affords the conservatee a right to file a supplemental brief. It is
unclear from the majority opinion what the Court of Appeal is expected to do after
it receives such a brief and any supplemental contentions. Presumably, the
majority contemplates that someone within the appellate court — evidently a
judicial staff attorney working under the direct guidance of a justice, or perhaps a
central staff attorney working under similar guidance — will review counsel’s
brief and any contentions submitted personally by the conservatee. Thereafter, to
14

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enable a panel of justices to determine whether it would be appropriate to retain
the appeal (maj. opn., ante, p. 14, fn. 7), the briefs and related information and
analysis must be conveyed to the justices. Accordingly, it appears that the
majority has decided to exercise this court’s supervisory powers to impose upon
the Courts of Appeal all of the Anders/Wende procedures except the requirement
that the appellate court review the record.
All that remains to be done in order to provide independent review is for
the Court of Appeal to confirm that proper procedures were followed and that the
order is supported by sufficient evidence. With counsel’s brief as a guide, and a
short record, it should be an easy task to make these determinations. In light of the
massive curtailment of liberty that may be imposed in an LPS case, this court
should exercise its supervisory powers to impose this negligible additional burden
upon the Courts of Appeal in order to ensure that the rights of these vulnerable
litigants are protected and that the Legislature’s objective of preventing the
inappropriate, indefinite, and involuntary commitment of mentally disordered
persons is achieved. (See Welf. & Inst. Code, § 5001.)
V.
The only remaining point to consider is whether the appeal should be
resolved by way of a written opinion in the absence of any arguable issue to be
decided. Contrary to the majority’s assertion that “[n]othing is served by requiring
a written opinion when the court does not actually decide any contested issues”
(maj. opn., ante, at p. 14), very real interests are met by rendering a brief opinion
in an LPS appeal. This court has recognized “the important due process interest in
recognizing the dignity and worth of the individual by treating him as an equal,
fully participating and responsible member of society. [Citations.] . . . Thus, even
in cases in which the decision-making procedure will not alter the outcome of
governmental action, due process may nevertheless require that certain procedural
15

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protections be granted the individual in order to protect important dignitary values,
or, in other words, ‘to ensure that the method of interaction itself is fair in terms of
what are perceived as minimum standards of political accountability — of modes
of interaction which express a collective judgment that human beings are
important in their own right, and that they must be treated with understanding,
respect, and even compassion.’ [Citation.]” (People v. Ramirez (1979) 25 Cal.3d
260, 267-268.)
In responding to the assertion of a mentally disordered individual that he or
she should be free of constraints under the LPS Act, our judicial system should
provide more than an order summarily dismissing his or her appeal as frivolous or
abandoned. Our Courts of Appeal should demonstrate appropriate recognition of
the interests of these individuals by undertaking the minimal effort required to
inform the conservatee that the court has reviewed the record and that specified
evidence in the record supports the trial court’s order.
Unlike an opinion in a criminal appeal, which serves various institutional
purposes even if no arguable issue is identified (see People v. Kelly (2006) 40
Cal.4th 106), the opinion in an LPS appeal in which no arguable issue is identified
primarily will serve the interest of responding to the conservatee in a dignified and
accountable manner. Therefore, a typical opinion in such a case will be very brief.
In some cases, however, further comment will be appropriate. An important
function of an appellate opinion in an LPS case is to communicate to the trial court
any concerns the Court of Appeal may have, even if those concerns do not rise to
the level of an arguable issue. For example, in this case Ben was provided with an
interpreter after he stated that he understood only half of what was being said and
that he needed an interpreter. Thereafter, when Ben’s counsel examined him,
counsel asked the judge to allow the examination to proceed without an
interpreter, stating that “[Ben’s] going to have to deal with the world, the outside
16

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world, outside of [the locked facility]. He’s going to have to speak English, he’s
going to have to be able to begin to communicate with people.” The examination
and cross-examination of Ben took place without an interpreter. Ben then stated
again that he understood only half of what the judge and counsel were saying, and
that he needed an interpreter. An interpreter was provided for the remainder of the
proceeding. Although these events may not give rise to an arguable issue in the
context of the present case, it would be appropriate for the appellate court to note
in its opinion that an individual need not be fluent in the English language in order
to avoid confinement in a mental institution under these circumstances, and that an
interpreter should be provided to Ben in future conservatorship proceedings.
VI.
The majority’s holding that independent review is not constitutionally
required in LPS appeals in no way prevents the Courts of Appeal from expending
the minimal effort required to provide these appeals with a second look and to
provide an opinion that briefly notes the court has reviewed the record and that
identifies the findings and evidence supporting the order. (See Lassiter, supra,
452 U.S. at p. 33 [“wise public policy . . . may require that higher standards be
adopted than those minimally tolerable under the Constitution”].) I encourage the
Courts of Appeal to expend the few hours required in these rare cases to ensure
that conservatees are not inappropriately confined, and to treat these individuals in
a considerate and compassionate manner rather than summarily informing them
that their appeals are frivolous and have been abandoned.
GEORGE, C. J.
WE CONCUR:

KENNARD, J.
MORENO, J.

17

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Conservatorship of Ben C.
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 119 Cal.App.4th 710
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S126664
Date Filed: February 5, 2007
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: Kevin A. Enright

__________________________________________________________________________________

Attorneys for Appellant:

Diane Nichols, under appointment by the Supreme Court, and Robert L. Visnick, under appointment by the
Court of Appeal, for Objector and Appellant.

Cheryl A. Geyerman for Appellate Defenders, Inc., as Amicus Curiae on behalf of Objector and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

John J. Sansome, County Counsel, Thomas E. Montgomery, Assistant County Counsel, Leonard W.
Pollard II and William A. Johnson, Jr., Deputy County Counsel, for Petitioner and Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Diane Nichols
555 West Beech Street, Suite 300
San Diego, CA 92101
(619) 696-0282

William A. Johnson, Jr.
Deputy County Counsel
1600 Pacific Highway, Room 355
San Diego, CA 92101-2469
(619) 531-4906

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Opinion Information

Date:	Docket Number:
Mon, 02/05/2007	S126664

Disposition
Feb 5 2007	Opinion: Affirmed

Dockets
Jul 26 2004	Petition for review filed   (in San Diego) by counsel for objector and appellant (Ben C.)
Jul 28 2004	Received Court of Appeal record   D042702 - one doghouse
Sep 15 2004	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Sep 15 2004	Letter sent to:   Counsel re Order granting review and Certification of Interested Entities or Persons.
Sep 23 2004	Certification of interested entities or persons filed   By appellant.
Oct 8 2004	Certification of interested entities or persons filed   By Respondent.
Oct 13 2004	Counsel appointment order filed   Upon request of appellant Ben C., for appointment of counsel, Appellate Defenders Inc., is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Nov 9 2004	Request for extension of time filed   by counsel for appellant requesting a 33-day extension to and including December 15, 2004 to file appellant's opening brief on the merits.
Nov 16 2004	Extension of time granted   To December 15, 2004 to file appellant's Opening Brief on the Merits.
Dec 15 2004	Opening brief on the merits filed   In San Diego by counsel for appellant {Ben C.,}.
Feb 7 2005	Filed:   letter from counsel for Respondent {San Diego County Health and Human Services Agency} dated February 2, 2005, to inform the court that respondent will not be filing an answer brief on the merits.
Mar 2 2005	Supplemental briefing ordered   Respondent San Diego County Health and Human Services Agency is requested to file, on or before March 16, 2005, an answer brief addressing the question whether the Court of Appeal is required to conduct an independent review of the record in an appeal from a conservatorship order when appointed counsel for the conservatee has filed a brief stating that counsel has found no reasonably meritorious issues. (See Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436; In re Sade C. (1996) 13 Cal.4th 952.) George, C.J., was absent and did not participate.
Mar 14 2005	Request for extension of time filed   by respondent San Diego County Health and Human Services Agency: requesting a 14-day extension to and including 3/30/05 to file respondent's answer brief on the merits.
Mar 17 2005	Extension of time granted   To March 30, 2005 to file Respondent's answer brief on the merits.
Mar 30 2005	Answer brief on the merits filed   In San Diego by counsel for Respondent.
Apr 18 2005	Reply brief filed (case fully briefed)   In San Diego by counsel for Objector and Appellant {Ben C.,}
Apr 6 2006	Received:   Letter: not available for oral agurment due to preplanned trip May 2-10, 2006 and an out of state conference June 5-23, 2006. Diane Nichols, Counsel for appellant.
Oct 3 2006	Case ordered on calendar   November 7, 2006 at 9:00 am in Sacramento
Oct 27 2006	Request for Extended Media coverage Filed   by Courtroom View Network.
Oct 30 2006	Filed letter from:   counsel for respondent San Deigo County Health and Human Services agency. Senior Deputy County Counsel William A. Johnson, Jr., will present oral argument on behalf of respondent in place of Leonard W. Pollard, II.
Nov 1 2006	Request for extended media coverage denied   Courtroom View Network's request to photograph, record or broadcast, filed October 27, 2006, is denied. (Cal. Rules of Court, rule 980, subs. (b)(2), (e)(3)(b).
Nov 7 2006	Cause argued and submitted
Feb 2 2007	Notice of forthcoming opinion posted
Feb 5 2007	Opinion filed: Judgment affirmed in full   The judgment of the Court of Appeal is affirmed. Majority opinion by: Corrigan, J. -----joined by Baxter, Werdergar, Chin, J.J. Dissenting opinion by George, C.J. -----joined by Kennard, Moreno, J.J.
Mar 12 2007	Remittitur issued (civil case)
Mar 19 2007	Received:   Receipt of th remittitur from CA4 Div. 1
Jul 25 2007	Compensation awarded counsel   Atty Nichols - Appellate Defenders, Inc

Briefs
Dec 15 2004	Opening brief on the merits filed
Mar 30 2005	Answer brief on the merits filed
Apr 18 2005	Reply brief filed (case fully briefed)

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