Filed 12/17/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

Conservatorship of the Person of 

JOANNE R.

 B310906

 (Los Angeles County Super. 

 Ct. No. ZE043096)

RICHARD STUSSER, as 

Conservator, etc.,

Petitioner and Respondent,

v.

JOANNE R.,

Objector and Appellant.

APPEAL from an order of the Superior Court of Los 

Angeles County, Lisa R. Jaskol, Judge. Affirmed.

Rudy Kraft, under appointment by the Court of Appeal, for 

Objector and Appellant.

Ellen S. Finkelberg for Petitioner and Respondent.

__________________________
2

Joanne R. is a conservatee subject to a conservatorship 

under the Lanterman-Petris-Short (LPS) Act (Welf. & Inst. 

Code,1 § 5000 et seq.). Joanne contends the trial court provided

her an inadequate jury trial waiver advisement and improperly 

induced her to waive her right to a jury trial by stating she could 

either have a court trial that day or a jury trial nine months 

later. Although we are concerned by the delay in providing 

conservatees jury trials during the COVID-19 pandemic, we 

conclude there was no violation of Joanne’s statutory right to a 

jury trial.

However, we caution the superior court that a nine-month 

delay for a conservatee to have a jury trial where the 

conservatorship would otherwise end in a year, absent a health 

emergency, raises serious constitutional concerns in light of the 

significant liberty interests at stake. A conservatee’s right to a 

jury trial has little meaning if the conservatee can only exercise 

that right after spending nine months of a one-year term in a 

custodial setting. Indeed, in this case, because the pretrial 

hearing was delayed due to the pandemic, the jury trial would 

have taken place just one month before the conservatorship was 

scheduled to expire. This delay strays far from the statutory 

requirement in section 5350, subdivision (d)(2), that a “[c]ourt or 

jury trial shall commence within 10 days of the date of the 

demand,” unless the attorney for the proposed conservatee 

requests up to a 15-day continuance.

As we stated in Conservatorship of Jose B. (2020) 

50 Cal.App.5th 963, 967, “We are deeply troubled by the 

1 Further undesignated statutory references are to the 

Welfare and Institutions Code.
3

significant delay of over four months in holding a trial on [the]

petition, especially given the lack of any justification by the court 

for most of the delay. [The conservatee] contends trials on 

conservatorship petitions are routinely continued by the trial 

courts in violation of the 10-day requirement.” At oral argument 

in this case, counsel stated that even pre-pandemic, jury trials 

were consistently delayed well beyond the four-month period at 

issue in Jose B. We urge the superior court to dedicate the 

necessary additional resources to LPS jury trials so that 

conservatees may exercise their right to a jury trial in a timely 

manner. Failure to do so likely violates a conservatee’s 

constitutional right to due process.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Conservatorship

On November 9, 2018 the trial court found Joanne was 

unable to provide for her personal needs as a result of mental 

illness, she needed intensive psychiatric treatment, and she was 

on a 30-day hold under section 5270.15 based on a finding she 

was gravely disabled. The court appointed the Los Angeles 

County Office of the Public Guardian as the temporary 

conservator of Joanne’s person. On December 12, 2018 the court 

found Joanne was gravely disabled and appointed Richard 

Stusser2 as the conservator of Joanne’s person. On December 11, 

2 Stusser is a private conservator who agreed to serve as 

Joanne’s conservator at her family’s request.
4

2019 the trial court granted Stusser’s petition to be reappointed 

as Joanne’s conservator, with the order terminating on 

December 12, 2020.

B. Stusser’s Petition for Reappointment as Conservator of 

Joanne’s Person

On November 25, 2020 Stusser filed a petition for 

reappointment as Joanne’s conservator. On December 9 Stusser 

filed a declaration from Joanne’s treating psychiatrist, Dr. Dirk 

de Brito, who evaluated Joanne the prior day. Dr. de Brito stated 

Joanne was diagnosed with disordered schizophrenia and 

continued to have severe delusions, including that she was 

gainfully employed. Joanne was unable to provide for her food, 

clothing, or shelter, but she “refuses any idea that she needs 

help.” However, Joanne was currently taking prescribed 

medication in her residential care facility.

At a December 10, 2020 hearing, which Joanne attended by 

telephone, her attorney contested the conservatorship. Joanne’s 

attorney requested the appointment of Dr. Alete Arom to assess 

Joanne’s capacity and whether Joanne had a grave disability. In 

addition, Joanne’s attorney requested a “court trial in late 

January on a Thursday if possible.” The trial court appointed 

Dr. Arom “to report on grave disability and capacity to waive jury 

trial.” The court set a court trial for February 4, 2021, with the 

trial to be conducted by videoconference. The court found “good 

cause for the continuance based on the pandemic” and its effect 

on the court’s calendar.
5

At the February 4, 2021 videoconference hearing, with 

Joanne on the telephone,

3 the trial court informed Joanne, “[I]f 

you do not want to agree to have your conservator appointed for 

another year then you have a right to a trial. And there are two 

kinds of trials that you can have. One kind of trial is called a 

court trial. And with the court trial the judge hears the evidence 

and then the judge decides if the evidence proves beyond a 

reasonable doubt that you are gravely disabled. And, if the court 

makes that decision, then the conservatorship will continue for 

another year. [¶] The other kind of trial that you can have is a 

jury trial. With a jury trial 12 people from the community come 

to court and those 12 people are the jury. And a jury trial would 

involve those 12 people, the jury, hearing the evidence and then 

making a decision about whether the evidence proves beyond a 

reasonable doubt that you are gravely disabled. And the jury 

would have to decide that you’re gravely disabled unanimously, 

which means that all 12 jurors would have to agree. [¶] So if you 

would like to have a court trial with the judge making the 

decision we can do that today. If you would like to have a jury 

trial then we can do that as well, but we won’t be able to do it

today. We can reschedule and do that in November. [¶] Do you 

know which kind of trial you’d like to have?” Joanne answered, 

“Well, I would prefer a jury trial, but I don’t want to wait until 

November. I want to do it as soon as possible.”

The court then stated, “Okay. Well, then, you will need to 

make a decision about whether you want to have the court trial 

with the judge today or whether—.” Joanne interrupted and 

3 Joanne attended the hearing by telephone because she had 

difficulty appearing by videoconference.
6

inquired, “If I win, that’s fine. If I lose, when can I contest it 

again?” The court replied, “Well, you’d have to discuss that with 

your lawyer.” Joanne said, “Okay. I think that I want to go 

ahead today and do it.” The court inquired, “Now, do you 

understand that if you have the court trial today with the judge 

you will not be able to have a jury trial for another year? [¶] Do 

you understand that?” Joanne answered, “Yeah.”

C. The Court Trial and Reappointment of the Conservator

The court trial proceeded immediately after Joanne waived 

her right to a jury trial. Stusser called Dr. de Brito, who opined 

Joanne was gravely disabled. Joanne suffered from disorganized 

schizophrenia and had “very limited insight into her condition.” 

Further, she had delusions and could not formulate a specific 

plan for self-care, including for food, clothing, and shelter. Dr. de 

Brito stated further that if the conservatorship terminated, 

Joanne would not take her prescribed medication.

Joanne acknowledged in her testimony that she suffered 

from schizophrenia. She stated that if she were released from the 

conservatorship, she would continue to take her medication and 

meet regularly with a psychiatrist. She asserted she could take 

care of herself, including changing her own clothing, and she 

could manage her own money. But she admitted her brother,

Thomas Wolfe, was the conservator of her estate. Joanne claimed

she had monthly income of at least $5,000 from her estate,

including from her teacher’s pension, and another $5,000 per 

month from employment as a radio announcer at NBC Radio and 

Television Worldwide.

Joanne testified that at the time of the hearing, she was 

living in a senior residence facility that provided meals,
7

caregivers, and laundry services. Joanne had four options for 

where to live prospectively. NBC had offered her housing, meals, 

and a car and driver. Joanne’s cousin also had arranged for a 

home, and she invited Joanne to live in a room Joanne would 

share with a caregiver who would provide Joanne with meals and 

maid service. Joanne would not need a car, but she still had a 

license in good standing.

Wolfe testified for Stusser as a rebuttal witness. Wolfe had 

been appointed by the Orange County Superior Court as the 

conservator of Joanne’s estate. He stated Joanne received 

interest from certificates of deposit but “the only other income 

would be approximately $1,047 from [Joanne’s] teacher’s 

pension.” Joanne interjected, “I thought that I had more of an 

income so I didn’t mean to mislead the court in any way.” The 

court did not inquire further as to Joanne’s available funds. 

Wolfe opined Joanne did not have the ability to manage her funds 

to meet her basic needs.

Following arguments from counsel, the trial court found 

Stusser had carried his burden of proving beyond a reasonable 

doubt that Joanne had a grave disability. The court granted 

Stusser’s petition for reappointment as the conservator of 

Joanne’s person and found “the least restrictive placement is in

an assisted-living facility.”

Joanne timely appealed.

 

DISCUSSION

A. The LPS Act

“The LPS Act governs the involuntary detention, 

evaluation, and treatment of persons who, as a result of mental 
8

disorder, are dangerous or gravely disabled. (§ 5150 et seq.) The 

Act authorizes the superior court to appoint a conservator of the 

person for one who is determined to be gravely disabled (§ 5350 

et seq.), so that he or she may receive individualized treatment, 

supervision, and placement (§ 5350.1).” (Conservatorship of 

John L. (2010) 48 Cal.4th 131, 142; accord, Conservatorship of 

Jose B., supra, 50 Cal.App.5th at pp. 969-970.) “As defined by the 

Act, a person is ‘gravely disabled’ if, as a result of a mental 

disorder, the person ‘is unable to provide for his or her basic 

personal needs for food, clothing, or shelter.’ (§ 5008, subd. 

(h)(1)(A).)” (John L., at p. 142; accord, Jose B., at p. 970.) An 

LPS conservatorship automatically terminates after one year, 

and the conservator may seek reappointment by filing a petition. 

(§ 5361.) A proposed conservatee has a right to a jury trial upon 

demand at the establishment and annual renewal of a 

conservatorship. (Conservatorship of Ben C. (2007) 40 Cal.4th 

529, 541-542; Jose B., at p. 970; see § 5350, subd. (d).)

B. Jury Trial Waivers Under the LPS Act

“LPS commitment proceedings require the court to obtain a 

personal waiver of the right to a jury trial from the proposed 

conservatee.” (Conservatorship of Heather W. (2016)

245 Cal.App.4th 378, 383; see Prob. Code, § 1828, subd. (a)(6).)

4

Generally, with respect to civil commitments, the failure of a 

court to obtain a valid jury trial waiver where required by statute 

4 Probate Code section 1828, subdivision (a)(6), which is 

incorporated into the LPS Act by Welfare and Institutions Code 

section 5350, requires the trial court to inform the proposed 

conservatee of his or her right to a jury trial.
9

“denies the defendant his or her statutory right to a jury trial,” 

and is a “‘miscarriage of justice’ within the meaning of article VI, 

section 13 [of the California Constitution] [that] requires reversal 

without inquiry into the strength of the evidence in a particular 

case.” (People v. Blackburn (2015) 61 Cal.4th 1113, 1132-1133

[failure to obtain valid jury trial waiver from mentally disordered 

offender in civil commitment proceeding was reversible error]; 

accord, People v. Tran (2015) 61 Cal.4th 1160, 1169 [trial court’s 

acceptance of invalid jury trial waiver in commitment proceeding 

for defendant who pleaded not guilty by reason of insanity “is not 

susceptible to ordinary harmless error analysis and automatically 

requires reversal”]; see Heather W., at pp. 384-385 [trial court’s 

failure to advise LPS conservatee of her right to a jury trial was 

reversible error]; Conservatorship of Kevin A. (2015) 

240 Cal.App.4th 1241, 1253 [reversing conservatorship order 

where trial court erred in accepting counsel’s waiver of LPS 

conservatee’s right to jury trial over conservatee’s objection]; but 

see Conservatorship of C.O. (2021) 71 Cal.App.5th 894, 917-919

[trial court’s failure to personally advise proposed conservatee of 

right to a jury trial was statutory error, but error was harmless; 

and court’s acceptance of counsel’s waiver of jury trial right did 

not violate proposed conservatee’s rights].)

Stusser acknowledges that the case law governing criminal 

proceedings provides guidance for LPS civil commitment 

proceedings. In a criminal proceeding, “‘a defendant’s waiver of 

the right to jury trial may not be accepted by the court unless it is 

knowing and intelligent, that is, “‘“made with a full awareness 

both of the nature of the right being abandoned and the 

consequences of the decision to abandon it,”’” as well as voluntary 

“‘“in the sense that it was the product of a free and deliberate 
10

choice rather than intimidation, coercion, or deception.”’”’” 

(People v. Sivongxxay (2017) 3 Cal.5th 151, 166 (Sivongxxay); 

accord, People v. Cunningham (2015) 61 Cal.4th 609, 636-637.)5

“‘[W]hether or not there is an intelligent, competent, selfprotecting waiver of jury trial by an accused must depend upon 

the unique circumstances of each case.’” (Sivongxxay, supra, 

3 Cal.5th at p. 166.) In determining whether a defendant has 

provided a knowing and intelligent waiver, we “examine the 

totality of the circumstances.” (Id. at p. 167.) The Supreme 

Court in Sivongxxay provided “general guidance to help ensure 

that a defendant’s jury trial waiver is knowing and intelligent, 

and to facilitate the resolution of a challenge to a jury waiver on 

appeal.” (Id. at p. 169.) Although the guidance was “not 

intended to limit trial courts to a narrow or rigid colloquy” (id. at 

p. 170), the Supreme Court explained, “Going forward, we 

recommend that trial courts advise a defendant of the basic 

mechanics of a jury trial in a waiver colloquy, including but not 

necessarily limited to the facts that (1) a jury is made up of 

12 members of the community; (2) a defendant through his or her 

counsel may participate in jury selection; (3) all 12 jurors must 

unanimously agree in order to render a verdict; and (4) if a 

defendant waives the right to a jury trial, a judge alone will 

decide his or her guilt or innocence . . . . Ultimately, a court must 

consider the defendant’s individual circumstances and exercise 

judgment in deciding how best to ensure that a particular 

5 Because the parties agree the jury trial waiver standard in 

Sivongxxay applies here, we assume, but do not decide, that the 

standards for jury trial waivers applicable in criminal 

proceedings apply to LPS proceedings.
11

defendant who purports to waive a jury trial does so knowingly 

and intelligently.” (Id. at pp. 169-170.)

In Sivongxxay, the Supreme Court concluded the 

defendant’s waiver of his right to a jury trial was knowing and 

intelligent where the trial court had advised him “that he had a 

right to a jury trial, that a jury consists of 12 people from the 

community, that he would have the right to participate in the 

selection of the jury, and that waiver of the right to a jury would 

mean the judge alone would determine his guilt or innocence and 

any resulting punishment.” (Sivongxxay, supra, 3 Cal.5th at 

p. 167.) The court rejected the defendant’s argument that the 

jury waiver was deficient because the trial court failed to advise 

him that the jury must be impartial and render a unanimous 

verdict, explaining, “‘[T]he United States Supreme Court has 

never held that a defendant, when waiving the right to a jury, 

constitutionally is entitled to be canvassed by the trial court, let 

alone to require a specifically formulated canvass’ [citations], and 

we have never insisted that a jury waiver colloquy invariably 

must discuss juror impartiality, the unanimity requirement, or 

both for an ensuing waiver to be knowing and intelligent.” (Id. at 

p. 168, fn. omitted; accord, People v. Daniels (2017) 3 Cal.5th 961, 

992-993 (lead opn. of Cuéllar, J.) [“We continue to eschew any 

rigid rubric for trial courts to follow in order to decide whether to 

accept a defendant’s relinquishment of this right.”]; id. at p. 1018 

(conc. & dis. opn. of Corrigan, J.) [“We have consistently 

eschewed any rigid formula or particular form of words that a 

trial court must use to ensure that a jury trial waiver is knowing 

and intelligent.”].)
12

C. The Trial Court’s Jury Trial Advisement Was Not Deficient

Under the Totality of the Circumstances

Joanne contends the trial court’s jury waiver advisement 

was inadequate because the court did not inform her that she 

could participate in jury selection through her attorney. But as 

the Supreme Court held in People v. Weaver (2012) 53 Cal.4th 

1056, 1072-1074, the lack of an advisement that a defendant has 

the right to participate in jury selection does not automatically 

render a jury trial advisement invalid. Joanne argues Weaver is 

no longer good law in light of the Supreme Court’s later decision 

in Sivongxxay. To the contrary, the Sivongxxay court cited 

Weaver with approval in holding that in reviewing the totality of 

the circumstances, the absence of a specific advisement “is not 

necessarily determinative of whether a waiver meets 

constitutional standards.” (Sivongxxay, supra, 3 Cal.5th at 

p. 168.)

The trial court advised Joanne that a jury is comprised of 

12 people from the community; the jury would hear the evidence 

and then decide whether the evidence proves beyond a reasonable 

doubt she is gravely disabled; and the jury would need to make a 

unanimous decision, meaning that all 12 jurors would need to 

agree. The court contrasted this with a court trial in which the 

judge would hear the evidence and make the decision whether 

the evidence proves beyond a reasonable doubt she is gravely 

disabled. The court’s failure to advise that Joanne, through her 

counsel, had the right to participate in jury selection did not 

invalidate her jury waiver given the other advisements that 

informed Joanne of “the essence of the jury trial right.” (People v.

Daniels, supra, 3 Cal.5th at p. 1019 (conc. & dis. opn. of Corrigan, 
13

J.).) Under the totality of the circumstances, Joanne’s jury trial 

waiver was knowing and intelligent.

D. Joanne’s Jury Trial Waiver Was Voluntary

Joanne contends the trial court improperly induced her to 

waive her right to a jury trial by advising her that she could have 

an immediate court trial or wait until November (nine months 

later) for a jury trial. Although we are troubled by the delay in 

the availability of a jury trial, there was no improper 

inducement.

6

Joanne likens her case to People v. Collins (2001) 

26 Cal.4th 297, 312 (Collins), in which the Supreme Court 

concluded the trial court improperly induced the defendant to 

waive his right to a jury trial, rendering his jury trial waiver

involuntary. There, the trial court told the defendant “‘there 

might well be a benefit’” to the defendant from waiving his right 

to a jury trial because “‘[j]ust by having waived jury, that has 

some effect on the court . . . [b]y not taking up two weeks’ time to 

try the case.’” (Id. at p. 302, italics omitted.) The trial court 

added, “‘I’m not specifying that there’s any particular benefit, but 

that by waiving jury, you are getting some benefit, but I can’t tell 

you what that is because I don’t know yet.’” (Ibid., italics 

6 Joanne does not argue in her briefing on appeal that the 

delay in providing a jury trial violated her due process right to a 

timely trial. Her attorney belatedly raised a due process concern 

at oral argument, but we did not request supplemental briefing 

given that the delay was caused by the COVID-19 pandemic and 

the appellate record does not include information on prepandemic delays.
14

omitted.) The Supreme Court found the trial court’s offer of a 

reward to the defendant for refraining from exercising his 

constitutional right to a jury trial was improper because it 

“presented a ‘substantial danger of unintentional coercion,’”

thereby violating his right to due process. (Id. at p. 309.)

Unlike Collins, the trial court did not offer to reward 

Joanne for waiving her right to a jury trial, instead simply 

advising her of the reality of when she could have a court or jury 

trial. After advising Joanne that she could have a court trial that 

day but a jury trial could not be scheduled until November, the 

court inquired, “Do you know which kind of trial you’d like to 

have?” Joanne answered that she preferred to have a jury trial, 

but she did not want to wait until November, emphasizing, “I 

want to do it as soon as possible.” The court again reminded 

Joanne that she needed to decide which type of trial she wanted, 

and when Joanne interjected to ask when she could challenge her 

commitment again, the court urged her to talk with her lawyer. 

At this point, Joanne confirmed she wanted to proceed with a 

court trial that day. At no time did the trial court suggest Joanne 

would be rewarded if she elected to waive a jury trial—to the 

contrary, the court encouraged her to talk to her lawyer before 

making a decision. (See United States v. Leja (1st Cir. 2006) 

448 F.3d 86, 95 [district court did not coerce defendant to waive 

his right to a jury trial even though the court indicated “a jury 

might have difficulty with the complexity of the case,” where the 

court also stated “‘I’m not pushing anybody’”].)7

7 Joanne also argues the record does not contain an adequate 

explanation for why she could not receive a jury trial until 

November 2021. But in setting the February 4, 2021 trial date, 
15

Under the circumstances, the trial court’s statement that 

Joanne could receive a court trial that day or wait nine months 

for a jury trial provided Joanne with complete information to 

enable her to make a knowing, intelligent, and voluntary decision 

whether to waive her right to a jury trial. The fact she elected to 

proceed expeditiously with a court trial did not make her decision 

involuntary.

 

DISPOSITION

The order is affirmed.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.

the trial court found “good cause for the continuance based on the 

pandemic” and its effect on the court’s calendar.