Being a Current LPS Conservatee does not Make a Person Incompetent to Give Testimony.

Esparza v. Superior Ct., 4^th Dist., Division 2 (02/05/2026)

 

Esparza was charged with kidnapping his fiancée, L.S.  He subpoenaed L.S. to testify in his defense at his preliminary hearing.  The Public Guardian moved to quash the subpoena, saying L.S. was incompetent to testify under Evid. C. §701 because she had recently been placed under an LPS conservatorship due to being “gravely disabled.”

The trial court quashed the subpoena, finding L.S.’s current LPS conservatorship means she is incompetent to give testimony.  Esparza petitions for a writ of mandate.

The panel grants the petition and issues a mandate for the trial court to deny the motion to quash and to determine L.S.’s competence to testify under the criteria in Evid. C. §701.

Confronting an issue of first impression, the panel examines first the LPS statutes, which state that a person may not be presumed to be incompetent because they have been evaluated or treated for a mental health disorder.  An examination of other types of competence show that an LPS conservatorship does not constitute of finding of incompetence to stand trial (Jackson v. Superior Ct. (2017) 4 Cal.5^th 96), competence to waive the right to a jury trial (Conservatorship of C.O. (2021) C.A.5^th 894), or competence to withhold consent to medical treatment (Jackson v. Superior Ct. (2017) 4 Cal.5^th 96).   Just as the standards for LPS conservatorship differ from the competence standards for these other rights, the panel finds competence to testify also differs.

The Public Guardian has a backup argument that L.S.’s testimony at the preliminary hearing would be irrelevant, meaning it would not be relevant for determining whether L.S. was kidnapped by Esparza.  This argument is easily and quickly rejected by the panel, pointing out that L.S.'s consent (or not) is an element of the charged offense.  

The upshot is that an LPS conservatorship does not have any application to the determination of competence to give testimony.  The rules on competence to give testimony are to be applied to every potential witness.