Opinion
NOT TO BE PUBLISHED
Superior Court County Super. Ct. No. F397075 of San Luis Obispo, Christopher G. Money, Judge
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Tannaz Kouhpainezhad, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Marcus Desouza appeals the denial of his petition contesting the determination that he qualifies as a mentally disordered offender (MDO). (Pen. Code, § 2962.) He contends there is no substantial evidence to support the finding that he had been in treatment for at least 90 days within the year prior to his parole release day. We affirm.
All statutory references are to this code unless otherwise stated.
FACTS
Desouza was convicted of assault with a deadly weapon or by force likely to cause great bodily harm. (§ 245, subd. (a)(1).) He was sentenced to four years in prison. On November 9, 2006, prior to Desouza's release on parole, the chief forensic psychiatrist at the California Department of Corrections and Rehabilitation certified that Desouza met all the criteria for hospitalization as an MDO. On December 11, 2006, the Board of Prison Terms (BPT) agreed that Desouza met the criteria. Desouza filed a petition for a hearing to challenge the MDO determination. (§ 2966, subd. (b).) The hearing was held on January 25, 2007.
Dr. Lev Iofis, a staff psychiatrist at Atascadero State Hospital (ASH), testified as an expert: He opined Desouza met all the qualifications of an MDO. He said Desouza had received at least 90 days treatment within a year prior to his BPT hearing. He based that statement on an MDO report prepared by Michele Reed, a psychologist with the Department of Mental Health. Iofis also said that Desouza admitted to him that he was on psychotropic medications for two years preceding the day he was admitted to ASH.
DISCUSSION
Desouza contends the evidence was insufficient to show that he received 90 days of treatment within a year prior to his parole.
Section 2962 provides that as a condition of parole a prisoner who suffers from a severe mental disorder and who meets certain other criteria is required to be treated by the Department of Mental Health. The only criteria being challenged here is "that the prisoner has been in treatment for the severe mental disorder for 90 days or more within the year prior to his or her parole release day." (Id. at subd. (d).)
In reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We discard evidence that does not support the judgment as having been rejected by the trier of fact for lack of sufficient verity. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) We have no power on appeal to reweigh the evidence or judge the credibility of witnesses. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We must affirm if we determine that any rational trier of fact could find the elements of the crime beyond a reasonable doubt. (Johnson, at p. 578.)
Desouza argues Iofis's testimony about the period of treatment is based on inadmissible hearsay; that is, an MDO report prepared by psychologist Reed. Desouza concedes that Iofis is an expert and an expert can base his opinion on hearsay. (See Evid. Code, § 801, subd. (b); Kelley v. Bailey (1961) 189 Cal.App.2d 728, 738 [physician may rely on reports and opinions of other physicians].) Desouza claims, however, that the question of the length of prior treatment is one of fact, not subject to expert opinion.
Assuming the question is not a proper subject for expert opinion, Desouza raised no hearsay objection. The failure to object waives the issue on appeal. (See Evid. Code, § 353, subd. (a); 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 371, pp. 459-460.)
Desouza points to the following colloquy as a hearsay objection in substance:
"[Defense counsel]: "[What] piece of paper did you rely on to form your opinion?
"[Dr. Iofis]: MDO evaluation report by Michele Reed, dated .
"[Defense counsel]: Doctor, I'm asking you to testify rather than to read from a report.
"[Prosecutor]: Objection, argumentative.
"The Court: He can testify to that. Go ahead."
But the only objection was by the prosecution. The objection was that defense counsel's statement was argumentative. There was no hearsay objection in form or in substance. Nor does the trial court's response indicate that a hearsay objection would have been futile. The question of hearsay was never before the court.
Desouza argues that the issue is not hearsay, but a lack of substantial evidence. He points out that an argument based on insufficiency of the evidence is never waived. (Citing People v. Rodriguez (2004) 122 Cal.App.4th 121, 129.) Desouza's argument misses the point. Evidence that would have been inadmissible, had a proper objection been made, can constitute substantial evidence in support of a judgment or order. (See Rupf v. Yan (2000) 85 Cal.App.4th 411, 430-431.)
In any event, Iofis's testimony based on a report by psychologist Reed is not the only evidence of the length of Desouza's prior treatment. Iofis also testified Desouza admitted to him that he was being treated with psychotropic medication for two years immediately prior to being sent to ASH. Desouza raised no hearsay objection to that testimony. Even if a hearsay objection had been raised, Desouza's statement would be admissible under the admission of a party exception to the hearsay rule. (Evid. Code, § 1220.) Desouza's admission alone constitutes substantial evidence.
The judgment (order) is affirmed.
We concur: YEGAN, J., PERREN, J.