Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC197573
ELIA, J.Raphael Hunter appeals from the court's April 23, 2009 order extending his involuntary commitment pursuant to Penal Code section 2972. (See Pen. Code, § 2960 et seq.) "The Mentally Disordered Offender Act (MDO Act), enacted in 1985, requires that offenders who have been convicted of violent crimes related to their mental disorders, and who continue to pose a danger to society, receive mental health treatment during and after the termination of their parole until their mental disorder can be kept in remission. (Pen. Code, § 2960 et seq.)" (In re Qawi (2004) 32 Cal.4th 1, 9.) Under the MDO Act, "the district attorney may petition to extend a commitment in one-year increments. ([Pen. Code,] § 2972, subd. (e).)" (People v. Allen (2007) 42 Cal.4th 91, 94.)
Appellant argues that the evidence was insufficient to support the court's commitment order because the sole government witness, Dr. O'Neall, was not a licensed psychologist under California law, the statutory licensing exemptions provided in Business and Professions Code sections 2909 and 2910 did not apply to Dr. O'Neall, and Dr. O'Neall was "statutorily required to be licensed as a psychologist" to "perform the activities he performed in regard to appellant." Appellant is not asserting on appeal that the trial court abused its discretion in qualifying Dr. O'Neall as an expert witness or that the trial erred in admitting his testimony.
All further statutory references are to the Business and Professions Code unless otherwise specified. Section 2909 applies to certain persons who are salaried employees of an organization, including, as specified, persons currently credentialed as a school psychologist or psychometrist, psychologists and psychological assistants working in higher education or governmental organizations which are not primarily involved in the provision of direct health or mental health services, and certain eligible persons employed by "nonprofit community agencies that receive a minimum of 25 percent of their financial support from any federal, state, county, or municipal governmental organizations for the purpose of training and providing services." Section 2910 states: "Nothing in this chapter shall be construed to restrict or prevent activities of a psychological nature on the part of persons who are salaried employees of... governmental agencies, provided: [¶] (a) Such employees are performing such psychological activities as part of the duties for which they were hired; [¶] (b) Such employees are performing those activities solely within the jurisdiction or confines of such organizations; [¶] (c) Such persons do not hold themselves out to the public by any title or description of activities incorporating the words 'psychology,' 'psychological,' 'psychologist,' 'psychometry,' 'psychometrics' or 'psychometrist'; [¶] (d) Such persons do not offer their services to the public for a fee, monetary or otherwise; [¶] (e) Such persons do not provide direct health and mental health services." There is no dispute on appeal that Dr. O'Neall provided direct mental health services.
We find the insufficiency of the evidence claim without merit and affirm the commitment order.
A. Background and Evidence
On November 20, 2008, the People filed a petition to extend appellant's commitment pursuant to Penal Code section 2972. It alleged that appellant suffered from a severe mental disorder, which was not in remission and could not be kept in remission without treatment, and that by reason of his severe mental disorder, appellant represented a substantial danger of physical harm to others.
At the April 23, 2009 hearing on the petition, the People called one witness, Dr. Andrew O'Neall. Dr. O'Neall testified that he was a staff psychologist at Napa State Hospital. His resume was admitted into evidence. He indicated that he had a doctoral degree in clinical psychology from the University of Indianapolis. As a graduate student, he had completed a supervised internship at the New Mexico State University Counseling Center. He completed his residency hours while working at Napa State Hospital and he had over 3000 hours of supervised experience at the hospital. He had been employed as a staff psychologist at the hospital since November 2007. At the time of the hearing, Dr. O'Neall was studying for his licensing exam.
Dr. O'Neall worked with a team of treating professionals and he was "the unit psychologist within program unit T-9 at Napa State Hospital." Dr. O'Neall had been appellant's treating psychologist since appellant had transferred to his unit on December 16, 2008. He saw appellant on a day-to-day basis. While he did not see appellant for individual therapy, he did see appellant for group therapy about three to four times per week and he also spoke with appellant informally on the unit and within treatment planning meetings. Dr. O'Neall was responsible for diagnostic assessment and he evaluated the risk that individuals in his unit posed to themselves and others. According to Dr. O'Neall, "[e]very psychologist at Napa State Hospital is supervised by a senior psychologist within the program."
The deputy district attorney asked the court to designate Dr. O'Neall as an expert in rendering psychological diagnosis and risk assessment. On cross-examination by appellant's counsel, Dr. O'Neall indicated that a doctorate in clinical psychology had been conferred on him in August 2007, he had completed his residency at Napa State Hospital, and he was studying for the professional licensing exam. Dr. O'Neall explained that once he passed the national licensing exam, he would be eligible to take the California state exam. Until he became licensed, he was under the supervision of a senior psychologist, who reviewed his cases. He also acknowledged that he was not yet board certified because board certification required an individual to be licensed for a certain period of time, which he believed was two years. He had never before been qualified as an expert in clinical psychology or risk assessment.
Appellant's counsel submitted the issue of expert qualification to the court without objection. The court found Dr. O'Neall to be qualified as an expert in clinical psychology and risk assessment for purposes of the proceedings.
Dr. O'Neall then proceeded to testify regarding appellant's arrest history, his history of assaultive and verbally abusive behavior, his mental health problems, his history of psychiatric hospitalization and treatment, and his current diagnosis of schizoaffective disorder and his past and present symptoms. Dr O'Neall believed that appellant did not understand the connection between his assaultive behavior and his mental illness and did not recognize the warning signs or symptoms.
Appellant's records showed the following. In 2001, appellant began to develop delusions about his roommate in a board and care facility and committed an assault with a deadly weapon. While incarcerated in prison, he committed several "115 violations" for fighting. While out on parole, appellant assaulted his aunt. He subsequently participated in a conditional release program. But appellant's conditional release into the community was revoked when, in 2005, appellant developed delusions regarding his roommate whom he viewed as threatening; appellant was returned to inpatient hospital treatment because of concerns about the assault risk posed by appellant. In a March 2009 incident, appellant chased another patient down the hospital's hallway and assaulted him. That individual apparently had stolen from appellant and appellant, who had become agitated, had "chose[n] to handle the situation by chasing [him] down... and initiating an assault." According to Dr. O'Neall, appellant "consistently ha[d] conflicts with staff, peers, and it appears with his family" and these conflicts had "led to numerous verbal and physical altercations...."
At the time of the hearing, appellant was regularly taking a number of prescribed medications, including antipsychotics and medications to stabilize mood. He also had prescribed medications for agitation and insomnia, which he could request and which he regularly required on average of once a week. Dr. O'Neall believed that appellant's mental disorder could not be kept in remission without treatment and he "currently requires medications to control his behavior...." In Dr. O'Neall's opinion, the medications were very important because, without them, it was "likely that [appellant's] mood would become unstable," "[h]e would become easily agitated," and he "might demonstrate more psychotic symptoms...." Although appellant generally took his prescribed medications, he was not always compliant and at times refused to take his medications when he was angry at staff. In Dr. O'Neall's opinion, the medications helped control appellant's dangerous symptoms. If appellant did not take his medication, he was more likely to have increased difficulty controlling his anger. Dr. O'Neall was concerned about appellant's ability to avoid dangerous situations. It was his opinion that, if appellant's mental disorder was left untreated, appellant represented a substantial danger of physical harm to others.
Dr. O'Neall was aware that appellant had been transferred from Atascadero to Napa in early April 2008 and he acknowledged that appellant had not physically assaulted staff while at Napa State Hospital. Dr. O'Neall also acknowledged that the majority of the incidents that he had observed involved verbal aggression and not physical aggression by appellant. At some point, appellant had been granted a "level two card," which provides certain privileges for maintaining consistently safe behavior on the unit, but appellant had lost his "level two card" approximately two weeks to a month before the hearing.
Appellant testified on his own behalf.
The court found, beyond a reasonable doubt, that appellant had a severe mental disorder that was not in remission and could not be kept in remission without treatment and, due to this severe mental disorder, appellant posed a substantial danger of physical harm to others.
B. Sufficiency of the Evidence
The standard for reviewing the sufficiency of evidence is well settled. (People v. Snow (2003) 30 Cal.4th 43, 66.) "On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320, 99 S.Ct. 2781, 61 L.Ed.2d 560; People v. Johnson (1980) 26 Cal.3d 557, 578....)" (Ibid.) "Once such evidence is found, the substantial evidence test is satisfied. (See People v. Johnson (1980) 26 Cal.3d 557, 578....)... [T]he testimony of a single witness that satisfies the standard is sufficient to uphold the finding." (People v. Barnwell (2007) 41 Cal.4th 1038, 1052; see Evid. Code, § 411.) " 'The standard is deferential: "When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination...." ' [Citations.]" (People v. Semaan (2007) 42 Cal.4th 79, 88.)
Although appellant couches his appellate argument in terms of insufficiency of the evidence, appellant is not actually contending that the evidence, if fully considered, did not support the court's recommitment order. Accordingly, that particular argument is waived on appeal and we do not address it. (See People v. Stanley (1995) 10 Cal.4th 764, 793; see also Cal. Rules of Court, rule 8.204(a)(1)(B).)
Appellant's specific contention is, in essence, that Dr. O'Neall's testimony should be disregarded in assessing the sufficiency of the evidence because he was unlawfully practicing psychology without a license and, without that expert testimony, the evidence is insufficient. Section 2903 states in part: "No person may engage in the practice of psychology, or represent himself or herself to be a psychologist, without a license granted under this chapter, except as otherwise provided in this chapter." Respondent replies that "there was no showing that [Dr. O'Neall] was not acting within the scope of practice permitted by Business and Professions Code section 2911," which allows supervised professional activities by graduate students and interns in psychology and postdoctoral trainees as specifically provided. Appellant asserts that Dr. O'Neall was not "designated [by the title] 'psychological intern,' 'psychological trainee,' 'postdoctoral intern,' or another title clearly indicating the training status appropriate to his or her level of training," as required by section 2911.
Section 2903 defines "practice of psychology" as "rendering or offering to render for a fee... any psychological service." In this context, " 'fee' means any charge, monetary or otherwise, whether paid directly or paid on a prepaid or capitation basis by a third party, or a charge assessed by a facility, for services rendered." (Ibid.)
Section 2911 provides: "Nothing in this chapter shall be construed as restricting the activities and services of a graduate student or psychological intern in psychology pursuing a course of study leading to a graduate degree in psychology at an accredited or approved college or university and working in a training program, or a postdoctoral trainee working in a postdoctoral placement overseen by the American Psychological Association (APA), the Association of Psychology Postdoctoral and Internship Centers (APPIC), or the California Psychology Internship Council (CAPIC), provided that these activities and services constitute a part of his or her supervised course of study and that those persons are designated by the title 'psychological intern,' 'psychological trainee,' 'postdoctoral intern,' or another title clearly indicating the training status appropriate to his or her level of training. The aforementioned terms shall be reserved for persons enrolled in the doctoral program leading to one of the degrees listed in subdivision (b) of Section 2914 at an accredited or approved college or university or in a formal postdoctoral internship overseen by APA, APPIC, or CAPIC."
While it is true that Dr. O'Neall referred to himself at trial as a unit or staff psychologist at Napa State Hospital, the record does not show that the witness's official title was an issue below. A "party should not be required to defend for the first time on appeal against a new theory that 'contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial.' [Citation.]" (Ward v. Taggart (1959) 51 Cal.2d 736, 742.) In any case, appellant has stated no principle of law that now requires us, in reviewing the sufficiency of the evidence, to ignore all of Dr. O'Neall's testimony on the ground he was unlicensed.
" 'Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]' [Citations.]" (People v. Thornton (1974) 11 Cal.3d 738, 754.) "[T]he direct testimony of a single witness is sufficient to support a finding unless the testimony is physically impossible or its falsity is apparent 'without resorting to inferences or deductions.' [Citations.]" (People v. Cudjo (1993) 6 Cal.4th 585, 608-609.)
In re Catherine S. (1991) 230 Cal.App.3d 1253, the only case cited by appellant in support of his contention that the court's finding must be reversed on the ground that Dr. O'Neall was unlicensed, is distinguishable. The appellate court in Catherine S. held that "a juvenile dependency order denying reunification services based on the father's status as a pedophile was unsupported by the statutorily required testimony of two experts, since one of the testifying psychologists was unlicensed." (Id. at pp. 1254-1255.) Its holding was based upon statute, however, not upon the applicable standard of review for evidentiary sufficiency.
The appellate court in Catherine S. observed: "Reunification services need not be provided when the court finds, by clear and convincing evidence, that 'the parent is suffering from a mental disability that is described in [former] Section 232 of the Civil Code and that renders him or her incapable of utilizing those services.' (Welf. & Inst. Code, § 361.5, subd. (b)(2).) Subdivision (a)(6) of [former] Civil Code section 232 defines 'mental disability' as 'any mental incapacity or disorder which renders the parent or parents unable to adequately care for and control the child.' This subdivision of [former] section 232 require[d] evidence from any two experts-either a physician, a surgeon, or a 'licensed psychologist'-to support a finding of mental disability." (Id. at p. 1255; cf. Welf. & Inst. Code, § 361.5, subd. (c) [denial of reunification services on ground of mental disability now requires "competent evidence from mental health professionals" establishing that, "even with the provision of services, the parent is unlikely to be capable of adequately caring for the child" within the specified time frame].) The appellate court in Catherine S. concluded that "the denial of reunification services was unsupported by the statutorily required evidence of pedophilia" because one of the two testifying psychologists was not licensed. (Id. at p. 1257.) No analogous statute applies in this case.
Appellant's arguments actually relate to the foundational issue of whether Dr. O'Neall was qualified to testify as an expert witness. Evidence Code section 720, subdivision (a), states: "A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert."
"The trial court's determination of whether a witness qualifies as an expert is a matter of discretion and will not be disturbed absent a showing of manifest abuse. [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 321-322.) "Error regarding a witness's qualifications as an expert will be found only if the evidence shows that the witness ' " 'clearly lacks qualification as an expert.' " ' (People v. Chavez (1985) 39 Cal.3d 823, 828....)" (People v. Farnam (2002) 28 Cal.4th 107, 162.) The degree of an expert's expertise goes to the weight of the expert's testimony, not its admissibility. (Ibid.; cf. People v. Catlin (2001) 26 Cal.4th 81, 131 ["Qualifications other than a license to practice medicine may serve to qualify a witness to give a medical opinion"]; People v. Brown (2001) 96 Cal.App.4th Supp. 1 [trial court acted within its discretion in determining witness could testify as expert on domestic violence even though she was not a licensed clinical psychologist and had failed the written licensing exam because she was a licensed marriage and family counselor and had extensive experience in that field].) By failing to raise it below, defendant forfeited any contention that Dr. O'Neall's testimony should have been excluded because he could not be deemed an expert without a license. (Evid. Code, § 353; see People v. Bolin, supra, 18 Cal.4th 297, 321).
Appellant asserts that any failure of his counsel to object to Dr. O'Neall's lack of a license should not preclude appellate review of the sufficiency of the evidence. It does not. (See Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17 [contention that a judgment is not supported by substantial evidence is an obvious exception to the rule that points not urged in the trial court cannot be raised on appeal].) Nevertheless, " ' "[i]t is settled law that incompetent testimony, such as hearsay or conclusion, if received without objection takes on the attributes of competent proof when considered upon the question of sufficiency of the evidence to support a finding." ' [Citations.]" (People v. Panah (2005) 35 Cal.4th 395, 476.) "[W]hen inadmissible hearsay or opinion testimony is admitted without objection, [Evidence Code section 140's definition of "evidence"] makes it clear that it constitutes evidence that may be considered by the trier of fact." (Cal. Law Revision Com. com., 29 B, Pt. 1 West's Ann. Evid. Code (1995 ed.) foll. § 140, p. 15.) "[A] reviewing court must consider all of the evidence admitted at trial when considering a Jackson [insufficiency of the evidence] claim." (McDaniel v. Brown (2010) ___ U.S. ___, ___ [2010 WL 58361], per curiam [rejecting contention that testimony of state's DNA expert should be excluded from sufficiency of evidence analysis because it was unreliable, and that a due process violation occurred because the remaining evidence was insufficient to convict].) Dr. O'Neall's lack of a license at the time he was treating appellant or at the time of the hearing did not prevent his testimony from constituting substantial evidence supporting the court's finding.
Disposition
The April 23, 2009 order extending commitment pursuant to section 2972 is affirmed.
WE CONCUR: RUSHING, P. J. PREMO, J.