Opinion
A164816
09-11-2023
Conservatorship of the Person of E.F. v. E.F., Objector and Appellant. PUBLIC GUARDIAN OF CONTRA COSTA COUNTY, Petitioner and Respondent,
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. P05-01639)
STREETER, J.
E.F. appeals from the Contra Costa County Superior Court's order reappointing the Public Guardian of Contra Costa County (Public Guardian) as his conservator for one year under the Lanterman-Petris-Short (LPS) Act (Welf. &Inst. Code, § 5350 et seq.). E.F., hospitalized for two decades, was found to be gravely disabled after the sole witness at trial, the Public Guardian's expert in psychiatry and grave disability, testified that E.F.'s schizophrenia rendered him unable to care for his basic needs.
Undesignated statutory references are to the Welfare and Institutions Code.
E.F. argues that the trial court prejudicially erred by (1) admitting the psychiatric records evidence under the business records exception to the hearsay rule, contained in Evidence Code 1271, and (2) allowing the Public Guardian's expert to usurp the jury's role by testifying that E.F. was gravely disabled, which was within the common experience of the jury to determine without expert assistance. The Public Guardian disagrees with the merits of these arguments, and also contends we should dismiss this appeal as moot. We reject the Public Guardian's mootness argument. We conclude the trial court did not prejudicially err in allowing in the psychiatric records evidence under the business records exception to the hearsay rule and that E.F. has forfeited his "grave disability" claim which, regardless, lacks merit and does not constitute prejudicial error either. We affirm.
I. BACKGROUND
In December 2021, the Public Guardian filed a petition seeking reappointment as E.F.'s LPS conservator, alleging that E.F., as a result of a mental disorder, was unable to provide for his basic needs for food, clothing, and shelter and, therefore, was gravely disabled.
E.F., through his appointed trial counsel, objected to the reappointment and a jury trial followed in March 2022.
The Public Guardian sought to have Exhibit 2 (Exhibit 2) admitted into evidence under Evidence Code section 1271, the business records exception to the hearsay rule. Exhibit 2 consists of 34 pages of psychiatric records regarding E.F. from 2021 and early 2022. The records are accompanied by an affidavit from a Department of State Hospitals-Napa (Napa State Hospital) custodian of records, who certified the records and stated they "were prepared by the personnel of the hospital in the ordinary course of hospital business at or near the time of the act, condition or event."
E.F. moved in limine to redact large portions of Exhibit 2, principally on the grounds that (1) the portions, rather than describing acts, conditions, or events as allowed under the business records exception, describe "facility goals, recommendations, or conclusions," E.F. relying on People v. Reyes (1974) 12 Cal.3d 486, 503, or (2) the portions relate "events not directly observed by the author" and, therefore, their admission into evidence would violate People v. Sanchez (2016) 63 Cal.4th 665, 682-683 (Sanchez) because they constituted case-specific hearsay. E.F. argued that even under the business records exception, each layer of hearsay in the records had to qualify for its own exception to the hearsay rule.
The court held a hearing on E.F.'s in limine motion and ordered certain redactions be made in Exhibit 2. As redacted, Exhibit 2 was admitted into evidence at trial.
Only one witness testified at trial, Dr. Michael Levin, a psychiatrist employed by Contra Costa County since 2013 to conduct grave disability evaluations and testify in court on behalf of the Public Guardian. The trial court designated him as an expert in psychiatry and grave disability over E.F.'s objection to his designation as an expert in the latter category. Dr. Levin proceeded to testify, among other things, about his recent interview with E.F., certain psychiatric records that were shown to him, and his opinion of E.F.'s ability to care for himself.
Dr. Levin testified that E.F. suffered from schizophrenia. He opined that E.F. did not have insight into his illness and had limited insight as to why he was prescribed medication or should continue taking it; that it was "highly doubtful" that he would continue taking medication if he were released, which would cause him to become more symptomatic; and that E.F., after being in a facility for 20 years, had an "ongoing major mental illness." E.F. also had no specific plans for where he would live if he were discharged, how he would get there, and who would help him. Dr. Levin thought E.F. was incapable of making reasonable plans for shelter and, although he might be able to get some food and clothing, had "no real plans." Based on his interview of E.F., review of his psychiatric records and history, and discussions with E.F.'s treating psychiatrist, Dr. Levin was of the professional opinion that E.F. was gravely disabled.
The jury found E.F. was gravely disabled due to a mental disorder. The trial court ordered that E.F.'s conservator was reappointed for another year, commencing January 12, 2022.
E.F. filed a timely notice of appeal from the court's order.
II. DISCUSSION
A. Mootness
This appeal is from an order of conservatorship that expired in January 2023. Accordingly, the Public Guardian asks us to dismiss it as moot. (See MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214 ["[a] case is moot when the decision of the reviewing court 'can have no practical impact or provide the parties effectual relief' "].) E.F. argues we should not dismiss his appeal for multiple reasons, including because the issues he raises are capable of repetition.
LPS appeals often become moot due to the fact that LPS conservatorships last only a year. Mootness arguments similar to the Public Guardian's here are often rejected, including because issues capable of recurring would otherwise escape review. (See Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1011, fn. 5; Conservatorship of George H. (2008) 169 Cal.App.4th 157, 161, fn. 2.) Such is the case here. We exercise our discretion and proceed to the merits.
B. The Court's Admission of Evidence Under the Business Records Exception to the Hearsay Rule
E.F. first argues the trial court committed prejudicial error when it admitted into evidence, over his objection, large portions of Exhibit 2 under the business records exception contained in Evidence Code section 1271, and allowed Dr. Levin to testify about the content of some of these records.
The Public Guardian opposes the merits of E.F.'s argument, but first contends E.F. has forfeited this claim for two reasons: (1) forfeiture should be applied to the extent that E.F. raises objections to Exhibit 2 that he did not raise below, and (2) E.F. did not submit the objections he made to Exhibit 2, contained in Court Exhibit 1, with his opening brief.
Both arguments lack merit. The Public Guardian fails to identify any of E.F.'s appellate challenges that were not made below in his motion in limine and we have not found any relevant to our discussion below. Also, by letter dated April 21, 2023, E.F., through his appellate counsel, requested under California Rules of Court, rule 8.224(a) that the superior court provide Court Exhibit 1 and Exhibit 2 to this court. We have received the exhibits and have reviewed them. There is no basis for forfeiture of E.F.'s hearsay claim.
1. Legal Standards
A proceeding to declare an LPS conservatorship requires that the government bear the burden of proof of grave disability beyond a reasonable doubt, and that a jury reach a unanimous verdict. (Conservatorship of John L. (2010) 48 Cal.4th 131, 143.) A person is "gravely disabled" if the person, "as a result of a mental health disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter." (§ 5008, subd. (h)(1)(A); Conservatorship of K.P. (2021) 11 Cal.5th 695, 706.) When applying the definition of mental disorder under the LPS Act, "the historical course of the person's mental disorder, as determined by available relevant information about the course of the person's mental disorder, shall be considered when it has a direct bearing on the determination of whether the person is . . . gravely disabled, as a result of a mental disorder. The historical course shall include, but is not limited to, . . . the patient's medical records as presented to the court, including psychiatric records ...." (§ 5008.2, subd. (a).) Hence, a jury is required to consider" 'the historical course'" of a patient's mental disorder based on" 'medical records as presented to the court, including psychiatric records.'" (Conservatorship of S.A. (2018) 25 Cal.App.5th 438, 444 (S.A.).)
The trial court admitted Exhibit 2 under Evidence Code 1271, the business records exception to the hearsay rule. Evidence Code section 1271 provides, "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:
"(a) The writing was made in the regular course of a business;
"(b) The writing was made at or near the time of the act, condition, or event;
"(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and
"(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
The object of the business records exception "is to eliminate the calling of each witness involved in preparation of the record and substitute the record of the transaction instead." (County of Sonoma v. Grant W. (1986) 187 Cal.App.3d 1439, 1451.) "The key to establishing the admissibility of a document made in the regular course of business is proof that the person who wrote the information or provided it had knowledge of the facts from personal observation. (1 Witkin, Cal. Evidence [(4th ed. 2000)] Hearsay, § 237, p. 954; People v. Hovarter [(2008)] 44 Cal.4th [983,] 1012, quoting 2 McCormick on Evidence (6th ed. 2006) § 290, p. 314 ['So long as "the person who originally feeds the information into the process [has] firsthand knowledge," the evidence can . . . qualify as a business record.']; People v. Fowzer (1954) 127 Cal.App.2d 742, 747, quoting Loper v. Morrison [(1944)] 23 Cal.2d [600,] 609 [' "It is not necessary that the person making the entry [on a business record] have personal knowledge of the transaction...." '].)" (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 322.)
E.F. acknowledged below that the business records at issue here could be authenticated by affidavit establishing these requirements have been met under Evidence Code section 1561. (See S.A., supra, 25 Cal.App.5th at p. 447 [the requirements of Evidence Code section 1271 "may be satisfied by affidavit," citing section 1561].) A trial court has broad discretion to determine whether sufficient foundation has been made regarding the identity and mode of preparation of documents for purposes of the business records exception. (Jazayeri v. Mao, supra, 174 Cal.App.4th at p. 319.)
Evidence Code section 1561 is one of the statutory provisions governing subpoenaed documents. (See, e.g., Cooley v. Superior Court (2006) 140 Cal.App.4th 1039, 1044-1045.) Its subdivision (a) provides for authentication by an affidavit from a custodian of records that states in substance: "(1) The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records. "(2) The copy is a true copy of all the records described in the subpoena duces tecum or search warrant, or pursuant to subdivision (e) of Section 1560, the records were delivered to the attorney, the attorney's representative, or deposition officer for copying at the custodian's or witness' place of business, as the case may be. "(3) The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event. "(4) The identity of the records. "(5) A description of the mode of preparation of the records."
"[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the hearsay nature of the evidence in question [citations]." (People v. Waidla (2000) 22 Cal.4th 690, 725.) This same standard of review applies to the trial court's determinations about the admissibility of expert testimony. (People v. Rowland (1992) 4 Cal.4th 238, 266.)
2. E.F.'s Arguments
E.F. argues the trial court prejudicially erred by admitting large portions of Exhibit 2 that contain inadmissible hearsay, primarily because the court allowed in evidence contained in Exhibit 2 that (1) constituted opinions and conclusions, such as diagnoses of E.F.'s condition, which are inadmissible under the business records exception; and (2) included multiple levels of hearsay, such as accounts of events reported by staff to the writer of the psychiatric record, each level of which the Public Guardian was required to, but did not, establish a hearsay exception under California case law, including Sanchez. E.F. also briefly raises a third argument, that the trial court should not have found any of the records were reliable because the custodian of records declaration included in Exhibit 2 did not provide sufficient information for such a finding, failing for example to establish the procedures used to create the documents or that the writings were made close in time to the act, condition, or events observed.
The Sanchez court gave as one example of a hearsay matter to consider the following: "Documents may . . . contain multiple levels of hearsay. An emergency room report, for example, may record the observations made by the writer, along with statements made by the patient. If offered for its truth, the report itself is a hearsay statement made by the person who wrote it. Statements of others, related by the report writer, are a second level of hearsay. Multiple hearsay may not be admitted unless there is an exception for each level. (People v. Riccardi (2012) 54 Cal.4th 758, 831 (Riccardi).) For example, in the case of the emergency room document, the report itself may be a business record (Evid. Code, § 1270 et seq.), while the patient's statement may qualify as a statement of the patient's existing mental or physical state (Evid. Code, § 1250, subd. (a))." (Sanchez, supra, 63 Cal.4th at pp. 674-675.)
E.F.'s two primary arguments are of no import to our analysis because, as we will shortly discuss, assuming for argument's sake that E.F. is correct about them, any error by the trial court in admitting Exhibit 2 was harmless in light of the plainly admissible evidence of E.F.'s grave disability, that being Dr. Levin's testimony and portions of two psychiatric records that are contained in Exhibit 2.
As for E.F.'s third argument-that the declaration was insufficient to establish such matters as the procedures used to create the documents or that the writings were made close in time to the act, condition, or events described, E.F. is unpersuasive for two reasons. First, as the Public Guardian points out, E.F. has forfeited this claim by failing to challenge the sufficiency of the declaration in the trial court.
Second, E.F. (and the Public Guardian for that matter) fails to address the presumption established by the affidavit submitted by the Napa State Hospital custodian of records here, which stated that the psychiatric records contained in Exhibit 2 "were prepared by the personnel of the hospital in the ordinary course of hospital business at or near the time of the act, condition or event." As we have discussed, E.F. acknowledged below that Exhibit 2 was subject to the provisions of Evidence Code section 1561. Evidence Code section 1562 states in relevant part, "If the original records would be admissible in evidence if the custodian or other qualified witness had been present and testified to the matters stated in the affidavit, and if the requirements of Section 1271 have been met, the copy of the records is admissible in evidence. The affidavit is admissible as evidence of the matters stated therein pursuant to Section 1561 and the matters so stated are presumed true.... The presumption established by this section is a presumption affecting the burden of producing evidence." (Italics added.) The affidavit submitted here, having satisfied the requirements of section 1271, put the burden on E.F. to produce evidence overcoming the presumption of truth created by the affidavit. With regard to the two psychiatric records we discuss in finding harmless error in the next section, E.F. did not overcome this presumption below. Therefore, his third argument regarding these documents is unpersuasive.
E.F. contends that the trial court agreed that records such as the two we rely on in the next section-which are quarterly psychology progress notes-were not made close in time to the acts, conditions, or events mentioned. This is incorrect. The court merely noted that such records did not appear to be "immediately contemporaneous," and did not rule this was a reason to exclude those records.
3. Any Error Was Harmless
E.F. argues we should review the court's hearsay error for prejudice under the state standard, determining whether there is a reasonable probability that he would have obtained a more favorable result if the trial court had excluded what he contends was inadmissible hearsay. We agree. (Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1286 &fn. 9, citing People v. Watson (1956) 46 Cal.2d 818, 836; Sanchez, supra, 63 Cal.4th at p. 698 ["improper admission of hearsay may constitute state law statutory error"].) We conclude any error was harmless under this standard. Dr. Levin's testimony, as well as the plainly admissible portions of two of the psychiatric records considered at trial, provide ample evidence of E.F.'s grave disability.
Dr. Levin was an experienced psychiatrist, having evaluated patients for grave disability for the county since 2013 and, prior to that time, having worked 38 years in private practice. He had qualified as an expert psychiatrist in California courts in excess of 150 times since 2013, and had evaluated a patient for grave disability "significantly over" 200 times. His testimony alone provides compelling evidence of E.F.'s grave disability.
According to Dr. Levin, E.F. suffered from schizophrenia, either chronic undifferentiated or paranoid. Two days before he testified, he interviewed E.F. in person for 25 to 35 minutes. He noticed different symptoms of schizophrenia in his interview and his review of E.F.'s psychiatric records,including delusions, denial of having an illness, loose associations, a change in emotional tone, irritability, reactivity, and paranoia. He also reviewed conservator notes, which were "useful for history," and talked with E.F.'s treating psychiatrist for about fifteen minutes.
It is uncontested that Dr. Levin could rely on hearsay, including hearsay contained in E.F.'s psychiatric records, in forming his opinions, and could tell the jury in general terms that he did so. (See People v. Veamatahau (2020) 9 Cal.5th 16, 25-26, quoting Sanchez, supra, 63 Cal.4th at p. 685.)
Dr. Levin described schizophrenia as a "major mental illness that involves a thought disorder," which he said E.F. had suffered from "for a good share of his life." It "often implies that somebody has a hard time facing reality or dealing with the kind of exigencies of daily life," and can interfere with a person's personal relationships and ability to work and provide for food, clothing or shelter. As for the treatment of schizophrenia, "mostly the emphasis is on medication and also therapeutic setting," the latter meaning "[a] facility where somebody can go to get either group therapy or emotional support."
Dr. Levin said E.F. was prescribed two antipsychotic medications and a mood stabilizer and anticonvulsant to be taken daily, one of the antipsychotics twice a day. The antipsychotics "address[ed] things like paranoia, delusional thoughts," and were "meant to diminish or control the symptoms of schizophrenia." He was prescribed additional medication as needed if he became too upset.
According to Dr. Levin, some people can take medication and still experience symptoms. "Unfortunately," he said, "there are a lot of people who may get some benefit from medication but not enough to restore them to [a] higher level of functioning." His account of the symptoms of schizophrenia he observed during his interview with E.F. indicates E.F. was one of those people.
Dr. Levin testified that E.F. "would be focused and on point" and "then sort of suddenly drift off or kind of get into his own loose associations." He told Dr. Levin he was 31 years old when he was actually 47, and lacked insight into why he was in a psychiatric facility. He was aware that he had been there for over 20 years, but he continued to maintain that he was 31 years old despite Dr. Levin pointing out that that meant he had been there since age 11.
Asked about his background, E.F. said, among other things, that he "was the only African-American black man who is an American citizen in the country." Asked where he would go if he were discharged, he said he would stay with his sister, who, he said, was going to be his mother. When asked if he meant his sister was going to look after him, E.F. replied," 'No. The next time around she's going to be my mother,'" which, according to Dr. Levin, was "somewhat idiosyncratic and unusual delusional."
Dr. Levin also described E.F.'s fluctuating temperament during the interview. Dr. Levin said he did not ask as many questions as he wanted because E.F. became more agitated, paranoid, and avoidant when the doctor tried to get further information from him. E.F. would have noticeable moments of irritability but otherwise was generally friendly. He was defensive and irritable when Dr. Levin was writing things down, at one point stating that he did not want to talk any more, but continued talking after Dr. Levin put down his pen. According to Dr. Levin, that kind of sudden irritability or reactivity could be related to problems controlling impulses, a symptom of schizophrenia. Also, E.F. refused to discuss his family and his mother, which Dr. Levin thought indicated paranoia.
Dr. Levin's testimony about the interview also indicates E.F.'s already impaired mental condition would likely deteriorate if he was discharged from the hospital because of his denial of his disorder and his need for medication. Dr. Levin said it was important for a person's progress to recognize they had psychiatric problems and take prescribed medications on a regular basis. However, E.F. told him that, while he might have had schizophrenia at one point, he no longer had it. He seemed willing to take his medications regularly but did not understand what they were for and could not identify them. He said they helped him sleep but that, if released, he would not necessarily continue with them. Instead, he "would probably figure out a medicine that would work for him." Dr. Levin thought it was "highly doubtful" that E.F. would continue to take his medication based on what he said, which would cause him to become more symptomatic.
E.F. also was unable to articulate any realistic plans for what he would do upon discharge. He said only that he would stay with a sister who would later become his mother and referred to the City of Richmond, and he was vague about his plans. Dr. Levin opined that he was incapable of making reasonable plans for shelter and, though he might be able to find a place to get some food and clothing, he had "no real plans."
Further, Dr. Levin, the only witness at the trial, testified that in his expert opinion, based on his interview of E.F., review of E.F.'s psychiatric records and recent history, and discussions with E.F.'s treating professionals, E.F. was gravely disabled.
Contrary to E.F.'s other appellate claim, Dr. Levin was allowed to state this conclusion, as we will soon discuss.
Certain psychiatric records provide additional compelling evidence of E.F.'s grave disability. Specifically, two of the Exhibit 2 psychiatric records about which Dr. Levin testified were plainly admissible under E.F.'s view of the business records exception because the court could reasonably conclude, based on the Napa State Hospital custodian of records affidavit and the content of the two records themselves, that they were created in the regular course of the hospital's care of E.F. by staff observing the acts and events described at or near the time they occurred.
First, the writer of a December 10, 2021 "quarterly psychology progress note" reported trying to build rapport with E.F. during an interview by asking about his history. E.F. cursed at the writer repeatedly and stormed out of the room, only to later be kind and friendly to the writer. E.F. did not object to this passage being admitted into evidence in his motion in limine.
The December 10, 2021 note also recounts in the next paragraph that E.F., when asked about his symptoms, said his" 'schizophrenia was cured by the pills,'" but also was "unwilling to continue taking medication" if he was discharged. He said he should be allowed to choose" 'what pills to take'" when at home and alone, and that he would try to" 'get pills'" so he could feel" 'straight'" if he was discharged. As Dr. Levin testified, the note recounts statements by E.F. that were consistent with what E.F. said to Dr. Levin.
E.F. does not identify his specific objection or objections to these statements. Besides those objections in his motion in limine that we have already addressed, he may have objected to them as descriptions that do not expressly state that the writer witnessed these statements during the interview referred to in the previous paragraph. But given the fact that the paragraphs follow one after the other and used the same tenses and reporting style, the trial court could reasonably conclude E.F.'s statements occurred in the same interview.
In the second plainly admissible medical record, a March 22, 2021 quarterly psychology progress note, the writer of the note reported interviewing E.F., who said his medications helped him" 'relax'" but acknowledged only that he" 'almost'" had a mental illness. E.F. "talked about his auditory hallucinations," and was "initially able to talk about how seeking out others to engage (e.g. to play dominoes) helps him. However, as he continued to talk, his thought content became more expansive and less well organized ('When I come back to earth from Heaven . . . from England ....')." Dr. Levin testified this was similar to what he observed during his interview of E.F.
E.F. does not identify his specific objection or objections to these passages either. Besides those objections in his motion in limine that we have already addressed, he may have objected for lack of sufficient clarity that the writer of the note observed these statements. But the writer of the note refers to an interview of E.F. and states two sentences later, "We discussed . . .," from which the trial court could reasonably conclude that the writer observed E.F. make the statements in the note that we have recounted.
E.F argues it was reasonably probable for several reasons that he would have obtained a better result at trial but for the court's hearsay errors. He characterizes Dr. Levin as a "relatively weak" witness, highlighting Dr. Levin's lack of prior knowledge of, and limited interaction with, E.F. and the subjects not discussed between them, as well as Dr. Levin's testimony that he spent only about 45 minutes reviewing some of E.F.'s psychiatric records and 15 minutes speaking with E.F.'s treating psychiatrist, who was newly assigned, and did not speak with anyone else on E.F.'s treatment team. But none of the evidence E.F. refers to dilutes the powerful testimony of Dr. Levin, clearly an experienced psychiatrist and the only trial witness, that we have reviewed or of the plainly admissible psychiatric records that we have discussed. They provide ample support for the conclusion that E.F. was beyond a reasonable doubt gravely disabled, in that he suffered from schizophrenia, which caused him to experience delusions, loose associations, and fluctuating moods, and deny his mental disorder and the need for him to take prescribed medication, which disorder rendered him unable to provide for his basic personal needs for food, clothing, or shelter. Therefore, any error by the court in admitting inadmissible hearsay evidence was harmless.
He highlights that Dr. Levin's testimony indicates he did not do anything specific to build rapport with E.F., nor talk with E.F. about his willingness to reside at a board and care facility (as indicated in one record contained in Exhibit 2, although one that E.F. sought to exclude in his motion in limine), working with a case manager in the community, securing food and clothing, his sources of income, or how to contact his sister.
Among other things, E.F. argues that the trial court, by admitting opinions, conclusions, and multiple hearsay, violated E.F.'s federal and state "due process right to cross-examine the witnesses against him." Nonetheless, he agrees that we evaluate prejudice under the state standard. Regardless, we would also find any error by the court harmless under the federal standard as well. (See Chapman v. California (1967) 386 U.S. 18, 24 ["before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt"].)
C. Dr. Levin's Testimony About E.F.'s Grave Disability
E.F. also argues the trial court prejudicially erred by allowing Dr. Levin to opine that E.F. was "gravely disabled" because this was a factual determination and legal conclusion to be decided by the jury, which was capable of deciding it without expert assistance.
1. Forfeiture
The Public Guardian argues E.F. has forfeited this "grave disability" claim by failing to raise a proper objection below. E.F. does not dispute that his counsel did not object to Dr. Levin's testimony that, in his professional opinion, E.F. was gravely disabled. Nonetheless, E.F. argues, he did not forfeit this claim because, while he, through his counsel, accepted Dr. Levin as an expert in psychiatry, he objected to the designation of him as an expert in evaluating grave disability. Specifically, his counsel said, "I will not object as to psychiatry. As to grave disability, submit the objection."
A decision made below can be set aside on the ground of the erroneous admission of evidence only if "[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion." (Evid. Code, § 353, subd. (a), italics added.) Thus, a party forfeits an appellate claim if he or she does not first object in the trial court on that specific ground. (People v. Boyette (2002) 29 Cal.4th 381, 424 [holding that the subject "issues were not preserved for appeal because defendant did not object at trial on those specific grounds"].)" 'Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence.'" (Ibid.) Accordingly, a party's objections to testimony in the lower court on grounds other than the one raised on appeal do not preserve that appellate claim. (People v. Demetrulias (2006) 39 Cal.4th 1, 10-21 [finding forfeiture because "a relevance objection does not, in itself, alert the trial court to the claim that the testimony objected to is inadmissible character evidence"].)
E.F.'s only objection was to Dr. Levin's expertise in the subject of grave disability, which he made without explanation. He did not object that Dr. Levin could not opine on the ultimate fact of whether E.F. was gravely disabled. Therefore, we conclude he has forfeited his "grave disability" claim.
2. Analysis of E.F.'s "Grave Disability" Claim
Even if we were required to address the merits of his "grave disability" claim, we would reject it under our abuse of discretion standard. (See People v. Rowland, supra, 4 Cal.4th at p. 266.) E.F. does not dispute that "[t]estimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact." (Evid. Code, § 805.) Instead, he argues the trial court should not have admitted Dr. Levin's testimony that, in his professional opinion, E.F. was gravely disabled because whether a person is capable of securing food, clothing, or shelter is not sufficiently beyond the common experience of jurors as to require expert testimony and, therefore, Dr. Levin's testimony usurped the function of the jury.
E.F.'s contention is incorrect. Expert testimony may be admitted whenever it assists the jury. (People v. McAlpin (1991) 53 Cal.3d 1289, 12991300.) It will be excluded when" 'the subject of the inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness.'" (Id. at p. 1300.) That is not the case here. E.F. fails to grapple with the fact that a person can only be found to be gravely disabled if his inability to secure food, clothing, or shelter is "a result of a mental health disorder." (§ 5008, subd. (h)(1)(A); Conservatorship of K.P., supra, 11 Cal.5th at p. 706.) The court was within its discretion to allow Dr. Levin to testify on these matters.
For example, in a case we have reviewed in our independent research, Conservatorship of Isaac O. (1987) 190 Cal.App.3d 50, the conservatee argued the court should not have allowed a psychiatrist who testified as an expert witness to opine that the conservatee "was unable to use the elements of life which are essential to health, safety, and development, including food, clothing, and shelter . . . [which] inability was attributed to [the conservatee's] mental disorder." (Id. at p. 56.) The appellate court rejected this contention because," '[a]lthough a juror might know whether a person was able to take care of his basic needs a juror cannot determine from common experience whether that inability results from a mental disorder or from some other reason.' Under this standard, [the expert's] testimony was admissible ...." (Id. at p. 57, quoting Conservatorship of Torres (1986) 180 Cal.App.3d 1159, 1163.)
We agree with Isaac O. Dr. Levin properly testified about E.F.'s incapacity as a result of his mental condition and its symptoms. This was well within the area of his expertise, and E.F. does not argue that schizophrenia and its symptoms are within common experience. Therefore, Dr. Levin's challenged testimony was admissible as expertise of assistance to the jury. Dr. Levin did not usurp the jury's function. (Cf. People v. Torres (1995) 33 Cal.App.4th 37, 47-48 [cited by E.F., held, improper for officer to state the meaning of the statutory terms robbery and extortion and to opine that the crimes committed in the case were robberies, as neither crime was beyond common experience].) E.F.'s argument to the contrary is without merit.
Further, even if there were error here, it would be harmless under the state standard for prejudice analysis, which E.F. acknowledges applies here. As we have discussed, the plainly admissible evidence strongly indicates E.F. was gravely disabled. This is true even if we exclude from consideration Dr. Levin's opinion that E.F. was gravely disabled.
Also, the court made clear to the jury that it, not Dr. Levin, was to make the ultimate findings. and that it was not required to follow his opinion. The court told the jury when it found Dr. Levin qualified to testify as an expert that "[y]ou always retain the ability to make factual determinations in this case and to determine the credibility of witnesses." It later instructed the jury that, while "[t]he law allows an expert to state opinions about a matter in the expert's field of expertise even if the expert has not witnessed any of the events involved in the trial," the jury "do[es] not have to accept the expert's opinion. As with any other witness, it is up to you to decide whether you believe the expert's testimony and choose to use it as a basis of your decision."
In short, there was no reasonable probability that E.F. could have achieved a better result if the court had not allowed Dr. Levin to opine that E.F. was gravely disabled. Any error was harmless.
III. DISPOSITION
The order appealed from is affirmed.
WE CONCUR: BROWN, P. J. HIRAMOTO, J.[*]
[*] Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.