I.

BACKGROUND

This writ petition arises out of three misdemeanor cases in

which real party in interest, Rodolfo Luna, is charged with elder

abuse, resisting arrest, and indecent exposure. When doubts arose

about Luna’s competence to stand trial, the trial court suspended

criminal proceedings. The trial court ordered Luna to be evaluated

by a psychologist for mental competency pursuant to Penal Code

section 1368.2 Luna’s cases were then calendared in the mental

health treatment court. In her report dated January 16, 2022, Tamar

Kenworthy, Psy.D., opined Luna was incompetent to stand trial.

On January 21, 2022, the mental health treatment court found

that Luna was incompetent and not suitable for diversion under

section 1001.36, subdivision (b)(1)(D). The treatment court

referred the matter to petitioner for an LPS conservatorship based

on the opinion of Amanda Rosen, a utilization review specialist for

to the court on the court’s own motion under the California Rules of Court, rules 8-1000 – 8.1018. 2 Further undesignated references to sections are to the Penal Code.

-2- the Fresno County Department of Behavioral Health, who is a licensed

marriage and family therapist (LMFT).

Petitioner Fresno County Public Guardian objected to the

treatment court’s reliance on an LMFT’s opinion about Luna’s grave

disability. Ultimately, the treatment court noticed a hearing on

the issue of whether Rosen was qualified to render an opinion on

whether Luna was suffering a grave disability under section

1370.01.

At the hearing on February 25, 2022, petitioner argued that an

LMFT was not “a qualified mental health expert” for the purpose of

section 1370.01 referrals. The treatment court ruled that an LMFT

is “a qualified mental health expert” for the purpose of section

1370.01, reasoning that an LMFT can place a Welfare and Institutions

Code section 5150 hold.

Petitioner then filed the instant writ petition. Petitioner

argues that the court erred in determining that an LMFT is a

qualified mental health expert for the purposes of making a

determination under section 1370.01 that a person is gravely

disabled for a referral for an LPS investigation. Petitioner seeks

an order staying the court’s order in this case, and ordering the

court to obtain the opinion of a qualified mental health expert.

We entered an order notifying the parties that we were

considering issuing a peremptory writ of mandate in the first

instance (see Palma v. U.S. Industrial Fasteners, Inc. (1984) 36

Cal.3d 171, 180), and calendared the matter for further proceedings. We granted petitioner’s request for a stay of the trial court’s

referral order, pending the outcome of a hearing on the merits. The

Fresno County District Attorney, as a real party in interest, filed

-3- an informal response opposing any writ relief, arguing an LMFT is

indeed a “qualified mental health expert” under section 1370.01.

II.

DISCUSSION

Because this writ involves review of the phrase “a qualified

mental health expert” as used in newly-amended section 1370.01, we

apply the de novo review standard. (Bruns v. E-Commerce Exchange,

Inc. (2011) 51 Cal.4th 717, 724.) Here, “[o]ur task is to discern

the Legislature’s intent. The statutory language itself is the

most reliable indicator, so we start with the statute’s words,

assigning them their usual ordinary meanings, and construe them in

context. If the words themselves are not ambiguous, we presume the

Legislature meant what it said, and the statute’s plain meaning

governs. On the other hand, if the language allows more than one

reasonable construction, we may look to such aids as the legislative

history of the measure and maxims of statutory construction. In

cases of uncertain meaning, we may also consider the consequences

of a particular interpretation, including its impact on public

policy.” (Wells v. One2One Learning Foundation (2006) 39 Cal.4th

1164, 1190.)

Section 1370.01 is one of a series of statutes that establish

procedures after a criminal defendant is found mentally incompetent.

The statute only applies when the defendant is charged with one or

more misdemeanors, or a violation of misdemeanor probation, and the

trial court finds reason to believe that the defendant may be incompetent as a result of a mental health disorder. The statute

was amended effective January 1, 2022, by Senate Bill 317 (2021-

2022 Reg. Sess.), in part to eliminate referrals of incompetent

-4- misdemeanor defendants to custodial treatment. Applicable here,

the new statute changed how referrals to the conservatorship

investigator are initiated.3

Section 1370.01, subdivision (1)(D)(iii), now provides, in

relevant part, that if the court finds the defendant ineligible for

mental health diversion the court may “hold a hearing” to determine

whether to “refer the defendant to the county conservatorship

investigator . . . for possible conservatorship proceedings for the

defendant” pursuant to Welfare and Institutions Code section 5350,

et seq. But, “[a] defendant shall only be referred to the

conservatorship investigator if, based on the opinion of a qualified

mental health expert, the defendant appears to be gravely disabled,”

as defined in Welfare and Institutions Code section 5008. (Italic

added.) The phrase “qualified mental health expert” is not defined

by section 1370.01, or anywhere else in the Penal Code.

Petitioner takes the position that Rosen, an LMFT, is not a

“qualified mental health expert” because LMFTs cannot determine

whether a person is “gravely disabled” for the purposes of imposing

a Lanterman-Petris-Short (LPS) Act conservatorship under the

Welfare and Institutions Code. According to petitioner, Welfare

and Institutions Code sections 5352 and 5352.5 provide that only a

professional person in charge of an agency providing comprehensive

evaluation or of a facility providing intensive treatment can

recommend that a LPS Act conservatorship be established. (Welf. &

3 Prior to January 1, 2022, the court could “order the conservatorship investigator” to “initiate conservatorship proceedings” “if it appears to the court that the defendant is gravely disabled, as defined in subparagraph (A) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code.” (Pen Code § 1370.01, subd. (c)(2), Stats. 2021, c. 143 (A.B.133), § 344, eff. July 27, 2021.) -5- Inst. Code, § 5352 [“The professional person in charge of an agency

..., or the professional person in charge of ... a county jail, or

his or her designee, may recommend conservatorship for a person

..., if ... the professional person or another professional person

designated by him or her has examined and evaluated the person and

determined that he or she is gravely disabled ...]; Welf. & Inst.

Code, § 5352.5, sub.(a) [“Conservatorship proceedings may be

initiated ... upon recommendation of the medical director of the

state hospital, or a designee, or professional person in charge of

the local mental health facility, or a designee, or the local mental

health director, or a designee, to the conservatorship investigator

...”].)

Petitioner also cites, title 9 of the California Code of

Regulations, section 822, which provides “[a]s used in the Act,

‘professional person in charge of a facility’ means a person as

defined in Section 623, 624, 625, 626, or 627 of this Chapter who

is designated by the governing board of the facility or other agency

or person having control of the facility as the professional person

clinically in charge of the facility for purposes of the

Act.” (Cal. Code Regs., tit. 9, § 822.) Sections 623 through 627

of the California Code of Regulations define a “professional person”

as (1) a psychiatrist, (2) a psychologist, (3) a clinical social

worker, (4) a marriage, family and child counselor, or (5) a nurse

licensed as a registered nurse with a master’s degree in psychiatric

or public health nursing. Pointing to Business and Professions Code sections 4980.36 and

4980.02, the district attorney counters an LMFT is authorized to

render an opinion on grave disability pursuant to section 1370.01

-6- because the Business and Professions Code requires an LMFT to

receive education on the diagnoses and prognoses of mental

disorders, on assessing and testing individuals, and on planning

evidence-based treatments. Further, according to the district

attorney, section 626, of title 9, of the California Code of

Regulations considers LMFTs “professional persons” for purposes of

rendering an opinion on grave disability. Thus, the district

attorney concludes the trial court properly relied on Rosen’s

opinion for making a recommendation about Luna’s grave disability.

We believe we only need to look to the plain language of the

statute as the most reliable indicator of Legislative intent.

(Wells v. One2One Learning Foundation, supra, 39 Cal.4th at p.

1190.) In our view, the phrase “qualified mental health expert” is

unambiguous. “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.” (Evid. Code, § 720, subd. (a).) Moreover, the

phrase “qualified mental health expert” has been used in section

1001.36 since its enactment in 2018. That section provides that

mental health diversion is proper where the court “is satisfied

that the defendant suffers from a mental disorder” as evidenced by

“a recent diagnosis by a qualified mental health expert.” (Pen.

Code § 1001.36, subd. (b)(1)(A).) “In opining that a defendant

suffers from a qualifying disorder, the qualified mental health

expert may rely on an examination of the defendant, the defendant's medical records, arrest reports, or any other relevant evidence.”

(Ibid.)

-7- The phrase “qualified mental health expert” has been judicially

construed in case law concerning the determination of competency.

In this context “[a] qualified mental health expert is someone,

like a psychiatrist or psychologist, who is trained and experienced

in diagnosing and treating mental health conditions.” (People v.

Hines (2020) 58 Cal.App.5th 583, 608 [addressing qualifications of

expert to opine a defendant is incompetent to stand trial pursuant

to § 1368].) “Where a statute is framed in language of an earlier

enactment on the same or an analogous subject, and that enactment

has been judicially construed, the Legislature is presumed to have

adopted that construction.” (People v. Harrison (1989) 48 Cal.3d

321, 329.) Thus, in using identical words to delineate who may

opine about the initiation of a court-referred LPS conservatorship

investigation, we presume the Legislature intended to convey the

same meaning as within the context of mental health diversion.

Rosen, an LMFT and utilization review specialist with the Fresno

County Department of Behavioral Health, is an expert trained and

experienced in diagnosing and treating mental health conditions.

(Evid. Code, § 720, subd. (a); People v. Hines, supra, 58 Cal.App.4th

at p. 608.)

While we believe no ambiguity exists, the legislative history

of section 1370.01 buttresses our interpretation. Newly-amended

section 1370.01 was enacted through Senate Bill 317 (2021-2022 Reg.

Sess.), to compliment, in part, the mental health diversion statute

in section 1001.36. Our review of the legislative history reveals the author, Sen. Stern, sought to provide trial courts with

“alternative options,” using a “tailored approach” with “existing

tools,” to avoid a cycle of incarceration by creating a treatment

-8- pathway. (Assemb. Comm. On Public Safety, Analysis of Sen. Bill

No. 317 (2021-2022 Reg. Sess.) June 29, 2021, pp. 6-7.) Notably,

and of paramount concern to the author, was (1) the elimination of

custodial referrals for misdemeanor defendants found incompetent to

stand trial, and (2) the prevention of delays in treatment. (Id.

at pp. 9-10.)

We believe petitioner’s interpretation of a qualified mental

health expert is contrary to the statute’s legislative intent

because it requires a treatment court to go outside “existing tools”

to find and appoint a “qualified mental health expert,” after

incompetency has already been determined based on the opinion of a

“psychiatrist, licensed psychologist, or any other expert the court

[has deemed] appropriate.” (Pen. Code, § 1369, subd. (a).)

Designated mental-health treatment courts are often staffed with

mental-health justice partners, such as Rosen, who are the “existing

tools” relied upon by the court. Allowing an LMFT, like Rosen, to

opine about grave disability under section 1370.01 uses “existing

tools” to “avoid a cycle of incarceration.” We also note that using

“existing tools,” like Rosen, whom are immediately at the treatment

court’s disposal, prevents unnecessary court delays in incompetency

matters.

Petitioner asserts the treatment court’s reasoning about why

an LMFT is qualified to render an opinion on grave disability – the

ability to make an application under Welfare and Institutions Code

section 5150 – is flawed, because many unlicensed individuals are also qualified to make this application. Thus, according to

petitioner, the court’s flawed reasoning would mean that peace

officers could also make grave disability determinations. However,

-9- we review judicial action, not judicial reasoning. Thus, if a trial

court reaches the correct result, albeit for erroneous reasons, its

decision will be affirmed. (Rappleyea v. Campbell (1994) 8 Cal.4th

975, 981.) We believe the trial court’s action was correct.

Petitioner claims it requires “a clinical opinion” of grave

disability from a qualified mental health expert, because it does

not have the ability to do so itself. But, nothing prevents

petitioner from seeking “a clinical opinion,” if it desires one.

We believe that Rosen’s opinion about Luna’s grave disability,

whether “clinical” or not, suffices for the referral for a

conservatorship investigation. At oral argument, petitioner

asserted it had previously relied on custodial clinician reports

from treatment facilities to commence their investigation, under

former section 1370.01. Nevertheless, we do not question the wisdom

of the Legislature, where it sought to eliminate referrals for

incompetent misdemeanants to custodial treatment settings.

Finally, petitioner asserts that assuming arguendo, Rosen is

qualified to render an opinion on grave disability under section

1370.01, her opinion is nonetheless flawed because her evaluation

was not done face-to-face with Luna. According to petitioner, the

treatment court’s minute order does not reflect “a personal

evaluation” of Luna. The record is silent on this point. Put

otherwise, petitioner’s assertion of a lack of a personal evaluation

is not supported in the record. It was incumbent on petitioner to

support this assertion to carry its burden of showing error in the record. (In re Kathy P. (1979) 25 Cal.3d 91, 102.) This was not

done. Accordingly, we reject this claim.

//

-10-

III.

DISPOSITION

The stay is lifted and the peremptory writ is discharged.

IT IS SO ORDERED.

Dated this 5th day of May, 2022.

________________________________ Hon. F. Brian Alvarez Presiding Judge of the Appellate Division of the Fresno Superior Court

________________________________ Hon. D. Tyler Tharpe Assistant Presiding Judge of the Appellate Division of the Fresno Superior Court

_______________________________ Hon. Kristi Culver Kapetan Judge of the Appellate Division of the Fresno Superior Court

-11-