People v. Wilson CA2/7

Filed 12/15/20 P. v. Wilson CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B299859
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. ZM003215)
v.
MARK WILSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Raul A. Sahugun, Judge. Affirmed.
Christopher Lionel Haberman, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, and Stephanie A. Miyoshi, Deputy
Attorney General for Plaintiff and Respondent.
_______________
Following a bench trial the superior court found Mark
Wilson was a sexually violent predator (SVP) and committed him
to the custody of the State Department of State Hospitals (DSH).
On appeal Wilson argues the court acted in excess of its
jurisdiction by considering the People’s SVP petition when there
was no likelihood his nearly two-decade-long commitment as a
mentally disordered offender would be lifted and he would be
released into the community. He also contends the court relied
on improper factors in making its ruling and its SVP finding was
not supported by substantial evidence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Wilson’s Convictions for Sexually Violent Offenses and
Civil Commitments
In September 1977 Wilson, then 18 years old, was
hitchhiking when 19-year-old Susan W. offered him a ride. After
telling Susan he was a violent person and had recently killed
three people, Wilson told her to do what he said and he would not
harm her. He raped her in her car, then made her perform oral
sex. Susan managed to escape and call police.
Wilson was arrested and charged with rape by threat.
Susan told police Wilson had acted as if he were mentally ill.
Wilson’s father also told police his son was mentally ill. Wilson
pleaded guilty as part of a negotiated plea that required him to
be assessed as a Mentally Disordered Sex Offender (MDSO)
1
(Welf. & Inst. Code, former § 6300) and provided, if he did not
qualify, he would be placed on five years’ probation with the
1
Statutory references are to this code unless otherwise
stated.
2
2
condition he serve one year in the county jail. After a hearing
and finding Wilson did not meet the criteria for commitment as
an MDSO, the court suspended execution of sentence, including
the one-year term in county jail, and placed Wilson on probation
for five years.
In 1981 Wilson grabbed Theresa S., pulled her into a
church, threatened to kill her if she gave him any trouble, and
forced her to perform oral sex. Following his arrest Wilson told
police he had sexual problems and he had fantasies of raping
frightened women. In March 1981, pursuant to a negotiated
agreement, Wilson pleaded guilty to forcible oral copulation.
Under the plea agreement Wilson would either be adjudged an
MDSO or serve eight years in prison. In July 1981, following a
MDSO hearing, proceedings were suspended; and Wilson was
committed to Patton State Hospital as an MDSO, where he
remained until his release in April 1989.
2
MDSO laws, which authorized civil commitment after
conviction of a sex offense for a period not to exceed the
maximum term of imprisonment that could have been imposed
for the offense (former §§ 6302, 6316.1), were repealed January 1,
1982 (Stats. 1981, ch. 928, § 2). “When it repealed the MDSO
scheme, the Legislature provided that individuals then
committed as MDSO’s and those whose terms of commitment had
been extended under the law would remain subject to the
provisions of the MDSO law ‘until the commitments are
terminated and the persons are returned to the court for
resumption of the criminal proceedings.’” (People v. Green (2000)
79 Cal.App.4th 921, 925; accord, Baker v. Superior Court (1984)
35 Cal.3d 663, 667; Landau v. Superior Court (2019)
32 Cal.App.5th 1072, 1086, fn. 7.)
3
In June 1990 Wilson was admitted involuntarily to
Metropolitan State Hospital with a diagnosis of bipolar disorder
mixed with mood congruent psychotic features. While
hospitalized he assaulted a psychiatric technician. He was
convicted in 1993 of assault causing great bodily injury and
sentenced to nine years in state prison.
In May 1999 Wilson was found to be a mentally disordered
offender (MDO) (Pen. Code, § 2962), committed to the custody of
DHS and transferred to Atascadero State Hospital. Wilson has
remained in DHS custody ever since, with continuous extensions
of his MDO commitment.
2. Petition for Commitment as an SVP
In May 1999 the People filed a petition to commit Wilson as
an SVP within the meaning of the Sexually Violent Predator Act
(SVPA) (§ 6600 et seq.) Following a hearing in November 2004
the court found probable cause to support the petition. Trial was
continued or stayed multiple times over the years, all at Wilson’s
3
requests.
In June and July 2019 a court trial was held on the petition
4
to commit Wilson as an SVP for a period of two years.
3
Wilson does not challenge the delay between the filing of
the petition and the trial.
4
At the time the SVP petition was filed, former section 6604
limited the civil commitment to two years, subject to renewal by
the People. (See Stats. 1995, ch. 763, § 3; People v. McKee (2010)
47 Cal.4th 1172, 1186.) In 2006 the SVPA was amended by
legislation, and later that year by Proposition 83, a ballot
measure approved by the voters on November 7, 2006 (“Jessica’s
Law”), to replace the two-year commitment term with an
4
3. The SVP Trial
a. The People’s evidence
The People provided expert testimony from two
psychologists, Drs. Michael Musacco and Christopher Matosich.
Dr. Musacco, a licensed clinical forensic psychologist, has
evaluated, diagnosed and treated sex offenders for more than
30 years. He currently works under contract with DSH to
evaluate whether an individual meets the criteria for
classification as an SVP or MDO. Dr. Musacco evaluated Wilson
in 2012, 2014, 2017 and 2018. Evaluations consisted of review of
Wilson’s criminal record (including arrest and probation reports
documenting the details of the offenses); written reports by other
psychologists who were no longer involved in the case; his own
interviews with Wilson; and diagnostic assessments, including
the Stat-99R assessment, which Dr. Musacco described as
“limited,” but also “the most widely used and best validated cross
validated instrument.”
Dr. Musacco opined Wilson suffered from severe mental
illness, including schizoaffective disorder with delusional beliefs
and auditory hallucinations that interfered with his ability even
to make day-to-day decisions. Wilson blamed his mother’s
hypnotizing powers, as well as voices he heard in his head, for
indefinite term of commitment. (See People v. Castillo (2010)
49 Cal.4th 145, 149; People v. Superior Court (Vasquez) (2018)
27 Cal.App.5th 36, 42, fn. 2.) To avoid a lengthy dispute over
application of Jessica’s Law to then-pending SVP petitions or
requests for immediate trial before voters decided on the ballot
measure, in 2006 the People stipulated that any order of
commitment based on petitions pending prior to the effective date
of Jessica’s Law, including the petition in the case at bar, would
be limited to two years.
5
committing his sexual assault crimes. His psychosis became
worse, not better, over time. In 2014 Wilson blamed “the voices”
for telling him to touch a fellow patient’s buttocks. He told
Dr. Musacco he had committed 12 to 18 other rapes, although
Dr. Musacco did not necessarily believe those statements. Wilson
also told Dr. Musacco he would not rape again, in part because
the cell phone that had been implanted in his body had been
5
removed.
Based on his own evaluation of Wilson and the descriptions
of Wilson’s sexual offenses contained in his criminal record,
Dr. Musacco opined Wilson also suffered from other specified
paraphilic disorder/nonconsent (OSPD). Dr. Musacco defined
paraphilia as any “deviant sexual arousal behavior pattern” and
OSPD as a specific form of paraphilia in that the perpetrator’s
arousal is based on coercion of the sexual act. He acknowledged
that OSPD was a controversial diagnosis in that, unlike other
forms of paraphilia, it had never been recognized in the
Diagnostic and Statistical Manual of Mental Disorders (DSM),
including the current DSM-5. He expressly stated rape alone is
not a basis to find someone suffers from OSPD/nonconsent; most
rapists do not suffer from OSPD/nonconsent; and the sexual
urges that inform all forms of paraphilia are diminished by
age 60, Wilson’s age at the time of the SVP trial. Nonetheless,
Dr. Musacco explained, Wilson’s “drive for the sexual behaviors is
5
Wilson also claimed to have come from “outer space,” was
personally acquainted with Captain Kirk, had been reincarnated
as Abraham Lincoln, and had difficulty obtaining an erection or
ejaculating because “Jon Bon Jovi took it [his sperm] out of me
. . . humanly and spiritually.”
6
significantly related to the psychosis and his psychosis hasn’t
diminished one iota from [ages] 40 to 60.”
Dr. Musacco opined Wilson posed a serious and well-
founded risk for committing a predatory sexual offense if
released. Even apart from the Stat-99R scores and the OSPD
diagnosis, Dr. Musacco believed, Wilson’s severe schizoaffective
disorder, combined with his sexual obsessions and difficulty
distinguishing fantasy from reality, made him likely to reoffend
6
in a sexually violent way if released into the community.
b. Wilson’s evidence
Dr. Mary Jane Alumbaugh, a psychologist with more than
30 years experience, works under contract with DSH evaluating
individuals for whether they meet the criteria for MDO and/or
SVP. Dr. Alumbaugh agreed with Dr. Musacco that Wilson
suffered from severe schizoaffective disorder. However, she did
not believe that he suffered from OSPD, a controversial diagnosis
to which she gave little credit. In any event, there was nothing
that led her to believe the sexual turn-on for Wilson was the
coercive aspect of the rape and not other aspects of the crime.
Dr. Alumbaugh believed Wilson was severely mentally ill; she did
not believe, based on her analysis of Wilson’s mental health
records, criminal records, interviews and performance on the
Stat-99R, that Wilson’s severe mental illness predisposed him to
commit sexually violent offenses. Dr. Alumbaugh emphasized
6
Dr. Matosich, a clinical and forensic psychologist, testified
in a similar fashion for the People. However, the court was
critical of some aspects of Dr. Matosich’s opinion that relied on
inadmissible hearsay and did not credit them. Because it
appears the court did not rely on any part of Dr. Matosich’s
testimony in reaching its decision, we do not detail it here.
7
Wilson’s age as a significant factor in reaching her opinion,
noting the recidivism rate for rapists 60 years old or older was
3 to 4 percent. Dr. Alumbaugh conceded Wilson’s mental illness
predisposed him to violence and that, due to the nature of his
unremitting mental illness, he would continue to be a danger to
himself and to others if he were ever released. However, based
on her experience evaluating and treating SVP and MDO
patients, Dr. Alumbaugh believed Wilson was properly classified
as an MDO, not an SVP.
Dr. Christopher North, a psychologist employed by DSH,
has been conducting SVP evaluations for more than 25 years. He
evaluated Wilson six times in connection with the SVP petition,
in 1999, 2004, 2007, 2008, 2018 and 2019. In 1999 and 2004
Dr. North concluded Wilson met the criteria as an SVP. In 1999
and 2004 Dr. North found Wilson suffered from paraphilia
because he had a preoccupation with sex generally and rape in
particular. However, in 2007 Dr. North found no evidence Wilson
continued to harbor any desire to rape and found it compelling
that he had not voiced urges to rape or acted on those urges since
1981. By 2007 Dr. North saw no evidence of paraphilia and
believed Wilson was “aging out” of it. While there was no doubt
that Wilson suffered from schizoaffective disorder, by 2007
Dr. North found little evidence of sexual preoccupation.
Dr. North acknowledged that Wilson had told a female hospital
employee in 2012 that he wanted to corner her and rape her, but
was not persuaded that single incident suggested Wilson
continued to suffer from a sexual disorder. Considering the
foregoing facts, along with Wilson’s current age, Dr. North opined
Wilson was unlikely to commit sexually assaultive acts if
released.
8
4. The Parties’ Closing Arguments
In closing argument Wilson’s counsel asserted his client
was severely psychotic and a danger to the public but not a
sexually violent predator. Whatever sexually violent proclivities
Wilson may have had in his past, they were no longer present at
age 60. Protection of the public, he argued, was properly served
by the MDO commitment procedure, not by an SVP commitment
that simply did not apply to Wilson. As he did prior to trial,
Wilson’s counsel requested the court dismiss the petition because
Wilson, already committed as an MDO, would never be released
into the community and thus posed no danger to the public.
The People acknowledged that Wilson was not a typical
SVP in that he suffers from multiple mental disorders that
predispose him to committing a variety of dangerous acts,
including but not limited to sexual violence. Emphasizing
Dr. Musacco’s testimony that Wilson’s schizoaffective disorder
and paraphilia were enmeshed, the People argued those multiple
disorders cannot be separately evaluated; they exist together and,
coupled with a preoccupation with sex and sexual violence,
predispose Wilson to committing sexually violent offenses if he
were released into the community.
5. The Court’s Ruling on the SVP Commitment Petition
The court found beyond a reasonable doubt that Wilson
satisfied all the criteria for commitment as an SVP: (1) He had
been convicted of a qualifying offense; (2) he has been diagnosed
with a current mental illness; and (3) the illness makes him a
danger to the health and safety of others in that he is likely to
engage in acts of sexual violence upon release from a secure
facility. In explaining its ruling, the court stated it was “very
impressed with Dr. Musacco” and found his opinion that Wilson
9
remained predisposed to committing sexually violent predatory
offenses persuasive. “[Dr. Musacco]’s very very experienced. He
set forth all his reasons why he thought [Wilson] . . . met the SVP
requirements; that he continues to display conduct which was
troubling to the doctor and he still had these—still hears voices
telling him what to do, telling him to do things.” The court
continued, “If I was convinced that he was in a secure setting and
was committed to remain there, I might have a different opinion.
He’s only on—he’s only there on a temporary order under
[MDO]—as an [MDO]. . . . If I were certain he would remain
there, it would be a different story, but I can’t assume that he’s
gonna be—continue to be renewed on an [MDO] status in
perpetuity. If he were to be released, that would be a problem.
That would be a problem. And so I give great weight and I’m
persuaded by Dr. Musacco’s opinion.”
The court ordered Wilson committed to DHS custody as an
SVP for two years, until July 2, 2021, in accordance with the
parties’ stipulation.
DISCUSSION
1. Governing Law
The SVPA “authorizes the involuntary civil commitment of
a person who has completed a prison term but is found to be a
sexually violent predator . . . . [Citations.] The SVPA’s purposes
are ‘“to protect the public from dangerous felony offenders with
mental disorders and to provide mental health treatment for
their disorders.”’” (State Dept. of State Hospitals v. Superior
Court (2015) 61 Cal.4th 339, 344.)
To establish an individual is a sexually violent predator,
the People must prove beyond a reasonable doubt (1) the
individual has been convicted of a qualifying sexually violent
10
offense against one or more victims; (2) the individual suffers
from a diagnosed mental disorder that makes him or her a
danger to the health and safety of others in that (3) it is likely he
or she will engage in sexually violent criminal behavior.
(See §§ 6600, subd. (a)(1) [defining elements of SVP], 6604
[imposing beyond a reasonable doubt standard]; People v. Roa
(2017) 11 Cal.App.5th 428, 443; see generally State Dept. of State
7
Hospitals v. Superior Court, supra, 61 Cal.4th at pp. 345-346.)
2. The Court Did Not Act in Excess of Its Jurisdiction
Relying on People v. Putney (2016) 1 Cal.App.5th 1058,
1068 (Putney), Wilson contends the superior court acted in excess
of its jurisdiction in proceeding with the SVP petition when it
was clear Wilson’s MDO commitment would continue to be
renewed and there was no likelihood he posed any danger to the
public. In Putney the state petitioned to commit Thomas Earl
Putney as an SVP shortly after he had been sentenced to a state
prison term of 25 years to life. The court of appeal held the
petition should be dismissed as premature, explaining “an
7
The SVPA, including section 6600, subdivision (a)(1), has
been amended several times since May 1999 when the petition
was filed. Among other differences between the former and
current SVPA, former section 6600, subdivision (a)(1), in effect in
April 1999 at the time the petition was filed, required the
defendant to have committed a sexually violent offense against
two or more victims for which he or she received a determinate
sentence. (See Stats. 1996, ch. 462, § 4.) Former section 6604, in
effect at the time the petition was filed, limited the commitment
term to two years. (See Stats. 1995, ch. 763, § 3.) Because none
of the differences in the several iterations of the SVPA affects the
issues raised in this appeal and both parties cite to, and discuss,
the SVPA in its current form, we do as well.
11
offender who has no prospect of being released from custody for
many years does not meet the definition of an SVP [under
section 6600, subdivision (a)(1)] since the offender poses no
danger to the public.” (Id. at pp. 1068-1069.)
Wilson likens his MDO commitment to Putney’s lengthy
prison sentence, emphasizing his MDO commitment had been
renewed every year for nearly two decades based on findings his
severe psychosis made him a danger to the public. As long as he
remained a danger to the community, Wilson would continue to
be committed as an MDO with mental health treatment, posing
no danger to the public. Wilson also emphasizes that all
testifying experts, including Dr. Musacco, acknowledged Wilson’s
psychosis interfered with his ability to engage in, let alone benefit
from, SVP treatment. Under those circumstances, Wilson argues,
the SVPA’s primary objectives of protecting the public and
providing treatment were not furthered by adjudicating the SVP
petition; and the court erred by proceeding with the trial rather
than dismissing the petition. (See Putney, supra, 1 Cal.App.5th
at p. 1071 [“the [SVP] trial was aimed at resolving the theoretical
question of whether Putney was too dangerous for an imminent
release he had virtually no possibility of obtaining[;] [w]e cannot
approve such a pointless exercise”].)
Wilson made the same argument in his pretrial motion to
dismiss. The court rejected it, correctly observing that, unlike
Putney, Wilson was not subject to a lengthy prison sentence or
even a lengthy commitment. His MDO status was subject to
renewal every year. (Pen. Code, §§ 2970, 2972, subds. (a), (c).)
That Wilson’s MDO commitment was temporary materially
distinguished his circumstances from those in Putney. (See
People v. Superior Court (Perez) (1999) 75 Cal.App.4th 394, 402,
12
405 [superior court erred in dismissing SVP petition on ground
the defendant was subject to deportation; while deportation was a
8
possibility, it was not a foregone conclusion].) Moreover, the
SVPA does not limit eligibility to those who are able to benefit
from treatment, despite treatment being an objective of the
statute. The court did not exceed its discretion in denying
Wilson’s motion to dismiss and considering the People’s SVP
petition.
3. The Trial Court Did Not Consider Improper Factors in
Making Its SVP Determination
Citing the court’s language at the time of trial—“If I were
certain he would remain there, it would be a different story, but I
can’t assume that he’s gonna be—continue to be renewed on
[MDO] status in perpetuity[;] [i]f he were to be release[d], that
would be a problem”—Wilson contends the court relied on
improper and irrelevant considerations rather than statutory
elements in finding him an SVP. (Cf. People v. Moore (1968)
257 Cal.App.2d 740, 750 [court in criminal case erred in refusing
to reduce the charged offense to manslaughter due to the risk to
community posed by defendant’s mental health issues rather
than the governing law; trier of fact is not to consider
consequences of verdict in rendering decision].)
Viewing the record as a whole and the court’s comments in
context, it is plain the court was responding to Wilson’s
argument, made again at the close of evidence, that his MDO
commitment alone essentially foreclosed any finding he was a
danger to the public. Following that entirely proper response to
8
Nothing bars a dual commitment as an MDO and SVP, a
point Wilson concedes.
13
Wilson’s argument, the court expressly credited Dr. Musacco’s
testimony that Wilson met all the criteria for an SVP, finding
persuasive the various bases Dr. Musacco offered to support his
opinion. The court did not rely on improper factors when
considering the SVP petition.
4. Substantial Evidence Supports the Court’s Findings
Wilson acknowledges the first two statutory elements
necessary to support a SVP finding were satisfied: Wilson had
been arrested for a qualifying offense and suffered from a
diagnosed mental disorder that made him a danger to himself
and others. However, he contends the evidence was insufficient
to support the court’s finding as to the third element—that he
was likely to engage in sexually violent criminal behavior if
9
released.
9
In determining whether the evidence is sufficient to
support a commitment under the SVPA, “‘“courts apply the same
test as for reviewing the sufficiency of the evidence to support a
criminal conviction.”’” (People v. McCloud (2013) 213 Cal.App.4th
1076, 1088; accord, People v. Carlin (2007) 150 Cal.App.4th 322,
333.) That is, we review the record to determine whether any
rational trier of fact could have found the essential elements
supporting the SVP determination beyond a reasonable doubt.
(McCloud, at p. 1088.) In making this determination, “‘we review
the evidence in the light most favorable to the prosecution and
presume in support of the judgment the existence of every fact
the jury could reasonably have deduced from the evidence.
[Citation.] “Conflicts and even testimony [that] 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.] We resolve
neither credibility issues nor evidentiary conflicts; we look for
14
The determination a person is “‘likely to engage in acts of
sexual violence’” requires more than simply a finding of “more
likely than not.” (People v. Shazier (2014) 60 Cal.4th 109, 126;
accord, People v. Roberge (2003) 29 Cal.4th 979, 987.) Rather, the
“the standard of likelihood is met ‘when “the person presents a
substantial danger, that is, a serious and well-founded risk, that
he or she will commit such crimes if free in the community.”’”
(Shazier, at p. 126; accord, Roberge, at p. 982.)
In contending the evidence was insufficient, Wilson
observes that he last committed a sexually violent offense nearly
40 years ago, in 1981, when he was 22 years old. Although
Wilson threatened to rape a hospital staff member in 2012 when
she reprimanded him, and had consensual sex with another
patient in exchange for food in 2014, he had not engaged in any
nonconsensual sexual behavior during his 39 years in
confinement. Furthermore, as all the testifying experts
acknowledged, Wilson’s age—nearly 60 years old—significantly
reduced the likelihood of recidivism for a sexually violent offense.
In addition, Wilson emphasizes the testimony of his two expert
witnesses: Dr. North testified Wilson had “aged out” of his
paraphilic disorder and no longer met the criteria for SVP; and
Dr. Alumbaugh testified Wilson did not suffer from OSPD, even if
it were a legitimate illness recognized in the psychiatric
community, which she doubted.
substantial evidence. [Citation.]” [Citation.] A reversal for
insufficient evidence “is unwarranted unless it appears that
‘upon no hypothesis whatever is there sufficient substantial
evidence to support’” the jury’s verdict.’” (People v. Penunuri
(2018) 5 Cal.5th 126, 142; accord, People v. Westerfield (2019)
6 Cal.5th 632, 713.)
15
In characterizing this as a “difficult case,” the court cited
the conflicting opinions of the testifying experts as to whether
Wilson posed a serious, well-founded risk of criminal sexual
behavior if he were released. In concluding he did, the court
relied exclusively on Dr. Musacco’s testimony that Wilson’s
schizoaffective disorder, combined with his hypersexuality and
sexual preoccupations, created a substantial risk he would
engage in predatory sexual behavior if released. Dr. Musacco
also testified he was not surprised Wilson had not acted on his
urges while in DHS custody, explaining it was rare for SVP’s to
engage in such conduct while in a confined setting. Dr. Musacco’s
opinion, which is not challenged by Wilson as speculative or
unsound, was sufficient, even though in conflict with those of the
other experts, to support the court’s conclusion. (See People v.
Wright (2016) 4 Cal.App.5th 537, 545 [testimony of single
witness, including expert witness, is sufficient to constitute
substantial evidence, unless testimony is based on speculation or
conjecture]; People v. Bowers (2006) 145 Cal.App.4th 870, 879
[psychologist’s expert opinion defendant posed danger to public
due to her mental illness was sufficient to support jury’s
finding].)
Finally, similar to the arguments he made in connection
with his motion to dismiss, Wilson urges Dr. Musacco’s opinion
rested on the wrong hypothetical. The proper question, Wilson
insists, is not whether he would be likely to engage in predatory
sexual behavior if released, but whether, “[i]f [Wilson] were living
in a secure mental health facility receiving treatment for his
mental health condition under a conservatorship or MDO
commitment, would [he] pose a serious, well-founded risk to
commit sexually violent predatory offenses.” When viewed from
16
this perspective, Wilson asserts, “the answer is obviously that he
does not.”
Wilson’s MDO commitment was set to expire in April 2019.
That it would have likely been (and has since been) renewed, as
we have explained, did not preclude the court from considering
the SVP petition. (Cf. Putney, supra, 1 Cal.App.5th at p. 1069.)
Dr. Musacco properly opined on Wilson’s propensity to commit
sexually violent acts if he were released. The court credited his
opinion. Substantial evidence supported the court’s finding.
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J
We concur:
SEGAL, J.
FEUER, J.
17