People v. Bendovid

241 Cal. Rptr. 3d 640, 30 Cal. App. 5th 585
CourtCalifornia Court of Appeal, 5th District
DecidedDecember 20, 2018
Docket2d Crim. No. B288633
StatusPublished
Cited by5 cases

This text of 241 Cal. Rptr. 3d 640 (People v. Bendovid) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Bendovid, 241 Cal. Rptr. 3d 640, 30 Cal. App. 5th 585 (Cal. Ct. App. 2018).

Opinion

GILBERT, P. J.

*587Mentally disordered offenders (MDO's) committed for treatment lose their freedom. Courts must ensure strict compliance *588with statutory requirements to guarantee that commitments are not arbitrary and comport with due process.

Yosef Shavuii Bendovid appeals an order committing him for treatment as an MDO pursuant to Penal Code section 2962.1 We conclude, among other things, that Bendovid did not receive 90 days of treatment for his disorder "within the year" prior to his "parole or release." ( § 2962, subd. (c).) We reverse.

FACTS

In 2015, Bendovid was convicted of assault with force likely to produce great bodily injury (§ 245, subd. (a)(4) ) and sentenced to two years in state prison. In August 2017, the Board of Parole Hearings (BPH) classified Bendovid as an MDO. ( § 2962.)

On November 7, 2017, Bendovid challenged the BPH determination in court ( §§ 2962, 2966, subd. (b) ), and waived his right to a jury trial.

Meghan Brannick, a forensic psychologist at Atascadero State Hospital (ASH), testified Bendovid has a "delusional disorder," which qualifies as a severe mental *642disorder. His disorder was an "aggravating factor" in his commitment offense of assault, which he committed at a church where he was not a member of the congregation. His actions were "odd and unprovoked." In committing the crime, he had the delusional belief that he was a "Prince of Israel." His statements "made in subsequent e-mails" showed his "delusional thought processes."

Brannick testified Bendovid's mental disorder is not in remission and "could not be kept in remission without treatment." As of the date of the BPH hearing, Bendovid posed "a substantial risk of physical harm to others by reason of his severe mental disorder." He has a history of "violent and aggressive behavior." When she interviewed him, he showed a "limited insight into his disorder and need for treatment." He has a history of "treatment noncompliance."

Bendovid first received treatment for his mood disorder in jail, and then in prison from June 5, 2017, to August 18, 2017. He was prescribed Risperdal and Depakote. Risperdal is an "antipsychotic medication" prescribed for "psychotic symptoms." His treatment in prison was not long enough to satisfy the 90-day treatment requirement.

*589Brannick testified the jail medical records revealed that Bendovid was "suicidal" over his fear of being sent to prison. Bendovid was prescribed Abilify in jail. Abilify is an "antipsychotic medication with mood stabilizing benefits." It was administered by shots "every four weeks," beginning April 5, 2017, and ending May 21, 2017. Brannick testified this shows he was "undergoing treatment for a mental health issue" in jail. In jail Bendovid also received Depakene, the liquid form of Depakote. Depakene is "another mood stabilizing medication."

The People introduced the jail medical records, which reflect Bendovid was diagnosed for mood and personality disorders in jail, not for a delusional disorder. Brannick said the jail authorities and ASH diagnosed Bendovid with different disorders.

Bendovid claimed the People could not prove 90 days of treatment because the jail authorities had not diagnosed him for his delusional disorder which was his severe mental disorder. Nevertheless, the trial court found Bendovid met the criteria for an MDO commitment.

DISCUSSION

90 Days of Treatment Requirement

Bendovid contends there is insufficient evidence that he received 90 days of treatment for his severe mental disorder.

" ' "To be substantial, the evidence must be ' "of ponderable legal significance ... reasonable in nature, credible and of solid value." ' " ' " ( People v. Wright (2016) 4 Cal.App.5th 537, 545, 208 Cal.Rptr.3d 686.)

For an MDO commitment, the defendant must receive 90 days of treatment for his or her severe mental disorder "in the year before being paroled." ( People v. Sheek (2004) 122 Cal.App.4th 1606, 1610, 19 Cal.Rptr.3d 737 ; § 2962.) Proof that the defendant has a severe mental disorder that was not in remission and the other MDO factors in section 2962 will not authorize a commitment unless the People prove the 90-day treatment requirement. (Ibid. )2

*643*590Bendovid does not dispute that he received 75 days of treatment in prison. But he claims he did not receive treatment for his delusional disorder in jail before he was sent to prison. The People contend the trial court could reasonably find that he received at least 15 days of treatment for that disorder while in jail.

But the prosecutor told the trial court that jail records show "there's a diagnosis of unspecified mood disorder." He did not claim there was a diagnosis for the delusional disorder in the jail records. The delusional disorder is the severe mental disorder in this case.

The jail medical records, which the People introduced into evidence to prove treatment, show: 1) that on April 5, 2017, Bendovid was diagnosed with an "unspecified mood disorder" and an "unspecified personality disorder"; 2) he was treated for these disorders until May 20, 2017, in jail; 3) the final diagnosis was that he had those two disorders; and 4) the jail's May 20, 2017, medical transfer document to state prison lists those same two diagnosed disorders.

Bendovid notes the jail records do not show a diagnosis for a delusional disorder. The jail medical authorities did not state that they were treating him for such a disorder or that they saw evidence that he had delusions. "The MDO [Act] requires the district attorney to accept the diagnosis and prognosis of the physicians at the treating facility ...." ( Cuccia v. Superior Court (2007) 153 Cal.App.4th 347, 355, 62 Cal.Rptr.3d 796.) Here the relevant treating facility was the county jail.

The People concede that the jail medical authorities did not diagnose Bendovid as having a "delusional disorder." The diagnosis for that disorder occurred later. Brannick said Bendovid "started treatment on June 5, 2017" for his delusional disorder in prison. He received treatment there until August 18, 2017. But that prison treatment period is less than 90 days.

Brannick acknowledged that the jail, prison and ASH medical authorities had made

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Cite This Page — Counsel Stack

Bluebook (online)
241 Cal. Rptr. 3d 640, 30 Cal. App. 5th 585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bendovid-calctapp5d-2018.