People v. Bendovid

• Decision Date: 20 December 2018
• Docket Number: 2d Crim. No. B288633
• Citation: 30 Cal.App.5th 585,241 Cal.Rptr.3d 640
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Yosef Shavuii BENDOVID, Defendant and Appellant.

30 Cal.App.5th 585

241 Cal.Rptr.3d 640

The PEOPLE, Plaintiff and Respondent,

v.Yosef Shavuii BENDOVID, Defendant and Appellant.

2d Crim. No. B288633

Court of Appeal, Second District, Division 6, California.

Filed December 20, 2018

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Christopher G. Sanchez, Deputy Attorney General, for Plaintiff and Respondent.

GILBERT, P. J.

Mentally disordered offenders (MDO's) committed for treatment lose their freedom. Courts must ensure strict compliance with 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 disorder. 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.

Brannick 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

Bendovid 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 different diagnoses of Bendovid’s mental disorders. She said, "[T]he diagnosis that’s best identified at the San Diego Sheriff’s Department, I don’t believe needs to be consistent with [the] diagnosis we’ve rendered at [ASH]." (Italics added.)

But the different diagnoses meant Bendovid was being diagnosed and treated for a different disorder in prison than the two disorders he was diagnosed and treated for in jail. To establish treatment for the 90-day requirement, the People must prove the defendant "was diagnosed" for the severe mental disorder during the relevant treatment period. ( People v. Sheek , supra , 122 Cal.App.4th at p. 1611, 19 Cal.Rptr.3d 737.)

The People nevertheless suggest the absence of a delusional disorder diagnosis in jail should not change the result on the 90-day treatment issue.

Bendovid responds, "[T]he notion that jail officials would ‘treat’ a prisoner for a mental disorder that the People concede was never diagnosed ... is absurd ...." The word "absurd" aside, there is merit to this claim.

The diagnosis determines the treatment the patient receives. (American Psychiatric Assn., Diagnostic & Statistical Manual of Mental Disorders (5th ed. 2013), p. 5 (DSM-5.) ) For involuntary hospitalizations, the "therapeutic process" begins with observation and the "diagnosis to determine whether treatment is required." ( In re Curry (D.C. Cir. 1971) 452 F.2d 1360, 1363, fn. 3.)

In MDO cases where the treating doctors have not diagnosed the severe mental disorder, there is insufficient evidence to support a finding that they treated the defendant for that disorder. ( People v. Sheek , supra , 122 Cal.App.4th at p. 1611, 19 Cal.Rptr.3d 737 [a 90-day treatment finding could not be sustained where the treating doctors did not diagnose the disorder

and its discovery occurred after the relevant treatment period]; see also People v. Garcia (2005) 127 Cal.App.4th 558, 567, 25 Cal.Rptr.3d 660 ["Department had not diagnosed defendant with" the severe mental disorder, "[t]herefore, defendant had not been treated for [it]"].)

The court had no basis to find Bendovid was treated for the disorder that was relevant to his commitment. ( People v. Sheek , supra , 122 Cal.App.4th at p. 1611, 19 Cal.Rptr.3d 737.) "[I]t is hard to see how a doctor can provide treatment ‘for’ a condition without knowing what that condition is or that it even exists." ( Lawson v. Fortis Ins. Co. (3d Cir. 2002) 301 F.3d 159, 165 ; Van Volkenburg v. Continental Cas. Ins. Co. (W.D.N.Y. 1997) 971 F.Supp. 117, 122 ["plaintiff reasonably argues that to obtain advice or treatment regarding a medical ‘condition,’ you must first have some awareness that the ‘condition’ exists"]; Scarborough v. Aetna Life Ins. Co. (Tex. 1978) 572 S.W.2d 282, 284 [medical treatment means treatment "directed toward a known condition"]; Craig v. Central National Life Insurance Co. (1958) 16 Ill.App.2d 344, 148 N.E.2d 31, 36 ["the origin of plaintiff’s sickness was the date upon which [the doctor] diagnosed the same"].)

The People note Brannick testified Bendovid received medication for "significant mental health symptoms" in jail. They suggest her testimony relying on the antipsychotic medications he received in jail is sufficient.

But the issue is not what...