Filed 12/20/18
                   CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                              DIVISION SIX


THE PEOPLE,                                 2d Crim. No. B288633
                                         (Super. Ct. No. 17PT-00942)
     Plaintiff and Respondent,            (San Luis Obispo County)

v.

YOSEF SHAVUII BENDOVID,

     Defendant and Appellant.


       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.




        1   All statutory references are to the Penal Code.
                               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.”




                                 2
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.)
       For an MDO commitment, the defendant must receive 90
days of treatment for his or her severe mental disorder “in the




                                 3
year before being paroled.” (People v. Sheek (2004) 122
Cal.App.4th 1606, 1610; § 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


      2 “An offender is eligible for commitment under the MDO
Act if all of the following six factors are met: (1) the prisoner has
a severe mental disorder; (2) the prisoner used force or violence in
committing the underlying offense; (3) the prisoner had a
disorder which caused or was an aggravating factor in
committing the offense; (4) the disorder is not in remission or
capable of being kept in remission in the absence of treatment; (5)
the prisoner was treated for the disorder for at least 90 days in
the year before being paroled; and (6) because of the disorder, the
prisoner poses a serious threat of physical harm to other people.”
(People v. Sheek, supra, 122 Cal.App.4th at p. 1610.)


                                 4
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.) 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




                                  5
disorder during the relevant treatment period. (People v. Sheek,
supra, 122 Cal.App.4th at p. 1611.)
       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
[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 [“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.) “[I]t is hard to see how a
doctor can provide treatment ‘for’ a condition without knowing




                                 6
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. 1996) 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. (Ill.Ct.App. 1958) 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 medications Bendovid received; it
is what disorders he was treated for. Brannick conceded that
Bendovid had not been diagnosed in jail for a delusional disorder.
She said the two medications he received there, Abilify and
Depakene, have “mood stabilizing” benefits. (Italics added.) The
prosecutor said the jail records show he was diagnosed as having
a “mood disorder.” (Italics added.)
      But the issue is not treatment for a mood disorder; it is
treatment for the delusional disorder. Brannick relied on the jail
medical records as her source of information about what
Bendovid was treated for. But she was not able to point to any
portion of those detailed records to show any notation by the jail
doctors that they medicated him to treat a delusional disorder.
      Mood and personality disorders are some of the more
common mental disorders. (Kansas v. Crane (2002) 534 U.S. 407,




                                 7
412 [“40%-60% of the male prison population is diagnosable with
Antisocial Personality Disorder”].) “Depression or mood disorders
are the most common reasons people seek mental health
treatment.” (Tunick, Major Depression (2009) West Virginia
Lawyer 48, at p. 2; DSM-5, supra, at p. 824 [“mood” involves a
“pervasive and sustained emotion,” which may include depression
or anxiety]; People v. Robinson (1999) 72 Cal.App.4th 421, 427-
428 [a personality disorder is a mental illness but some doctors
do not view it as “a major mental disorder”].) A personality
disorder involves “impairment in personality functioning,”
difficulties in “identity, self-direction, empathy, intimacy,” a
“wide range of negative emotions,” and the inability to get along
with others. (DSM-5, at p. 770.)
       By contrast, “[t]he diagnosis of Delusional Disorder refers
to a specific mental illness” which is “uncommon.” (United States
v. Ruiz-Gaxiola (9th Cir. 2010) 623 F.3d 684, 688, fn. 1.) It
involves the “presence of one (or more) delusions with a duration
of 1 month or longer.” (DSM-5, supra, at p. 90.) Its “diagnostic
criteria” is unique, including a “disturbance” which “is not
attributable to the psychological effects of a substance or another
medical condition and is not better explained by another mental
disorder . . . .” (Ibid.)
       Brannick testified Bendovid received Abilify and Depakene.
But those are medications commonly used to treat mood
disorders. (Carson v. Berryhill (S.D.Tex. 2018) 286 F.Supp.3d
818, 821, fn. 7; Miskovitch v. Hostoffer (W.D.Pa. 2010) 721
F.Supp.2d 389, 398 [“Depakene, a mood stabilization drug”]; see
also In re R.V. (2015) 61 Cal.4th 181, 215 [citing expert testimony
that Abilify “is typically used for the treatment of mood




                                8
disorders”].) Brannick’s testimony confirmed the mood
stabilizing benefit of these drugs.
       But treating a delusional disorder involves greater
challenges because this disorder is often resistant to treatment
by medications. (United States v. Ruiz-Gaxiola, supra, 623 F.3d
at p. 701, fn. 11; United States v. Bush (4th Cir. 2009) 585 F.3d
806, 817; United States v. Ghane (8th Cir. 2004) 392 F.3d 317,
319.) Consequently, the progress notes of a doctor treating this
disorder should contain notations on how the medications are
impacting the delusional thoughts or the side effects on a
delusional patient. (See, e.g., DSM-5, supra, at p. 90; United
States v. Gillenwater (9th Cir. 2014) 749 F.3d 1094, 1104.)
       But the jail treatment progress notes do not contain such
references. Instead, they reflect: 1) treatment for Bendovid’s
fear that “prison is dangerous,” 2) assessment of “his emotional
stage” and his request for “emotional support,” 3) concerns about
him becoming “depressed or anxious,” 4) his progress in “focusing
in the future and feeling positive at the fact that his 2 [year]
sentence is at 80% and he has already 500 [plus] of time served
credit,” 5) monitoring of his “good attitude,” his “smiling and
laughing at appropriate times,” 6) monitoring of his progress in
“being less scared about going to prison,” 7) guidance to him on
“better decision making skills,” and 8) continuation of “supportive
therapy” to “maintain his suicidal risk low.” They reflect that he
was “stable” on his current medication regimen, his “mood” was
“alright, ” and he “tolerated treatment well.”
       Brannick was not a treating doctor. She interviewed
Bendovid for only 45 minutes. The jail doctors said Bendovid had
suicidal thoughts. Brannick said she could not say “for sure”
whether those “suicidal ideations” were related to “distress




                                 9
caused by his qualifying disorder,” because she “wasn’t treating
him at this time.” She said “suicidal ideation” is “not a
component of delusional disorder specifically.” Bendovid’s
counsel claimed his suicidal ideations were unrelated to any
delusional disorder. The jail doctors determined the cause of his
suicidal mood was his fear of going to prison. Counsel referred to
those records and asked Brannick, “Does that sound like a
delusion?” She responded, “That doesn’t sound like a delusion to
me.”
       Brannick did not have complete knowledge of the jail
medical records. An April 5th medical document contained the
jail doctors’ diagnoses. When asked if that document was
Bendovid’s “psych screening,” Brannick said, “I don’t know if it’s
his psych screen or not.” She did not know how the jail
“documents their notes.” She did not claim she had ever
contacted the jail doctors to learn the foundational facts for his
diagnosis and treatment listed in their medical charts.
       When asked if the jail doctors were treating Bendovid
because of his mood of wanting to commit suicide, Brannick said,
“I’m not sure that’s what the entirety of his treatment was related
to given the medication that he’s prescribed.” (Italics added.)
She speculated that because he received Abilify and Depakene,
he may have been treated for something other than what the jail
doctors said he was treated for.
       But an expert’s “speculation is not evidence” and it cannot
support “an involuntary commitment.” (People v. Wright, supra,
4 Cal.App.5th at p. 546.) Brannick’s speculation had “no
evidentiary value.” (Bushling v. Fremont Medical Center (2004)
117 Cal.App.4th 493, 510.) She provided no “reasoned
explanation” regarding how receiving the two drugs to treat his




                                10
diagnosed disorders meant that he was treated for something
else, and she was not able to identify that something else. (Ibid.)
The source for her claims was the jail treatment records, but they
provided no foundational facts to support her conclusion. (Ibid.)
A medical opinion based solely on a “ ‘ “guess, surmise or
conjecture” ’ ” does not suffice. (In re Anthony C. (2006) 138
Cal.App.4th 1493, 1504.) Moreover, as Bendovid notes, Brannick
confirmed that the two drugs he received in jail were for mood
disorders, which is exactly what the jail doctors said he was being
treated for.
       In the People’s case in chief, the prosecutor did not ask
Brannick if Bendovid was treated for a delusional disorder in jail.
He avoided the key issue and only asked whether Bendovid was
“undergoing treatment for a mental health issue.” Brannick’s
affirmative answer to this question was not sufficient. Her
responses that Bendovid was treated for “a mental health issue”
or “mental health symptoms” were ambiguous and irrelevant.
She was not able to specifically testify that he was treated for his
delusional disorder, which is the relevant issue. The People may
not rely on ambiguity in place of evidence (People v. Alkow (1950)
97 Cal.App.2d 797, 803), and there is no substantial evidence
where the expert relies on speculation. (People v. Wright, supra,
4 Cal.App.5th at pp. 545-546.)
       “An individual’s right to liberty is too sacred a premise of
our ordered democracy . . . to have it rendered almost
meaningless by a cursory interview, brief review of medical
charts and an inconclusive, tentative conclusion.” (In re MH
2007-001236 (Ariz.Ct.App. 2008) 204 P.3d 418, 427.)
       The jail doctors were the treating doctors. Their medical
records constitute the evidence that unequivocally shows what




                                11
they treated him for. (§ 2981; Gunn v. Employment Development
Dept. (1979) 94 Cal.App.3d 658, 664, fn. 6 [there is “no better
evidence of the state of one’s health” than the opinion of the
treating doctor].) The jail medical records are the “reliable and
trustworthy” record of his treatment there. (Loper v. Morrison
(1944) 23 Cal.2d 600, 608.) Those records show the medications
they used were to treat the mood and personality disorders, and
it is undisputed that those two disorders were not the severe
mental disorder in this case.
       The People must prove Bendovid was treated for the severe
mental disorder that subjects him to the MDO commitment.
(People v. Sheek, supra, 122 Cal.App.4th at p. 1611.) Proof that
he was treated for other mental disorders is not sufficient. (Ibid.)
The statute is mandatory. “Section 2962, subdivision (c)
specifically refers to treatment of ‘the’ mental disorder, not ‘a’
mental disorder.” (People v. Garcia, supra, 127 Cal.App.4th at
p. 567.) Consequently, mental health treatment for some mental
disorders may not be substituted in place of treatment for the
severe mental disorder. (Ibid.; Sheek, at p. 1611.)
       Here the People “attempt to bootstrap the treatment
defendant received” for the mood and borderline personality
disorders in place of treatment for the delusional disorder.
(People v. Sheek, supra, 122 Cal.App.4th at p. 1611.) “This
position cannot be reconciled with either the letter or the spirit of
the statute, which provides that ‘[t]he prisoner has been in
treatment for the severe mental disorder . . . .’” (Ibid.) “Given
that the People failed to offer any proof that defendant’s
[delusional disorder] was diagnosed before [May 20, 2017], it
necessarily follows that defendant was not treated for that




                                 12
disorder” in jail. (Ibid.) Consequently, the 90-day treatment
requirement was not satisfied. (Ibid.)
                           DISPOSITION
      The judgment (order) is reversed.
      CERTIFIED FOR PUBLICATION.


                                    GILBERT, P. J.
We concur:



             PERREN, J.



             TANGEMAN, J.




                               13
                   Ginger E. Garrett, Judge

           Superior Court County of San Luis Obispo

                ______________________________



            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.




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