MDO commitment order reversed where evidence was insufficient to prove that appellant received 90 days of treatment specific to the diagnosed severe mental disorder. In 2015, Bendovid was convicted of assault with force likely to produce great bodily injury and sentenced to two years state prison. In August 2017, the Board of Parole Hearings classified Bendovid as a mentally disordered offender (MDO), which Bendovid challenged. At the court trial, medical records showed that, after his conviction, Bendovid was treated at the county jail for mood and personality disorders. Bendovid was subsequently diagnosed and treated for a delusional disorder at the state prison for a period of 75 days. Bendovid argued the People could not prove 90 days of treatment within the year prior to his parole or release as required under Penal Code section 2962. Nevertheless, the trial court found Bendovid met the criteria for an MDO commitment. Held: Reversed. For an MDO commitment, in addition to other factors, the People must show that the defendant has a severe mental disorder, and that he received 90 days of treatment for his severe mental disorder in the year before being paroled. In this case, the prosecution was relying on the delusional disorder as the severe mental disorder. There was no dispute that Bendovid received 75 days of treatment in prison for the delusional disorder. Even though the People conceded that the jail did not diagnose Bendovid as having a delusional disorder, they contended that the trial court could reasonably find that he received at least 15 days of treatment for that disorder in jail. The People’s expert testified that because Bendovid received antipsychotic medications in jail for “significant mental health symptoms,” Bendovid may have been treated for a mental disorder other than what the jail doctors said he was treated for. An expert’s speculation is not evidence and it cannot support an involuntary commitment. The People may not rely on ambiguity in place of evidence, and there is no substantial evidence where the expert relies on speculation. The People were unable to prove that Bendovid was treated for the severe mental disorder that subjected him to the MDO commitment, and consequently, the 90-day treatment requirement was not satisfied.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B288633.PDF