Sheek

The People contend that the trial court lacked jurisdiction to grant defendant’s Penal Code section 2966, subdivision (b), petition on the ground of insufficiency of evidence without conducting a jury trial and erred as a matter of law in granting the petition.

FACTS AND PROCEDURAL BACKGROUND

Petitioner filed a petition under section 2966, subdivision (b) challenging the Board of Prison Terms’ certification that he met all six criteria for commitment for treatment as a condition of parole under the Mentally Disordered Offender Act (MDO Act, § 2960 et seq.). Before trial, defendant filed a motion in limine on the ground of insufficiency of evidence as to the MDO criterion requiring 90 days of treatment for the severe mental disorder in the year prior to parole or release. The trial court required the People to make an offer of proof concerning that criterion. The trial court conducted a hearing under Evidence Code section 402, at which the People presented the testimony of Dr. Mendel Feldsher, a psychiatrist who had evaluated defendant to determine whether he met the requirements for certification as an MDO.

Dr. Feldsher concluded that defendant suffered from two mental…