CALCRIM No. 3452. Determining Restoration to Sanity (Pen. Code, § 1026.2)
Judicial Council of California Criminal Jury Instructions (2023 edition)
Download PDF
3452.Determining Restoration to Sanity (Pen. Code, § 1026.2)
The defendant was previously found not guilty of a crime and committed
to a mental health facility. You must decide whether the defendant
currently poses a danger to the health and safety of others as a result of
a mental disease, defect, or disorder. That is the only purpose of this
proceeding. You are not being asked to decide the defendant’s mental
condition at any other time or whether (he/she) is guilty of any crime.
<Alternative A - defendant’s ability to continue unsupervised self-medication
not an issue>
[The law presumes that the defendant currently poses a danger to the
health and safety of others as a result of a mental disease, defect, or
disorder. In order to overcome this presumption, the defendant has the
burden of proving that it is more likely than not that (he/she) no longer
poses such a danger.]
<Alternative B - defendant’s ability to continue unsupervised self-medication
an issue>
[The law presumes that the defendant currently poses a danger to the
health and safety of others as a result of a mental disease, defect, or
disorder. In order to overcome this presumption, the defendant has the
burden of proving that it is more likely than not that:
1. (He/She) is no longer a danger to the health and safety of others
because (he/she) is now taking prescribed medicine that controls
(his/her) mental condition;
AND
2. (He/She) will continue to take that medicine in an unsupervised
environment.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the standard for determining if a
defendant has been restored to sanity.
Revise and give CALCRIM No. 3550, Pre-Deliberation Instructions, as follows:
replace the paragraph that begins with “Your verdict [on each count and any special
finding(s)] must be unanimous” with “Nine or more of you must agree on your
verdict.” (In re Franklin (1972) 7 Cal.3d 126, 149 [101 Cal.Rptr. 553, 496 P.2d
465].) In addition, give any other relevant post-trial instructions, such as CALCRIM
1027
No. 222, Evidence, or CALCRIM No. 226, Witnesses.
Do not give CALCRIM No. 224, Circumstantial Evidence: Suffıciency of Evidence,
or CALCRIM No. 225, Circumstantial Evidence: Intent or Mental State. These
instructions have “no application when the standard of proof is preponderance of the
evidence.” (People v. Johnwell (2004) 121 Cal.App.4th 1267, 1274 [18 Cal.Rptr.3d
286].)
Do not give this instruction in conjunction with proceedings under Penal Code
sections 2970 and 2972. (People v. Noble (2002) 100 Cal.App.4th 184, 190 [121
Cal.Rptr.2d 918].)
AUTHORITY
• Instructional Requirements. Pen. Code, § 1026.2.
• Unsupervised Self-Medication. People v. Williams (1988) 198 Cal.App.3d 1476,
1481-1482 [244 Cal.Rptr. 429].
• Presumption of Continuing Insanity. In re Franklin (1972) 7 Cal.3d 126, 141
[101 Cal.Rptr. 553, 496 P.2d 465] [interpreting precursor statute].
• Three-Fourths Verdict and Defendant’s Burden of Proof. In re Franklin (1972) 7
Cal.3d 126, 149 [101 Cal.Rptr. 553, 496 P.2d 465]; People v. Mapp (1983) 150
Cal.App.3d 346, 351 [198 Cal.Rptr. 177].
RELATED ISSUES
Court May Order a Directed Verdict
The court may order a directed verdict when insufficiency of the evidence warrants
it. (People v. Mapp (1983) 150 Cal.App.3d 346, 351 [198 Cal.Rptr. 177].)
Both Parties Have Right to Jury Trial on Issue of Restoration of Sanity
Even if the defendant waives the right to a jury on the issue of restoration of sanity,
the prosecution may still assert its right to a jury. (People v. Superior Court
(Almond) (1990) 219 Cal.App.3d 607, 612 [268 Cal.Rptr. 375].)
No Right to Jury Trial on First-Stage Hearing on Outpatient Treatment
Even though success at the first-stage hearing is a necessary step on the way to
eventual release, equal protection does not require that a criminal defendant who has
been committed has a right to a jury at such a hearing. (People v. Tilbury (1991) 54
Cal.3d 56, 67 [284 Cal.Rptr. 288, 813 P.2d 1318].)
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial,
§§ 803-813.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 86, Insanity
Trial, § 86.10[4], [7] (Matthew Bender).
CALCRIM No. 3452 DEFENSES AND INSANITY
1028
© Judicial Council of California.
