California Criminal Jury Instructions (CALCRIM) (2017)

3456. Initial Commitment of Mentally Disordered Offender as Condition of Parole

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3456.Initial Commitment of Mentally Disordered Offender as
Condition of Parole
The petition alleges that <insert name of respondent> is a
mentally disordered offender.
To prove this allegation, the People must prove beyond a reasonable
doubt that at the time of (his/her) hearing before the Board of Parole
1. (He/She) was convicted of <specify applicable
offense(s) from Penal Code section 2962, subdivision (e)(2)> and
received a prison sentence for a fixed period of time;
2. (He/She) had a severe mental disorder;
3. The severe mental disorder was one of the causes of the crime
for which (he/she) was sentenced to prison or was an aggravating
factor in the commission of the crime;
4. (He/She) was treated for the severe mental disorder in a state or
federal prison, a county jail, or a state hospital for 90 days or
more within the year before (his/her) parole release date;
5. The severe mental disorder either was not in remission, or could
not be kept in remission without treatment;
6. Because of (his/her) severe mental disorder, (he/she) represented
a substantial danger of physical harm to others.
Asevere mental disorder is an illness or disease or condition that
substantially impairs the person’s thought, perception of reality,
emotional process, or judgment; or that grossly impairs his or her
behavior; or that demonstrates evidence of an acute brain syndrome for
which prompt remission, in the absence of treatment, is unlikely. [It
does not include (a personality or adjustment disorder[,]/ [or]
epilepsy[,]/ [or] mental retardation or other developmental disabilities[,]/
[or] addiction to or abuse of intoxicating substances).]
Remission means that the external signs and symptoms of the severe
mental disorder are controlled by either psychotropic medication or
psychosocial support.
[A severe mental disorder cannot be kept in remission without treatment
if during the year before the Board of Parole hearing, [on
<insert date of hearing, if desired>,the person:
<Give one or more alternatives, as applicable>
[1. Was physically violent except in self-defense; [or]]
[2. Made a serious threat of substantial physical harm upon the
person of another so as to cause the target of the threat to
reasonably fear for his or her safety or the safety of his or her
immediate family; [or]]
[3. Intentionally caused property damage; [or]]
[4. Did not voluntarily follow the treatment plan.]]
[A person has voluntarily followed the treatment plan if he or she has
acted as a reasonable person would in following the treatment plan.]
[A substantial danger of physical harm does not require proof of a recent
overt act.]
You will receive [a] verdict form[s] on which to indicate your finding
whether the allegation that <insert name of respondent> is
a mentally disordered offender is true or not true. To find the allegation
true or not true, all of you must agree. You may not find it to be true
unless all of you agree the People have proved it beyond a reasonable
New December 2008; Revised August 2014
Instructional Duty
The court has a sua sponte duty to instruct the jury about the basis for a finding
that a respondent is a mentally disordered offender.
Give this instruction for an initial commitment as a condition of parole. For
recommitments, give CALCRIM No. 3457, Extension of Commitment as Mentally
Disordered Offender.
The court also must give CALCRIM No. 219, Reasonable Doubt in Civil
Proceedings, CALCRIM No. 222, Evidence, CALCRIM No. 226, Witnesses,
CALCRIM No. 3550, Pre-Deliberation Instructions, and any other relevant post-
trial instructions. These instructions may need to be modified.
Case law provides no direct guidance about whether a finding of an enumerated act
is necessary to show that the disorder cannot be kept in remission without
treatment or whether some alternative showing, such as medical opinion or non-
enumerated conduct evidencing lack of remission, would suffice. One published
case has said in dictum that “the option of ‘cannot be kept in remission without
treatment’ requires a further showing that the prisoner, within the preceding year,
has engaged in violent or threatening conduct or has not voluntarily followed the
treatment plan.” (People v. Buffıngton (1999) 74 Cal.App.4th 1149, 1161, fn. 4 [88
Cal.Rptr.2d 696]). The Buffıngton case involved a sexually violent predator.
• Elements and Definitions. Pen. Code, §§ 2962, 2966(b); People v. Merfield
(2007) 147 Cal.App.4th 1071, 1075, fn. 2 [54 Cal.Rptr.3d 834].
• Unanimous Verdict, Burden of Proof. Pen. Code, § 2966(b); Conservatorship
of Roulet (1979) 23 Cal.3d 219, 235 [152 Cal.Rptr. 425, 590 P.2d 1] [discussing
conservatorship proceedings under the Lanterman-Petris-Short Act and civil
commitment proceedings in general].
• Institutions That May Fulfill the 90-Day Treatment Requirement. Pen. Code,
§ 2981.
• Treatment Must Be for Serious Mental Disorder Only. People v. Sheek (2004)
122 Cal.App.4th 1606, 1611 [19 Cal.Rptr.3d 737].
• Definition of Remission. Pen. Code, § 2962(a).
• Need for Treatment Established by One Enumerated Act. People v. Burroughs
(2005) 131 Cal.App.4th 1401, 1407 [32 Cal.Rptr.3d 729].
• Evidence of Later Improvement Not Relevant. Pen. Code, § 2966(b); People v.
Tate (1994) 29 Cal.App.4th 1678, 1683 [35 Cal.Rptr.2d 250].
• Board of Parole Hearings. Pen. Code, § 5075.
• This Instruction Cited As Authority With Implicit Approval. People v.
Harrison (2013) 57 Cal.4th 1211, 1230 [164 Cal.Rptr.3d 167, 312 P.3d 88].
Secondary Sources
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, §§ 638,