acted as a reasonable person would in following the treatment plan.]
[A substantial danger of physical harm does not require proof of a recent
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
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 a successive commitment. For an initial commitment as a
condition of parole, give CALCRIM No. 3456, Initial Commitment of Mentally
Disordered Offender as Condition of Parole.
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.
Give the bracketed language in the sentence beginning with “To prove this
allegation” and use the past tense for an on-parole recommitment pursuant to Penal
Code section 2966. For a recommitment after the parole period pursuant to Penal
Code sections 2970 and 2972, omit the bracketed phrase and use the present tense.
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.
The committee found no case law addressing the issue of whether or not instruction
about an affirmative obligation to provide treatment exists.
• Elements and Deﬁnitions. Pen. Code, §§ 2966, 2970, 2972; People v. Merﬁeld
(2007) 147 Cal.App.4th 1071, 1075, fn. 2 [54 Cal.Rptr.3d 834].
DEFENSES AND INSANITY CALCRIM No. 3457