CALCRIM No. 3457. Extension of Commitment as Mentally Disordered Offender (Pen. Code, § 2970)

Judicial Council of California Criminal Jury Instructions (2020 edition)

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3457.Extension of Commitment as Mentally Disordered Offender
(Pen. Code, § 2970)
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 Prison
Terms]:
1. (He/She) (has/had) a severe mental disorder;
2. The severe mental disorder (is/was) not in remission or (cannot/
could not) be kept in remission without continued treatment;
AND
3. Because of (his/her) severe mental disorder, (he/she) (presently
represents/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 period of the year prior to <insert the date the
trial commenced> 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
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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
doubt.
New December 2008; Revised September 2017
BENCH NOTES
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 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.
AUTHORITY
• 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].
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• Unanimous Verdict, Burden of Proof. Pen. Code, § 2972(a); 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].
• 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).
• Recommitment Must Be for the Same Disorder As That for Which the Offender
Received Treatment. People v. Garcia (2005) 127 Cal.App.4th 558, 565 [25
Cal.Rptr.3d 660].
• Proof of Recent Overt Act Not Required. Pen. Code, § 2962(g).
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 767.
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