Section 3457 | CALCRIM (Jury Instructions)

[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 of
whether the allegation that
<insert name of respondent> is
an offender with a mental health disorder 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 August 2014, September 2017, September 2020,
September 2022
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 an offender with a mental health disorder.
Give this instruction for an initial commitment as a condition of parole. For
recommitments, give CALCRIM No. 3457, Extension of Commitment as Offender
With A Mental Health Disorder.
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 posttrial
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.
CALCRIM No. 3456
DEFENSES AND INSANITY
1046

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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 That Was Basis For Initial
Commitment. People v. Tor