F 4.18

F 4.18 n1 MDSO: Burden Of Proof. (WI 6316.2)

CJ 4.18 properly states that the prosecution has the burden of proving beyond a reasonable doubt the elements necessary for an MDSO extension or recommitment. However, the CALJIC instruction does not instruct the jury on the presumption of innocence. (I.e., the defendant must be presumed to be not an MDSO.) In People v. Hanshew DEPUBLISHED (92) 3 CA4th 1453 [5 CR2d 172], the court of appeal held that it was not error to refuse an instruction upon this presumption. However, the court also made it clear that “it would not be error to give such an instruction in addition to the instruction on the People’s burden of proof.” [Original emphasis.] (5 CR2d at 174-75.) The court recognized that a defendant in a recommitment proceeding is laboring under a disability not faced by a defendant in a criminal trial — in an MDSO recommitment proceeding the jurors may actually presume that incompetency continues to exist. Hence, the court of appeal concluded that the “better practice” in future recommitment proceedings would be to instruct upon the presumption of innocence upon request. (Ibid.)

F 4.18 n2 MDSO: Instruction Regarding Prior Commitment And Circumstantial Evidence (WI 6316.2).

In concluding that there was no error in failing to instruct upon the presumption of innocence, the Hanshew court identified several other appropriate instructions which were given. (People v. Hanshew DEPUBLISHED (92) 3 CA4th 1453 [5 CR2d 172].) These instructions included the following: 1) that the jury must not be biased against the defendant because he was committed to a mental hospital; 2) that the defendant’s prior commitment and the circumstances relating thereto are not evidence of the truth of the MDSO allegation and the jury must not infer or assume from any or all of the circumstances that the allegation is more likely to be true than not true; 3) “A finding that the petition is true in this matter may not be based on circumstantial evidence unless the proved circumstances are not only consistent with the theory that the respondent has a mental disease, defect or disorder and as a result of such mental condition is predisposed to the commission of sexual crimes and represents a substantial danger of physical harm to others, but, also cannot be reconciled with any other rational conclusion.” (Hanshew DEPUBLISHED 5 CR2d at 174-75.)

F 4.18 n3 Improper To Refer To The Prosecution as “The People.”

Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”