CALCRIM No. 3450 is a long instruction that that sets forth the defendant’s burden of proof on insanity. Its very length and comprehensiveness appear to be what saves it in People v. Thomas, case no. C052849 (3d Dist. Oct. 22, 2007). The instruction includes this paragraph:
If you conclude that at times the defendant was legally sane and other times the defendant was insane, you must assume that he was legally sane when he committed the crime.
Because virtually every mentally ill person has lucid moments, contended the defendant, this language in the instruction essentially directs a finding of sanity.
According to defendant, the instruction “require[d] [the] jury to find [him] sane even though he might have been insane at the time of the crime if at any other time he was sane.”
The court disagrees and affirms, but not before dispatching a nonsensical argument from the state.
The People counter that the italicized portion of the instruction is legally accurate and informs the jury that if there were times when defendant was legally sane and other times when he was legally insane, “it is assumed that he was legally sane when he committed the crimes.” According to the People, this is because “defendant will not have met the burden of demonstrating it is more likely than not he was legally insane when he committed the crime.”
We fail to follow the People’s logic. If the evidence shows that, in the past, there were times when defendant was sane and other times when he was insane, this does not necessarily mean defendant failed to prove he was insane at the time of the offenses. If defendant’s history contains periods of sanity and periods of insanity, defendant will nevertheless have met his burden if he proves the offenses were committed during one of the periods of insanity.
Getting back to the defendant’s contention, the Court of Appeal finds the allegedly faulty language misleading only if considered in isolation. In the context of the entire instruction, however, it finds the danger of misleading the jury negligible:
As indicated, the thrust of CALCRIM No. 3450 is to inform the jury that the burden is on the defendant to prove he was insane at the time of the offenses. This is consistent with Penal Code section 25, subdivision (b). The instruction states that if the jury determines the defendant had a mental disease or defect at any time before he committed the offenses, the jury may conclude that same condition existed at the time of the offenses. It concludes by stating that, if the jury decides the defendant proved it is more likely than not he was insane at the time of the offenses, the jury must return a verdict of not guilty by reason of insanity. Thus, even if the jury was directed to “assume” the defendant was sane, this assumption is subject to defendant presenting evidence to prove otherwise. An assumption of sanity, like an assumption of innocence, is just another way of saying the burden is on the party claiming otherwise to prove it.
I am troubled by the court’s conclusion because I agree with something it says earlier in the opinion:
[N]o good can come from informing the jury that, once evidence has been presented that the defendant was sane at times and insane at other times, it must assume he was sane at the time of the offenses. This assumption existed before evidence was presented. Thus, there is the risk the jury might read the highlighted portion to mean the assumption is irrebuttable.
“No good can come from” the challenged language. In other words, anything that does come from it is not good, and thus presumably prejudicial. There is a downside to the language but no upside. Why keep it?