At NGI Extended Commitment Trials Jurors Must Be Instructed On The Issue Of Whether The Person Has Serious Difficulty Controlling Dangerous Behavior

In In re Howard N. (2005) 35 Cal.4th 117, the California Supreme Court held that in order to comport with federal due process principles the extended commitment scheme for minor wards (Welf. & Inst. Code, § 1800, et seq.) must be construed to require proof that the person under commitment has serious difficulty controlling dangerous behavior. Since Howard N. was decided, a number of Courts of Appeal have addressed whether this “control” element applies to not guilty by reason of insanity (NGI) extended commitment proceedings as well.

The First, Third, and Fifth Districts have all concluded that due process compels such a finding at NGI extended commitment proceedings. (People v. Zapisek (2007) 144 Cal.App.4th 1151 [First District]; People v. Galindo (2006) 142 Cal.App.4th 531 [Third District]; People v. Bowers (2006) 145 Cal.App.4th 870 [Fifth District].)

Because all three of these cases involved court trials, none of them offered the occasion to determine whether a corresponding instructional duty in a jury trial existed as well. Division Two of the First District Court of Appeal, however, recently addressed the question of whether instruction on this element is required in a jury trial. In People v. Sudar (A115464), the Court of Appeal held that “the trial court erred in failing to instruct the jury pursuant to Howard N.” that it had to find the insanity acquittee had “‘at the very least, serious difficulty controlling his potentially dangerous behavior.’” The Court of Appeal also concluded that failure to instruct on the “control” element is subject to the Chapman harmless error standard of review applicable to federal constitutional trial errors. Pursuant to that standard, the Court of Appeal found the instructional error in this case non-prejudicial and affirmed the insanity acquittee's extended commitment.

The unanimous opinion was authored by Presiding Justice J. Anthony Kline.

People v. Sudar, no. A115164 (Cal.Ct.App. (1st Dist., Div. Two) filed 12/18/07, ordered published 1/2/2008)