CALCRIM No. 3450. Insanity: Determination, Effect of Verdict (Pen. Code, §§ 25, 29.8)
Judicial Council of California Criminal Jury Instructions (2025 edition)
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C. INSANITY AND CIVIL COMMITMENTS
3450.Insanity: Determination, Effect of Verdict (Pen. Code, §§ 25,
29.8)
You have found the defendant guilty of <insert crime[s]>.
Now you must decide whether (he/she) was legally insane when (he/she)
committed the crime[s].
The defendant must prove that it is more likely than not that (he/she)
was legally insane when (he/she) committed the crime[s].
The defendant was legally insane if:
1. When (he/she) committed the crime[s], (he/she) had a mental
disease or defect;
AND
2. Because of that disease or defect, (he/she) was incapable of
knowing or understanding the nature and quality of (his/her) act
or was incapable of knowing or understanding that (his/her) act
was morally or legally wrong.
Do not base a finding of not guilty by reason of insanity solely on the
basis of a personality disorder, adjustment disorder, seizure disorder, or
an abnormality of personality or character made apparent only by a
series of criminal or antisocial acts.
[Special rules apply to an insanity defense involving drugs or alcohol.
Addiction to or abuse of drugs or intoxicants, by itself, does not qualify
as legal insanity. This is true even if the intoxicants cause organic brain
damage or a settled mental disease or defect that lasts after the
immediate effects of the intoxicants have worn off. Likewise, a temporary
mental condition caused by the recent use of drugs or intoxicants is not
legal insanity.]
[If the defendant suffered from a settled mental disease or defect caused
by the long-term use of drugs or intoxicants, that settled mental disease
or defect combined with another mental disease or defect may qualify as
legal insanity. A settled mental disease or defect is one that remains after
the effect of the drugs or intoxicants has worn off.]
You may consider any evidence that the defendant had a mental disease
or defect before the commission of the crime[s]. If you are satisfied that
(he/she) had a mental disease or defect before (he/she) committed the
crime[s], you may conclude that (he/she) suffered from that same
condition when (he/she) committed the crime[s]. You must still decide
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whether that mental disease or defect constitutes legal insanity.
[If you find the defendant was legally insane at the time of (his/her)
crime[s], (he/she) will not be released from custody until a court finds
(he/she) qualifies for release under California law. Until that time (he/
she) will remain in a mental hospital or outpatient treatment program, if
appropriate. (He/She) may not, generally, be kept in a mental hospital or
outpatient program longer than the maximum sentence available for (his/
her) crime[s]. If the state requests additional confinement beyond the
maximum sentence, the defendant will be entitled to a new sanity trial
before a new jury. Your job is only to decide whether the defendant was
legally sane or insane at the time of the crime[s]. You must not speculate
as to whether (he/she) is currently sane or may be found sane in the
future. You must not let any consideration about where the defendant
may be confined, or for how long, affect your decision in any way.]
[You may find that at times the defendant was legally sane and at other
times was legally insane. You must determine whether (he/she) was
legally insane when (he/she) committed the crime.]
[If you conclude that the defendant was legally sane at the time (he/she)
committed the crime[s], then it is no defense that (he/she) committed the
crime[s] as a result of an uncontrollable or irresistible impulse.]
If, after considering all the evidence, all twelve of you conclude the
defendant has proved that it is more likely than not that (he/she) was
legally insane when (he/she) committed the crime[s], you must return a
verdict of not guilty by reason of insanity.
New January 2006; Revised April 2008, October 2010, August 2014, August 2015,
September 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on insanity when the defendant has
entered a plea of not guilty by reason of insanity. (Pen. Code, § 25.)
Give the bracketed paragraph that begins with “Special rules apply” when the sole
basis of insanity is the defendant’s use of intoxicants. (Pen. Code, § 29.8; People v.
Robinson (1999) 72 Cal.App.4th 421, 427-428 [84 Cal.Rptr.2d 832].) If the
defendant’s use of intoxicants is not the sole basis or causative factor of insanity,
but rather one factor among others, give the bracketed paragraph that begins with
“If the defendant suffered from a settled mental.” (Id. at p. 430, fn. 5.)
Do not give CALCRIM No. 224, Circumstantial Evidence: Suffıciency of Evidence,
or CALCRIM No. 225, Circumstantial Evidence: Intent or Mental State. These
instructions have “no application when the standard of proof is preponderance of the
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evidence.” (People v. Johnwell (2004) 121 Cal.App.4th 1267, 1274 [18 Cal.Rptr.3d
286].)
There is no sua sponte duty to inform the jury that an insanity verdict would result
in the defendant’s commitment to a mental hospital. However, this instruction must
be given on request. (People v. Moore (1985) 166 Cal.App.3d 540, 556 [211
Cal.Rptr. 856]; People v. Kelly (1992) 1 Cal.4th 495, 538 [3 Cal.Rptr.2d 677, 822
P.2d 385].)
If the court conducts a bifurcated trial on the insanity plea, the court must also give
the appropriate post-trial instructions such as CALCRIM No. 3550, Pre-Deliberation
Instructions, CALCRIM No. 222, Evidence, and CALCRIM No. 226, Witnesses.
(See In re Ramon M. (1978) 22 Cal.3d 419, 427, fn. 10 [149 Cal.Rptr. 387, 584
P.2d 524].) These instructions may need to be modified.
AUTHORITY
• Instructional Requirements. Pen. Code, §§ 25, 29.8; People v. Skinner (1985) 39
Cal.3d 765 [217 Cal.Rptr. 685, 704 P.2d 752].
• Burden of Proof. Pen. Code, § 25(b).
• Commitment to Hospital. Pen. Code, §§ 1026, 1026.5; People v. Moore (1985)
166 Cal.App.3d 540, 556 [211 Cal.Rptr. 856]; People v. Kelly (1992) 1 Cal.4th
495, 538 [3 Cal.Rptr.2d 677, 822 P.2d 385].
• Excluded Conditions. Pen. Code, § 29.8.
• Anti-Social Acts. People v.Fields (1983) 35 Cal.3d 329, 368-372 [197 Cal.Rptr.
803, 673 P.2d 680]; People v. Stress (1988) 205 Cal.App.3d 1259, 1271 [252
Cal.Rptr. 913].
• Long-Term Substance Use. People v. Robinson (1999) 72 Cal.App.4th 421, 427
[84 Cal.Rptr.2d 832].
• This Instruction Upheld. People v. McCarrick (2016) 6 Cal.App.5th 227,
250-252 [210 Cal.Rptr.3d 838] [delusion also may negate premeditation and
deliberation].
RELATED ISSUES
Bifurcated Proceedings
The defendant has a right to bifurcated proceedings on the questions of sanity and
guilt. (Pen. Code, § 1026.) When the defendant enters both a “not guilty” and a “not
guilty by reason of insanity” plea, the defendant must be tried first with respect to
guilt. If the defendant is found guilty, he or she is then tried with respect to sanity.
The defendant may waive bifurcation and have both guilt and sanity tried at the
same time. (Pen. Code, § 1026(a).)
Extension of Commitment
The test for extending a person’s commitment is not the same as the test for
insanity. (People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 490 [284
Cal.Rptr. 601].) The test for insanity is whether the accused “was incapable of
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knowing or understanding the nature and quality of his or her act or of
distinguishing right from wrong at the time of the commission of the offense.” (Pen.
Code, § 25(b); People v. Skinner (1985) 39 Cal.3d 765, 768 [217 Cal.Rptr. 685, 704
P.2d 752].) In contrast, the standard for recommitment under Penal Code section
1026.5, subdivision (b), is whether a defendant, “by reason of a mental disease,
defect, or disorder represents a substantial danger of physical harm to others.”
(People v. Superior Court, supra, 233 Cal.App.3d at pp. 489-490; People v. Wilder
(1995) 33 Cal.App.4th 90, 99 [39 Cal.Rptr.2d 247].)
Legal and Moral Wrong
The wrong contemplated by the two-part insanity test refers to both the legal wrong
and the moral wrong. If the defendant appreciates that his or her act is criminal but
does not think it is morally wrong, he or she may still be criminally insane. (See
People v. Skinner (1985) 39 Cal.3d 765, 777-784 [217 Cal.Rptr. 685]; see also
People v. Stress (1988) 205 Cal.App.3d 1259, 1271-1274 [252 Cal.Rptr. 913].)
Temporary Insanity
The defendant’s insanity does not need to be permanent in order to establish a
defense. The relevant inquiry is the defendant’s mental state at the time the offense
was committed. (People v. Kelly (1973) 10 Cal.3d 565, 577 [111 Cal.Rptr. 171, 516
P.2d 875].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 9-16,
18-20.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.02 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 86, Insanity
Trial, §§ 86.01A, 86.04 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 124,
Jurisdiction and Disposition Hearings, § 124.04 (Matthew Bender).
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© Judicial Council of California.
