In proceedings to extend mentally disordered offender’s (MDO) commitment, trial court erred by instructing the jury to consider whether MDO represented a substantial danger if released into the community unsupervised. A jury found a petition to extend Mendez’s commitment as an MDO true and his commitment was extended. During the proceedings, the court instructed the jury with a modified version of CALCRIM No. 3457, which required the prosecution to prove in part that, because of his severe mental disorder, Mendez “presently represents a substantial danger of physical harm to others if released into the community unsupervised.” The court added the “if released into the community unsupervised” language at the prosecution’s request. On appeal, Mendez argued that the modification to CALCRIM No. 3457 impermissibly directed the jury to consider the consequences of the verdict. Held: Reversed. In MDO proceedings it is not proper for the jury to consider what disposition of the defendant may be made or what treatment he may receive. The MDO statutory criteria requires the jury to decide whether the person presents a substantial danger of physical harm to others given his present mental condition, not whether the person will be dangerous if released unsupervised. (Pen. Code, § 2972, subd. (c).) Here, the modified language in the instruction implied the defendant would be released unsupervised unless the jury found he should be recommitted, and expressly directed the jury to base its determination on that hypothetical outcome. The error in instructing the jury to consider the consequences of its verdict was exacerbated by the modification of the verdict forms and the prosecution’s extensive argument about the potential consequences of the jury’s verdict. Because the evidence regarding Mendez’s dangerousness was equivocal, the error was not harmless.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A149910.PDF