The test for determining if sanity has been restored under Penal Code1 section 1026.2 is whether the applicant has improved to the extent he or she is no longer a danger to the health and safety of others, including himself or herself. (People v. Allesch (1984) 152 Cal.App.3d 365, 372 [199 Cal.Rptr. 314].) The applicant has the burden of proving by a preponderance of the evidence he or she is no longer a danger. (In re Franklin (1972) 7 Cal.3d 126, 147 [101 Cal.Rptr. 553,496 P.2d 465].)
The psychological experts who testified at Williams's restoration of sanity trial agreed Williams's schizophrenia was in remission due to the antipsychotic medication he was taking. According to Dr. Edward Calix, who for four weeks was Williams's psychologist at the conditional release program, if Williams ceased to take antipsychotic medication he could very well become suicidal. Dr. Calix referred to an episode in 1980 when Williams reported to Center City Hospital because of suicidal ideation.
Dr. Calix also testified that Williams's participation in the program had been rather begrudging, and that he manifested very limited insight into the *Page 1484 necessity for him to maintain on antipsychotic medications. The two experts who recommended Williams's sanity be restored conditioned their recommendation on Williams continuing to take his medication. Both experts testified they would change their recommendations if Williams were to stop taking his medication.2 Based on this evidence and on the holdings inPeople v. De Anda (1980) 114 Cal.App.3d 480 [170 Cal.Rptr. 830] and Cramer v. Tyars (1979) 23 Cal.3d 131 [151 Cal.Rptr. 653,588 P.2d 793], the court instructed the jury to disregard the effects of medication in deciding whether Williams was no longer a danger to himself or others.
In People v. De Anda, supra, 114 Cal.App.3d 480, the defendant was acquitted by reason of insanity of assault with a deadly weapon. The court ordered him committed to the state hospital under section 1026, having found the defendant had not fully recovered his sanity. (Id. at p. 488.) The court based its finding on numerous psychiatric reports and testimony. According to this evidence, the defendant still needed antipsychotic medicine and therapy without which there was a possibility he could become dangerous. (Id. at pp. 485-487.)
On appeal, the court affirmed, stating the evidence supported the trial court's finding that without antipsychotic medication and therapy, there was a possibility the defendant would become dangerous and thus, he had not "`fully recovered his sanity.'" (Id. at p. 490.) "Since the purpose of a commitment under section 1026 is `to protect the defendant and the public during the period necessary to appraise the defendant's present sanity' [citation] psychopharmaceutical restoration of sanity should not be considered a `full' recovery within the meaning of section 1026, subdivision (a). . . ." (Ibid.)
The majority attempts to distinguish De Anda on the ground the standard for release under section 1026 requires full restoration to sanity while release under section 1026.2 only requires a showing the defendant is no longer a danger. However, the basis for disregarding the effect of medication on a person's sanity under section 1026 is the same as that under section 1026.2 — to ensure the safety of the public and the defendant when the defendant is released. (Id. at p. 490; Barnes v.Superior Court, (1986) 186 Cal.App.3d 969, 975 [231 Cal.Rptr. 158] .) Under both sections, the trier of fact must determine the defendant's suitability for unconditional release.
In Cramer v. Tyars, supra, 23 Cal.3d 131, the Supreme Court addressed a similar issue under Welfare and Institutions Code sections 6500-6512 governing *Page 1485 civil commitment of mentally retarded persons. A jury found Luther Tyars was a mentally retarded person who constituted a danger to himself or others. (Id. at pp. 136-137.) The court committed Tyars to the Department of Health for placement in a state hospital. (Ibid.)
On appeal, Tyars challenged the court's failure to instruct the jury as follows: `In determining whether Luther Tyars is a danger to himself or others you may take into account improvement due to medication if it is likely that in the foreseeable future Luther Tyars would be provided with and take needed medication.'" (Id. at p. 142.) The court held such an instruction was properly refused, reasoning: "In seeking such an instruction, appellant's counsel exceeded review of appellant's current mental condition and potential for dangerous behavior and invited consideration of possible future behavior under hypothetical conditions. The pertinent issue under section 6507 is the present `condition or status' of the alleged mentally retarded person. The Legislature has not elected to authorize consideration of the factors of medication, or future changes in the patient's condition." (Ibid.)
Here, as in Tyars, the issue before the jury was whether the individual was presently a danger to himself or others or had the potential to become dangerous. As in Tyars, the jury heard evidence on the individual's current mental condition and potential for dangerous behavior. Neither section 1026.2 nor Welfare and Institutions Code section 6507 authorizes the trier of fact to consider the effect of medication when assessing dangerousness. Thus, the court properly relied on the holding of Tyars in instructing the jury on the analogous issue under section 1026.2.
The majority contends that unlike the instruction rejected inTyars, Williams's requested instruction did not invite speculation. However, the instruction requested by Williams invited the jury to speculate as to whether Williams would continue to take his medication as prescribed in an unsupervised environment.
Williams's proposed instruction was also internally inconsistent in that it stated the sole question the jury was to decide was whether Williams in his present medicated condition presented a danger to himself or others.
The statutory provisions on commitment of persons found not guilty by reason of insanity represent a delicate balance between society's right to be protected from potentially mentally ill and dangerous persons on the one hand and the individual's improvident confinement on the other hand. (Barnes v. SuperiorCourt, supra, 186 Cal.App.3d at p. 975.) Williams has already been judicially determined to have endangered both the public *Page 1486 safety and his own as a result of his mental condition. However, Williams is not confined. He lives independently in the community on an outpatient basis, enjoying as much freedom as is prudent consistent with reasonable protection of himself and the public.
When the sanity of an individual is conditioned on continuation of medication, an unconditional release pursuant to section 1026.2 places the maintenance of sanity solely in the hands of the individual being released. Such a result is clearly not contemplated by section 1026.2 and would not adequately insure the safety of the individual or the public.
I would affirm the judgment.
Respondent's petition for review by the Supreme Court was denied June 23, 1988.