CO Code § 16-8-105 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 8 - Insanity - Release|Part 1 - General Provisions|§ 16-8-105. Procedure After Plea for Offenses Committed Before July 1, 1995

  When a plea of not guilty by reason of insanity is accepted, the court shall forthwith commit the defendant for a sanity examination, specifying the place and period of commitment.    Upon receiving the report of the sanity examination, the court shall immediately set the case for trial to a jury on the issue raised by the plea of not guilty by reason of insanity. In all cases except class 1, class 2, and class 3 felonies, the defendant may waive jury trial by an express written instrument or announcement in open court appearing of record. If the court and the district attorney consent, jury trial may be waived in a class 1, class 2, or class 3 felony case. Every person is presumed to be sane; but, once any evidence of insanity is introduced, the people have the burden of proving sanity beyond a reasonable doubt.    If the trier of fact finds the defendant was sane at the time of commission of the offense, the court, unless it has reason to believe that the defendant is incompetent to proceed or the question is otherwise raised as provided in section 16-8.5-102, shall immediately set the case for trial on the issues raised by the plea of not guilty. If the question of whether the defendant is incompetent to proceed is raised, the court shall follow the procedure set forth in section 16-8.5-103.    If the trier of fact finds the defendant not guilty by reason of insanity, the court shall commit the defendant to the custody of the department of human services until such time as he is found eligible for release. The executive director of the department of human services shall designate the state facility at which the defendant shall be held for care and psychiatric treatment and may transfer the defendant from one institution to another if in the opinion of the director it is desirable to do so in the interest of the proper care, custody, and treatment of the defendant or the protection of the public or the personnel of the facilities in question.    This section shall apply to offenses committed before July 1, 1995.     History. Source: L. 72: R&RE, p. 226, § 1. C.R.S. 1963: § 39-8-105 . L. 75: (2) amended, p. 613, § 1, effective July 1. L. 94: (4) amended, p. 2648, § 118, effective July 1. L. 96: (5) added, p. 5, § 2, effective January 31. L. 2008: (3) amended, p. 1851, § 5, effective July 1.    Cross references:   For the legislative declaration contained in the 1994 act amending subsection (4), see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative declaration contained in the 2008 act amending subsection (3), see section 1 of chapter 389, Session Laws of Colorado 2008.   ANNOTATION   Analysis     I. GENERAL CONSIDERATION.    II. TRIAL OF INSANITY ISSUE.   A. In General.    B. Burden of Proof.       III. PROCEDURE AFTER TRIAL.     I. GENERAL CONSIDERATION.   Law reviews. For article, “The Mental State of Defendants in Criminal Trials -- A Comparison of Some Colorado and Massachusetts Procedures”, see 14 Rocky Mt. L. Rev. 21 (1941). For note, “Trial Procedure in Colorado Under the 1951 Amendment Relating to Insanity in Criminal Cases”, see 24 Rocky Mt. L. Rev. 223 (1952). For article, “Insanity and the Law”, see 39 Dicta 325 (1962). For comment on French v. District Court, see 36 U. Colo. L. Rev. 280 (1964). For comment on People ex rel. Juhan v. District Court, see 40 U. Colo. L. Rev. 626 (1968). For article, “Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986”, which discusses a case relating to post-arrest silence as evidence of sanity, see 15 Colo. Law. 1606 (1986).   Annotator's note. Since § 16-8-105 is similar to repealed § 39-8-3 , C.R.S. 1963, § 39-8-3 , CRS 53, CSA, C. 48, § 509, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.   This section is constitutional. This section is valid and does not deprive an accused of due process of law. Castro v. People, 140 Colo. 493 , 346 P.2d 1020 (1959).   This section is constitutional and its adoption was a valid exercise of legislative power. Bell v. People, 158 Colo. 146 , 406 P.2d 681 (1965), cert. denied, 384 U.S. 1024, 86 S. Ct. 1964, 16 L. Ed. 2d 1027, reh'g denied, 385 U.S. 892, 87 S. Ct. 23, 17 L. Ed. 2d 126 (1966).   Colorado's automatic commitment statute does not violate the due process rights of one found not guilty by reason of insanity, nor is equal protection violated by the fact that a defendant is denied the same precommitment hearing or release standards provided those civilly committed. People v. Fetty, 650 P.2d 541 (Colo. 1982); Glatz v. Kort, 650 F. Supp. 191 (D. Colo. 1984 ), aff'd, 807 F.2d 1514 (10th Cir. 1986).   Insanity procedure does not compel self-incrimination. No change in the matter of incarceration and observation is provided by insanity procedure from jail to hospital, and this is no violation of a defendant's constitutional exemption from testifying against himself. Castro v. People, 140 Colo. 493 , 346 P.2d 1020 (1959).   The general assembly, in providing for the admission in evidence of defendant's statements to the psychiatrist where sanity is the issue, but barring them on the guilt issue, does not violate the defendant's rights against self-incrimination. Lewis v. Thulemeyer, 189 Colo. 139 , 538 P.2d 441 (1975).   When the sanity issue is a separate proceeding, as it is in Colorado, before a jury that cannot consider the issue of guilt in the event the defendant is found sane and where the admissions cannot be used to establish guilt, there is no self-incrimination within the contemplation of the constitutional provisions. Lewis v. Thulemeyer, 189 Colo. 139 , 538 P.2d 441 (1975).   Refusal to cooperate in examination does not forfeit defense. A person accused of a crime who enters a plea of not guilty by reason of insanity cannot be compelled to carry on conversations against his will under the penalty of forfeiture of the defense for failure to respond to questions, or for a refusal to “cooperate” with persons appointed to examine him. Section 16-8-106 and this section, which prescribe the procedures to be followed upon the entry of a plea of not guilty by reason of insanity, cannot operate to destroy the constitutional safeguards against self-incrimination. French v. District Court, 153 Colo. 10 , 384 P.2d 268 (1963).   This section can have but one meaning; the commitment must follow immediately after the entry of the plea. It fixes a period of time intervening between the date on which a defendant enters his plea and the date on which the issues thus raised shall be tried. Within this intervening period, and “forthwith” upon the entry of the plea, the commitment for observation and examination must be made. Martin v. District Court, 129 Colo. 27 , 272 P.2d 648 (1954).   Trial may not precede commitment. Where one accused of a felony enters pleas of “not guilty” and “not guilty by reason of insanity”, it is not permissible to try defendant on the issues raised by his not guilty plea prior to any commitment for observation and examination as required by § 16-8-106 . Martin v. District Court, 129 Colo. 27 , 272 P.2d 648 (1954).   Primary purpose of immediate commitment is to furnish the state with an opportunity to assess the defendant's mental status and to determine whether he likely will pose a danger to himself or others upon his release. People v. Chavez, 629 P.2d 1040 (Colo. 1981).   Judicially determined doubt as to accused's sanity provides sufficient warrant for immediate commitment and further examination as to his present mental condition. People v. Chavez, 629 P.2d 1040 (Colo. 1981).   Commitment proceedings require due process consideration. Commitment to a mental institution constitutes a severe infringement on the basic interest of an individual to be free from governmental restraint and, thus, requires due process protection. People v. Chavez, 629 P.2d 1040 (Colo. 1981).   Insanity plea not allowed in probation revocation proceeding. A court, in permitting a plea of “not guilty by reason of insanity” in a probation revocation hearing, exceeds its jurisdiction, as a plea of not guilty by reason of insanity is not a proper means of testing competency at such a hearing. People ex rel. Gallagher v. District Court, 196 Colo. 499 , 591 P.2d 1015 (1978).   Statute as basis for jurisdiction. See Schauer v. Smeltzer, 175 Colo. 364 , 488 P.2d 899 (1971).   Applied in People v. Pearson, 190 Colo. 313 , 546 P.2d 1259 (1976); Labor v. Gibson, 195 Colo. 416 , 578 P.2d 1059 (1978); People v. Rosenthal, 617 P.2d 551 (Colo. 1980); People v. Lichtenstein, 630 P.2d 70 (Colo. 1981); People v. Jones, 631 P.2d 1132 (Colo. 1981); People v. Mack, 638 P.2d 257 (Colo. 1981); People v. Roark, 643 P.2d 756 (Colo. 1982); People v. Ferguson, 653 P.2d 725 (Colo. 1982).   II. TRIAL OF INSANITY ISSUE.   A. In General.   Insanity procedure is criminal in nature. Procedure under this section is not violative of the state or federal constitutions as intermingling criminal and civil proceedings in one trial. Castro v. People, 140 Colo. 493 , 346 P.2d 1020 (1959).   The fact that the issue of insanity is separated from other questions for the purpose of trial does not make a civil case out of that which is tendered as a defense to an accusation of crime. Castro v. People, 140 Colo. 493 , 346 P.2d 1020 (1959); People ex rel. Juhan v. District Court, 165 Colo. 253 , 439 P.2d 741 (1968).   Insanity at the time of the commission of the offense is not a mitigating factor that relieves the accused of punishment, but is a complete defense to the criminal charge. Parks v. Denver District Court, 180 Colo. 202 , 503 P.2d 1029 (1972).   The separate sanity trial determines finally guilt of defendant as to an essential ingredient of the crime; mental capacity to commit a crime is a material part of total guilt for there can be no crime without the mens rea. People ex rel. Juhan v. District Court, 165 Colo. 253 , 439 P.2d 741 (1968).   And the question of sanity or insanity is solely one for the jury. Sherrill v. People, 75 Colo. 401 , 225 P. 840 (1924); Wymer v. People, 114 Colo. 43 , 160 P.2d 987 (1945); Palmer v. People, 162 Colo. 92 , 424 P.2d 766 (1967).   The determination of the issue of insanity, when raised, is solely within the province of the jury. Henderson v. People, 156 Colo. 229 , 397 P.2d 872 (1965).   The question of sanity in a criminal case is an issue of fact to be determined by the trier of fact. People v. Wright, 648 P.2d 665 (Colo. 1982).   Jury trial may be waived. This section requiring that if defense waives jury trial on the issue of insanity in a first-degree murder prosecution, it must secure consent of district attorney, is constitutional and not violative of defense right to waive trial by jury. People v. Brisbin, 175 Colo. 428 , 488 P.2d 63 (1971); People v. Kernanen, 178 Colo. 234 , 497 P.2d 8 (1972); People v. District Court, 731 P.2d 720 (Colo. 1987).   The order of proof before the jury is discretionary with the court for there is no requirement that the prosecution initially produce its experts in its case in chief. Elliott v. People, 176 Colo. 373 , 490 P.2d 687 (1971).   Statutory requirement that prosecution consent to waiver of jury in sanity trial applied to trial of defendant prosecuted for second-degree murder rather than subsequently enacted general statute, § 18-1-406 (2) , which did not refer to prosecutor's consent to waiver of jury trial. People v. District Court, 731 P.2d 720 (Colo. 1987).   Distinction between classes of felonies where consent of court and prosecution must be obtained and those classes for which consent is not required before waiver of jury trial will be permitted in a sanity trial has rational foundation. People v. District Court, 731 P.2d 720 (Colo. 1987).   And the prosecution may fortify the presumption of sanity by the presentation of evidence tending to establish the fact of sanity. Henderson v. People, 156 Colo. 229 , 397 P.2d 872 (1965).   And introduce evidence of sanity as case in chief. Where a defendant by cross-examination of the people's witnesses produces evidence rebutting the presumption of sanity, it is incumbent on the prosecution to prove the sanity of defendant as part of its case in chief, and it is not error to receive such evidence. Castro v. People, 140 Colo. 493 , 346 P.2d 1020 (1959).   Evidence of normal or abnormal conduct is relevant on sanity issue. A much wider area of conduct on the part of a defendant can be made the subject of inquiry in a trial relating to his sanity than would be permissible in a trial upon a plea of not guilty. Any abnormal conduct, whether related to the act forming the basis of the accusation or not, may be relevant and important on the issue of his mental condition. Conversely, evidence of normal conduct, and actions reflecting the usual and ordinary under the circumstances, may be shown to prove sanity. Trujillo v. People, 150 Colo. 235 , 372 P.2d 86 (1962).   And jury has discretion to infer lack of mental capacity from appearance or conduct of the accused while in their presence, or from the factual circumstances disclosed by the evidence, thus evidence of sanity should not be excluded whether offered as part of the case in chief or upon rebuttal. Henderson v. People, 156 Colo. 229 , 397 P.2d 872 (1965); Palmer v. People, 162 Colo. 92 , 424 P.2d 766 (1967).   Thus, expert testimony is not conclusive on the jury and must be weighed along with all other testimony. Palmer v. People, 162 Colo. 92 , 424 P.2d 766 (1967).   A jury is not bound by the testimony of experts and is free to believe lay testimony over any other. People v. Ware, 187 Colo. 28 , 528 P.2d 224 (1974).   Neither is defendant's acknowledged status as a ward of the state conclusive evidence of insanity. It does not follow from a commitment to such an institution that one necessarily is incapable of forming an intent to commit a crime. McConnell v. People, 157 Colo. 235 , 402 P.2d 75 (1965).   Trial court has discretion to determine order in which evidence will be presented at the sanity trial. People v. Osborn, 42 Colo. App. 376, 599 P.2d 937 (1979).   The order of proof before the jury is discretionary with the court for there is no requirement that the prosecution initially produce its experts in its case in chief. Elliot v. People, 176 Colo. 373 , 490 P.2d 687 (1971).   Scope of evidence admissible on the issue of insanity is broad. People v. Wright, 648 P.2d 665 (Colo. 1982).   Evidence offered must touch issue. While evidence going only to the commission of the act and to the surrounding circumstances is relevant, the evidence offered in some way must touch on the issue of whether the defendant could distinguish between right and wrong and adhere to the right and refrain from the wrong. People v. Ware, 187 Colo. 28 , 528 P.2d 224 (1974).   Defense attorney entitled to physician's information. Where the confessions and admissions of the defendant have been weighed by the examining physician in evaluating the defendant's sanity, fairness requires that the prosecutor have the same information as the defense attorney. Lewis v. Thulemeyer, 189 Colo. 139 , 538 P.2d 441 (1975).   Limited to issue of insanity. The use of the confessions or admissions of the defendant in the decisional process by the psychiatrist in forming an opinion as to the sanity or insanity of the defendant does not aid in the proof of guilt, but it is perforce limited to the issue of sanity. Lewis v. Thulemeyer, 189 Colo. 139 , 538 P.2d 441 (1975).   District attorney's statement improper. Where the district attorney in his closing argument stated that if they found the defendant to be insane, he would never be tried for the criminal act charged, this statement was improper. People v. Medina, 185 Colo. 101 , 521 P.2d 1257 (1974).   Defendant pleading insanity entitled to have such form of verdict submitted. Defendant pled insanity, along with his general plea of not guilty, which plea was never formally withdrawn, though in practical effect it was abandoned as no evidence was offered on the issue raised by the plea of insanity. Defendant, had he so desired, was entitled to have appropriate forms of verdict on this issue submitted to the jury. Cruz v. People, 147 Colo. 528 , 364 P.2d 561 (1961), cert. denied, 368 U.S. 978, 82 S. Ct. 483, 7 L. Ed. 2d 440 (1962).   Upon trial neither the people nor the defendant offered any evidence related to the issue raised by the plea of insanity. Nevertheless, it was error to direct the jury to find the defendant sane and defendant, had he so desired, was entitled to have appropriate instructions on the questions of insanity and to have forms of verdict on this issue submitted to the jury. Henderson v. People, 156 Colo. 229 , 397 P.2d 872 (1965).   And verdict as to guilt does not dispose of insanity issue. When a defendant pleads not guilty and not guilty by reason of insanity and at trial the defense attorney states that the trial will go forward on the not guilty plea, a verdict of guilty does not dispose of the insanity issue which must be tried to a jury unless the insanity plea is withdrawn. People v. Duran, 179 Colo. 129 , 498 P.2d 937 (1972).   Error in failing to so submit verdict may be waived. Counsel for defendant, after examining the proposed forms of verdict, had no objections nor did he tender any additional forms of verdicts. Thus, defendant cannot successfully predicate error on the failure of the trial court to submit a form of verdict on the issue raised by the insanity plea. Cruz v. People, 147 Colo. 528 , 364 P.2d 561 (1961), cert. denied, 368 U.S. 978, 82 S. Ct. 483, 7 L. Ed. 2d 440 (1962).   Instruction on status of defendant after verdict properly refused. In a criminal case where the defense is insanity, the jury has no duty to perform with reference to subsequent orders of court after a verdict of not guilty by reason of insanity is returned, and a requested instruction concerning the status of defendant after such a verdict is properly refused. Ingles v. People, 90 Colo. 51 , 6 P.2d 455 (1931).   Determination of insanity does not bar subsequent prosecution for separate crime committed hours later. The determination by one district court that defendant was insane at the time of a crime committed within that district does not bar a subsequent prosecution in another district court for a separate crime committed a few hours later within that district. People v. Kernanen, 178 Colo. 234 , 497 P.2d 8 (1972).   But issue of sanity at time of earlier crime is final. The doctrine of collateral estoppel affords the defendant the right in a subsequent sanity trial to claim finality with respect to the fact that he had become insane at the time of the commission of a crime several hours earlier in another county and, given this fact, the prosecution will not be able to prove the defendant's sanity unless it can show that the defendant's mental state changed abruptly sometime after the earlier offense was committed. People v. Kernanen, 178 Colo. 234 , 497 P.2d 8 (1972).   As is finding of sanity at hearing prior to trial on guilt issue. The argument that the defendant was incapable of forming the requisite mens rea and, therefore, he could not be criminally responsible for his acts, is unpersuasive where the defendant was found sane in a separate sanity hearing prior to trial on the issue of guilt, and no objection was raised as to the propriety of the proceedings. Johnson v. People, 174 Colo. 413 , 484 P.2d 110 (1971).   Jury verdict of not guilty by reason of insanity is an adjudication on the merits which absolves the defendant of criminal responsibility. People v. Serravo, 823 P.2d 128 (Colo. 1992).   Colorado's statutory procedure does not permit the issue of sanity to be submitted to the jury where no evidence of insanity has been presented. Under this procedure, if a trial court properly determines that no evidence of insanity has been introduced, it should not submit the issue to the jury because the presumption of sanity has not been rebutted. People v. Hill, 934 P.2d 821 (Colo. 1997); People v. Anderson, 70 P.3d 485 (Colo. App. 2002).   Because defendant's proffered evidence and theory did not support an insanity plea or defense, court concluded that he was not entitled to pursue or have counsel pursue them at trial; consequently, trial court did not err in vacating defendant's plea of not guilty by reason of insanity over defendant's objection, since defendant simply had no such evidence to present. People v. Anderson, 70 P.3d 485 (Colo. App. 2002).   B. Burden of Proof.   It is not necessary for the prosecution to prove in the first instance that defendant was sane. Ingles v. People, 90 Colo. 51 , 6 P.2d 455 (1931); Henderson v. People, 156 Colo. 229 , 397 P.2d 872 (1965).   In a homicide case the defense being not guilty by reason of insanity, the people are not required in the first instance to offer proof of sanity which is presumed in the absence of evidence tending to show the contrary. Graham v. People, 95 Colo. 544 , 38 P.2d 87 (1934).   Ordinarily the issue of insanity is not present at the outset of a trial and is not properly a part of the prosecution's case. Castro v. People, 140 Colo. 493 , 346 P.2d 1020 (1959).   As every person is presumed to be sane until the contrary appears. Ingles v. People, 90 Colo. 51 , 6 P.2d 455 (1931); Henderson v. People, 156 Colo. 229 , 397 P.2d 872 (1965).   Notwithstanding a plea of insanity, the presumption of sanity exists at the outset of a hearing, and it is incumbent upon a defendant to generate a reasonable doubt of its existence. Leick v. People, 136 Colo. 535 , 322 P.2d 674, cert. denied, 357 U.S. 922, 78 S. Ct. 1363, 2 L. Ed. 2d 1366 (1958).   A defendant is presumed to be sane and this presumption continues until evidence of his insanity is offered. Castro v. People, 140 Colo. 493 , 346 P.2d 1020 (1959).   The presumption of sanity will operate until some evidence to the contrary is presented. Elliott v. People, 176 Colo. 373 , 490 P.2d 687 (1971); People v. Kernanen, 178 Colo. 234 , 497 P.2d 8 (1972); People v. Johnson, 180 Colo. 177 , 503 P.2d 1019 (1972).   Prosecution's failure to introduce evidence of sanity, despite opening statement concerning such evidence, not error. It is not error for the prosecution to make an opening statement outlining the evidence he intends to present to the jury on the issue of insanity and then rest on the presumption of sanity without presenting any evidence. People v. Osborn, 42 Colo. App. 376, 599 P.2d 937 (1979).   Presumption, if not rebutted, supports verdict of sanity. When no evidence is presented to rebut the presumption of sanity, and defendant refuses to talk with the court appointed psychiatrist, it is proper for the jury to return a verdict finding the defendant to be sane. People v. Johnson, 180 Colo. 177 , 503 P.2d 1019 (1972).   But defendant is required to present only some evidence of insanity to rebut presumption of sanity, since a presumption is not evidence, and the primary purpose of the presumption of sanity is merely procedural convenience in those trials in which sanity is not really an issue. People v. Kernanen, 178 Colo. 234 , 497 P.2d 8 (1972); People v. Hill, 934 P.2d 821 (Colo. 1997).   The presumption of sanity will stand if no evidence of insanity is offered by the defense. People v. Ware, 187 Colo. 28 , 528 P.2d 224 (1974).   And the burden is on the people to prove defendant's sanity beyond a reasonable doubt. Castro v. People, 140 Colo. 493 , 346 P.2d 1020 (1959).   When evidence of insanity is introduced, the people have the burden of proving beyond a reasonable doubt the sanity of the defendant. Graham v. People, 95 Colo. 544 , 38 P.2d 87 (1934); People v. Chavez, 629 P.2d 1040 (Colo. 1981).   Once defendant produces evidence tending to beget a reasonable doubt, he casts upon the state the obligation of presenting evidence which will satisfy the jury that he was sane beyond a reasonable doubt at the time of the act charged. Leick v. People, 136 Colo. 535 , 322 P.2d 674, cert. denied, 357 U.S. 922, 78 S. Ct. 1363, 2 L. Ed. 2d 1366 (1958).   Mental capacity to commit crime is a necessary ingredient of any offense, and as to every necessary ingredient of the total crime there must be proof beyond a reasonable doubt. People ex rel. Juhan v. District Court, 165 Colo. 253 , 439 P.2d 741 (1968).   The burden is on the people to prove defendant sane beyond any reasonable doubt, not by mere preponderance of the evidence. Lewis v. People, 174 Colo. 334 , 483 P.2d 949 (1971).   The burden in criminal cases required proof of sanity beyond a reasonable doubt. Young v. People, 175 Colo. 461 , 488 P.2d 567 (1971).   For the prosecution to prevail after the presumption of sanity has been rebutted, it must prove that the defendant was sane beyond a reasonable doubt. People v. Kernanen, 178 Colo. 234 , 497 P.2d 8 (1972).   Every person is presumed sane, but once any evidence of insanity is introduced, due process requires that the people prove sanity beyond a reasonable doubt. People v. Ware, 187 Colo. 28 , 528 P.2d 224 (1974); People v. Wright, 648 P.2d 665 (Colo. 1982).   This section recognizes that where the sanity of the defendant is placed in issue, the burden of proof is on the people to prove his sanity beyond a reasonable doubt. Lewis v. Thulemeyer, 189 Colo. 139 , 538 P.2d 441 (1975); People v. Serravo, 823 P.2d 128 (Colo. 1992).   Prosecution not required to prove defendant's sanity beyond a reasonable doubt if, prior to the presentation of defendant's case, no evidence had been presented that defendant's mental condition was unconnected to drug use. To dispel the presumption of sanity, the evidence must tend to establish each of the elements of the insanity defense. People v. Grant, 174 P.3d 798 (Colo. App. 2007).   And defendant is not required to prove issues to satisfaction of jury. It is not incumbent upon the defendant in a criminal case, either by his own evidence or that of the people, or both combined, to prove anything to the satisfaction of the jury. People ex rel. Juhan v. District Court, 165 Colo. 253 , 439 P.2d 741 (1968).   Adjudication of insanity represents failure to prove defendant's sanity. An adjudication of insanity represents a judicial determination that the prosecution has failed to prove the defendant's sanity beyond a reasonable doubt. People v. Chavez, 629 P.2d 1040 (Colo. 1981).   Some competent lay evidence of sanity may suffice when the defendant has introduced only token evidence of insanity. People v. Ware, 187 Colo. 28 , 528 P.2d 224 (1974).   But this same evidence of sanity may be totally inadequate when defendant's evidence of insanity is substantial. People v. Ware, 187 Colo. 28 , 528 P.2d 224 (1974).   The court determines in the first instance whether evidence presented is sufficient to dissipate the presumption of sanity. People v. Johnson, 180 Colo. 177 , 503 P.2d 1019 (1972).   But jury having reasonable doubt as to sanity must return verdict of not guilty. If, upon consideration of all the evidence in a homicide case, the jury has a reasonable doubt as to whether the defendant was sane or insane at the time of committing the act charged, the defense being insanity, they must return a verdict of not guilty. Graham v. People, 95 Colo. 544 , 38 P.2d 87 (1934); People ex rel. Juhan v. District Court, 165 Colo. 253 , 439 P.2d 741 (1968).   If the evidence raises in the minds of the jury a reasonable doubt of the defendant's sanity at the time of the act, they must find the defendant not guilty of the crime charged. Ingles v. People, 92 Colo. 518 , 22 P.2d 1109 (1933).   If, after considering all the evidence, a jury has a reasonable doubt whether the defendant was sane or insane at the time of committing the act, the verdict must be that the defendant is insane. People v. Ware, 187 Colo. 28 , 528 P.2d 224 (1974).   Directed verdict of not guilty by reason of insanity was proper. People v. Anderson, 159 Colo. 124 , 410 P.2d 164 (1966).   In a criminal case a defendant can assert as many defenses as can be supported by evidence. If affirmative defenses such as self-defense or alibi are presented, the issues thereon are tried as part of the criminal case, and if any such defense raises in the mind of the jury a reasonable doubt as to a defendant's guilt he should be acquitted. The defense of insanity stands upon the same footing. Castro v. People, 140 Colo. 493 , 346 P.2d 1020 (1959); People ex rel. Juhan v. District Court, 165 Colo. 253 , 439 P.2d 741 (1968).   Once the presumption of sanity has been rebutted, a directed verdict should be granted to the defendant if the prosecution fails to put on any evidence of the defendant's sanity. People v. Kernanen, 178 Colo. 234 , 497 P.2d 8 (1972).   Former requirement of proof by preponderance held to violate due process. Former provision permitting the people to establish an accused's sanity by a preponderance of the evidence was held to be a denial of due process of law and thereby unconstitutional. Washington v. People, 169 Colo. 323 , 455 P.2d 656 (1969); Simms v. People, 175 Colo. 191 , 486 P.2d 22 (1971); Moneyhun v. People, 175 Colo. 220 , 486 P.2d 434 (1971).   Former provision which provided that the burden shall be on the defendant to prove by a preponderance of the evidence that he was insane at the time of the alleged commission of the crime violated the due process clause of the constitution of Colorado. People ex rel. Juhan v. District Court, 165 Colo. 253 , 439 P.2d 741 (1968).   Erroneous instruction on burden of proof requires new trial on sanity only. Where the jury was erroneously instructed that the people have the burden of proving the defendant sane by a preponderance of the evidence, it is necessary to have a new trial on the issue of defendant's sanity, but the entire decision need not be reversed nor a new trial held on the merits as well. Lewis v. People, 174 Colo. 334 , 483 P.2d 949 (1971).   The instruction to the jury that the defendant has the burden of proving by a preponderance of the evidence that he was insane at the time of the alleged commission of the crime is prejudicially erroneous and requires remand for new trial on sanity issue. Simms v. People, 166 Colo. 278 , 443 P.2d 371 (1968).   The trial court's instruction that the burden of proof is on the prosecution to prove by a preponderance of the evidence that the defendant was sane at the time of the alleged commission of the crime, in harmony with the statute then in effect, was declared unconstitutional by the supreme court and the conviction is reversed and remanded for new trial on the issue of sanity. Johnson v. People, 172 Colo. 72 , 470 P.2d 37 (1970).   When a trial judge under former provisions erroneously instructed the jury that the burden of proof is upon the defendant to establish by a preponderance of the evidence that he was insane at the time of the commission of the offense, this error clearly requires that the defendant be granted a new trial on the sanity issue. Moneyhun v. People, 175 Colo. 220 , 486 P.2d 434 (1971).   Statement of law contained in jury instruction was a correct statement of the presumption of sanity and the burden of proof. Salas v. People, 181 Colo. 321 , 509 P.2d 586 (1973).   III. PROCEDURE AFTER TRIAL.   Law reviews. For article, “Insanity and the Law”, see 39 Dicta 325 (1962).   Committing court has subject matter jurisdiction to hear and determine issues relating to care and treatment of defendant committed to department of institutions as result of an insanity adjudication and such jurisdiction continues until the defendant is unconditionally released from the order of commitment. People v. Gilliland, 769 P.2d 477 (Colo. 1989).   Insane defendant is confined in state institution. Under this section no matter how brutal a homicide may be, a person who is insane at the time of committing it cannot lawfully be convicted of murder, but if found guilty of committing the act, under former procedures for trying the issue of guilt first, must be confined in a state institution under the laws governing institutions. Graham v. People, 95 Colo. 544 , 38 P.2d 87 (1934).   Because he is not accountable to the law. A defendant found not guilty by reason of insanity is sent to a state institution, not because he is accountable to the law, but because he is not. In requiring him to be committed, the law is not in any sense holding him accountable for the homicide. Ingles v. People, 90 Colo. 51 , 6 P.2d 455 (1931).   Where petitioner was found not guilty of the crime charged by reason of insanity, it means that he was not legally responsible for the acts committed. Scheidt v. Meredith, 307 F. Supp. 63 (D. Colo. 1970 ).   He is not, therefore, a convicted criminal. Scheidt v. Meredith, 307 F. Supp. 63 (D. Colo. 1970 ).   And commitment is not punishment. A judgment of limited responsibility allows one to be committed to a hospital for treatment and custody until he regains his sanity. This is not, however, punishment and indeed the state may not constitutionally impose criminal sanctions against persons who have committed no crime. Scheidt v. Meredith, 307 F. Supp. 63 (D. Colo. 1970 ).   Purpose of commitment following adjudication of not guilty by reason of insanity. Where a defendant has been adjudicated not guilty by reason of insanity for acts which, but for his insanity, would be punishable as crimes, that adjudication furnishes a legitimate basis for the immediate commitment of the defendant to an institution for observation and examination, as well as any needed treatment, so that a reliable determination might be made of his mental condition and what danger, if any, he poses to himself and others. People v. Chavez, 629 P.2d 1040 (Colo. 1981); Glatz v. Kort, 650 F. Supp. 191 (D. Colo. 1984 ), aff'd, 807 F.2d 1514 (10th Cir. 1986); People v. Gilliland, 769 P.2d 477 (Colo. 1989).   This section confers on persons criminally committed a right to treatment. Romero v. Schauer, 386 F. Supp. 851 (D. Colo. 1974 ); People v. Gilliland, 769 P.2d 477 (Colo. 1989).   But, in the absence of findings that the state hospital staff failed to consider relevant facts and exercise competent professional judgment in devising a treatment plan, the district court exceeded its jurisdiction in ordering defendant's treatment by private psychiatrist and payment of therapist from the hospital's budget. Kort v. Carlson, 723 P.2d 143 (Colo. 1986).   Person committed to department of institutions for care and treatment as result of an insanity adjudication is entitled to the same general quality of treatment available to a civilly committed patient. People v. Gilliland, 769 P.2d 477 (Colo. 1989).   Probation, recommitment, and transfer are discretionary acts clothed with governmental immunity. A request for transfer of a mental patient from a state hospital to the penitentiary, provided for by Colorado law, is not only an act of discretion on the part of the director of state institutions but is an act expressly provided for and authorized by Colorado law. The allegation of the existence of a conspiracy between the staff psychiatrist and officials not to release the appellant in violation of the civil rights act does not affect the application of the doctrine of governmental immunity. Franklin v. Meredith, 386 F.2d 958 (10th Cir. 1967).   Judicial department cannot interfere with statutorily granted discretion of director of state institutions regarding the transfer of a patient committed to the custody of the department between institutions or between treatment units within an institution. Kort v. Hufnagel, 729 P.2d 370 (Colo. 1986).   District attorney's legal interest in an insanity adjudication does not end with the order of commitment but continues until such time as defendant is unconditionally released from the order of commitment. People v. Gilliland, 769 P.2d 477 (Colo. 1989).   When nonconsensual treatment of criminal defendant may be ordered. In accordance with People v. Medina (705 P.2d 961), treatment with antipsychotic medication should not be ordered unless: (1) The patient is incompetent to effectively participate in the treatment decision; (2) such treatment is necessary to prevent long-term deterioration in the patient's mental condition; (3) a less intrusive treatment is not available; and (4) the patient's need for such treatment overrides any legitimate interest of the patient in refusing treatment. Any order for involuntary medication cannot exceed six months without further extension. People v. Gilliland, 769 P.2d 477 (Colo. 1989).