In People v. Bolden (1990) 217 Cal.App.3d 1591, a defendant is found not guilty by reason of insanity and committed to a state hospital, his or her commitment term runs until sanity is restored ( 1026.2) or until the maximum state prison term that could have been imposed for the offenses the defendant committed has expired, whichever occurs first. ( 1026.5, subd. (a)(1), 1026.1; Bolden, at p. 1596.) After the maximum commitment term has expired, the prosecution may petition the court to extend the commitment under section 1026.5, subdivision (b). Under that section, the court may extend a defendant's commitment in two year intervals "where the defendant has been convicted of a felony and has a mental disease which causes him to 'represent a substantial danger of physical harm to others.'" (Bolden, at p. 1596.) In Bolden, this court was faced with a commitment extension proceeding under section 1026.5 in which the defendant argued the trial court should have instructed the jury that the prosecution had the burden of proving he was a substantial danger in a medicated state and he would not continue to take his medication in an unsupervised environment. (Bolden, supra, 217 Cal.App.3d at p. 1597.) The Court rejected this argument, holding the state sustains its burden of proof by showing, among the other elements, the respondent is dangerous to the physical safety of others without regard to the effect of any medication. (Bolden, supra, 217 Cal.App.3d 1591, 1599.) The Court pointed out that unlike other statutes (e.g., section 1026.2), section 1026.5 defines dangerousness without regard to the effect of medical treatment, and that, "given a release under section 1026.5 is an unconditional one -- the released person leaves the psychiatric facility without further supervision or compulsory treatment -- the Legislature's failure to define dangerousness under section 1026.5, subdivision (b)(1) in terms of behavior while under treatment is no mere oversight." (Bolden, 217 Cal.App.3d at p. 1599.) The conclusion was compelled by both the language in section 1026.5 and the policy of protecting the public. (Bolden, at p. 1599.) The Court concluded, however, that even though the People had no burden to prove the defendant was dangerous even if medicated, "the effect of medication in controlling the respondent's dangerousness and whether he will self-medicate in an unsupervised environment may be raised by the respondent as a defense." (Bolden, supra, 217 Cal.App.3d at p. 1600.) The reasoning depended on the nature of an affirmative defense: "An affirmative defense is one which does not negate any element of the crime, but is new matter which excuses or justifies conduct which would otherwise lead to criminal responsibility. For example, necessity is a defense which admits, for the sake of argument, the elements of the charged offense, but offers a justification to avoid criminal culpability. As such, it is an affirmative defense which the defendant must prove by the preponderance of the evidence." (Id. at p. 1601.) Bolden's claims about the impact of medication admitted the truth of the elements of the People's case; "stated differently, there is nothing logically inconsistent with the truth of both the elements of the People's case and those of Bolden's defense existing simultaneously." (Id. at pp. 1601-1602.) Accordingly, the Court held the trial court should have directed the jury to consider that defense and should have instructed it that the defendant bore the burden of proving the defense by a preponderance of the evidence. (Id. at p. 1602.)