Return to CALJIC Part 5-8 – Contents
F 8.84 n1 Unconstitutional Vagueness of Sentencing Factors.
In People v. Mayfield (93) 5 C4th 142, 194 [19 CR2d 836], the court rejected an argument that the California Supreme Court’s decisions discussing death eligibility for murder committed while lying in wait and the jury’s discretion to consider age and victim impact statements at the penalty phase have failed to adopt a narrowing construction of PC 190.3. Therefore, the statute does not guide the jury’s discretion as constitutionally required. (E.g., Gregg v. Georgia (76) 428 US 153 [49 LEd2d 859].)
F 8.84 n2 No Right to Factual Or Legal Findings When Penalty Trial Is Conducted By The Court.
People v. Diaz (92) 3 C4th 495, 571-72 [11 CR2d 353] rejected the argument that lack of the jury instructions in a court trial provides insufficient basis for adequate appellate review of a death sentence.
F 8.84 n3 Admission Of Evidence Regarding Prior Death Sentence Does Not Violate 8th Amendment.
Romano v. Oklahoma (94) 512 US 1 [129 LEd2d 1; 114 S.Ct. 2004].
F 8.84 n4 THIS ENTRY HAS BEEN DELETED.
F 8.84 n5 Instruction As To Meaning Of LWOP: Sample Argument When Instruction Refused.
People v. Holt (97) 15 C4th 619, 689 [63 CR2d 782] rejected the defendant’s argument that the term life without possibility of parole is a technical term requiring sua sponte definition by the trial court. In so doing, the court quoted with approval the following argument of defense counsel regarding the issue:
“‘[the defendant] is going to spend the rest of his life in prison and life without parole means what it says …,’ Counsel also told the jury that notorious murderers who had received parole hearings did so under the old law, under the present law defendant would not have parole hearings and ‘”[h]e will not get out.’”
Accordingly, under the authority of Holt, counsel should be permitted to make such arguments, especially if defendant’s request to define life without parole is rejected.
(See FORECITE F 8.84c.)
F 8.84 n6 Self-Representation: Applicability To Penalty Phase Of Death Penalty Trial.
See FORECITE F 2.60 n16.
F 8.84 n7 Duty Of Trial Court To See That Death Penalty Hearing Is Fair.
The subjective nature of mitigating and aggravating evidence requires a reviewing court dealing with alleged judicial bias to look at the penalty phase with a skeptical eye, keeping in mind that the trial judge bears a solemn responsibility to see that the death penalty hearing was fair. (See Bracey v. Schomig (7th Cir. 2002) 286 F3d 406.)
F 8.84 n8 Eyewitness Identification: Whether Death Penalty Should Be Imposed Where Guilt Is Based Solely On Testimony Of A Single Eyewitness.
(See FORECITE F 2.92 n18.)
F 8.84 n9 Jury Must Decide Question Of Penalty As To Each Defendant Independently.
See People v. Ervin (2000) 22 C4th 48, 95 [91 CR2d 623].
F 8.84 n10 Gang Evidence Improper Where Future Dangerousness Not Raised.
In People v. Boyette (2002) 29 C4th 381 [127 CR2d 544] the prosecutor had asked appellant’s mental health expert whether appellant, described by the expert as immature and dependent, would be susceptible to the influence of gang members in prison. Defense counsel had not asked the witness any questions about appellant’s future dangerousness; had he done so, the questions would have been permissible. Because he had not, the prosecutor’s questions appeared to be an improper attempt to elicit expert evidence on future dangerousness.
F 8.84a
¶ 2 Instruction As To Meaning Of LWOP.
*Add to CJ 8.84 as follows:
SAMPLE INSTRUCTION # 1:
If a defendant is sentenced to life without parole, neither the courts nor the parole authorities will have the power to release [him] [her]. There are no “loopholes” which permit the courts or parole authorities to release a defendant sentenced to life without parole no matter how strongly they may want to do so due to overcrowding or for any other reason. [No person sentenced to life without parole [under the current statutory scheme] has ever been released on parole.]
SAMPLE INSTRUCTION # 2:
A sentence of life without parole means that under the law defendant is not eligible for parole.
SAMPLE INSTRUCTION # 3:
A sentence of death or life imprisonment without parole may only be commuted by the California Governor, a politically elected official[.][,] [with the approval of at least four of the seven Justices of the California Supreme Court, who must also be approved by the voters. Therefore, while it is theoretically possible for a life sentence without parole to be commuted, it has never yet happened, and I don’t expect it to ever happen. In any event, no juror may consider such speculative matters in deciding which penalty to impose. You must approach the penalty deliberations under the assumption that which ever penalty you choose will be imposed for sure.]
[Source: Adapted from instruction given in People v. Martinez (2003) 31 C4th 673, which “adequately explained the theoretical possibility of the commutation of a death or life without parole sentence.”]
SAMPLE INSTRUCTION # 4:
Some jurors may believe a life prisoner will still be able to obtain release on parole sometime in the future. In unusual cases, future action by the judiciary [and] [or] the Governor may permit the defendant to obtain parole. Such possibilities apply whether the jury imposes a sentence of death or of life without the possibility of parole. However, you should assume such future actors will follow the law and that the sentence you reach will be carried out. Do not speculate on any other possibilities.
Points and Authorities
See FORECITE F 760.2 Inst 4 (a & b).
F 8.84b
Juries Should Assume That Death Sentence Will Be Carried Out
*Add to CJ 8.84:
If you sentence the defendant to death, you must assume that the sentence will be carried out.
Points and Authorities
In State v. Southerland S.C. (94) 447 SE2d 862, 868, it was held that the above instruction should be given, upon request, or juror inquiry as to the meaning of life imprisonment. (See also People v. Kipp (98) 18 C4th 349, 377-78 [75 CR2d 716] [jury should be told to assume that whatever penalty it selects will be carried out if requested by counsel or if there is reason to believe the jury has some concerns or misunderstandings in this regard].)
CAVEAT: This instruction — which is essentially a cautionary/limiting instruction — “may unnecessarily raise questions in the jurors’ minds.” (People v. Kipp (98) 18 C4th 349, 378 [75 CR2d 716].) Hence, the ultimate decision as to whether or not to so instruct the jury should be made by the defendant. (See PG X(E)(19)(3).) If trial counsel determines that such an instruction is strategically unwise, counsel should object and not request the instruction. Conversely, if the instruction is given over objection or without a request by the defense, an issue as to its propriety may be a potential question on appeal.
F 8.84c
Juror Misconceptions About Parole From Pre-1978 Cases
*Add to CJ 8.84:
Statements by some jurors during jury selections showed an awareness of news reports concerning other cases or sentences of death which were not carried out for legal reasons or where persons sentenced to life imprisonment may have been considered for parole.
Under the 1978 death penalty law, which governs this case, the only possible penalties are death or life imprisonment without the possibility of parole.
In the past, other cases were decided under other laws which are no longer in effect.
You must not consider other cases or news reports or speculate about actions by other authorities in arriving at a penalty verdict int his case. Those are matters that must not affect your verdict.
Points and Authorities
While People v. Farnam (2002) 28 C4th 107, 191 [121 CR2d 106] does not suggest that such an instruction is required, the opinion observed that the following instruction was given at the defendant’s request. There was no error in giving the instruction, which addressed a misconception about the effect of a LWOP sentence expressed by some jurors during voir dire.
