Return to CALJIC Part 5-8 – Contents
F 8.85 n1 Overbreadth Of Statutory Array: Failure Of California Statute To Perform Constitutionally Mandated Narrowing Function.
Because the California statutory scheme contains so many special circumstances that nearly all murders committed in California can be capitally charged, the statute implicates the 8th Amendment of the federal constitution by failing to perform its narrowing function. (See discussion of U.S. v. Cheely (9th Cir. 1994) 36 F3d 1439 at FORECITE F 8.81.17c.) Therefore, this issue should be raised at both the trial and appellate level in every capital case. [Briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank B-615.]
F 8.85 n2 Aggravating Factors In Capital Sentencing Statutes.
For a review of the statutory aggravating sentencing factors that are used in contemporary death penalty laws, see 30 Criminal Law Bulletin 107 (1994).
F 8.85 n3 Instruction On Remorse.
See FORECITE F 763.13 Note 1.
F 8.85 n4 Death Penalty: Confusing Jury Instruction Regarding Possibility Of Parole.
In Hamilton v. Vasquez (9th Cir. 1994) 17 F3d 1149, 1160-62, the 9th Circuit reversed a California death judgment based on a modification of the Ramos instruction which the court interpreted as incorrectly suggesting that if given life without parole, the defendant would nevertheless be eligible for release. (See also McLain v. Calderon (9th Cir. 1998) 134 F3d 1383.) Note that even though defense counsel eventually consented to the modified instruction — and the dissent contended that the defense was satisfied with the instruction — the majority relied on the defense objection to any parole instruction to conclude that the defendant “had to settle for a modified instruction.” This aptly illustrates how trial counsel’s objection below may mean the difference between life or death when the case is reviewed under federal habeas corpus years later.
F 8.85 n5 Instruction Improperly Suggests That The Jury May Not Consider Pity As A Mitigating Factor.
CJ 8.85(k) informs the jury that it may consider “any other circumstances which extenuates the gravity of the crime … as a basis for a sentence less than death ….” The instruction concludes by stating that “you must disregard any jury instruction given to you in the guilt or innocence phase of this trial which conflicts with this principle.” This last sentence leaves the jurors with the unguided determination of what may have “conflicted with this principle.” Although the jurors were told in the penalty phase that they could consider “any sympathetic or other aspect of the defendant’s check character or record,” the jurors may not reasonably believe this to include pity. Hence, CJ 8.85(k) should be modified to include a specific provision for the jurors to consider pity.
People v. Ochoa (98) 19 C4th 353 [79 CR2d 408] suggested that, “pity and sympathy are essentially synonymous in this context.” (Ochoa, 19 C4th at 459.) Hence, it found no sua sponte duty to instruct the jurors that they could consider pity in deciding which sentence to impose. Nevertheless, the court did not contest the underlying premise that the jury should be permitted to consider pity and, therefore, if counsel so requests, the jury should be instructed in such a way that it is absolutely clear that pity may be considered.
STRATEGY NOTE: If the instruction is refused, counsel should consider informing the jury during argument that this rule of law is included in the general instructions. (See FORECITE F 1.00l.)
[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank B-559.]
F 8.85 n6 Jury’s Consideration Of Mitigating Evidence May Be Guided.
“Although Lockett and Eddings prevent a State from placing relevant mitigating evidence ‘beyond the effective reach of the sentencer’ (Graham v. Collins (93) 506 US 461 [122 LEd2d 260, 275; 113 SCt 892]), those cases and others in that decisional line do not bar a state from guiding the sentencer’s consideration of mitigating evidence.” (Johnson v. Texas (93) 509 US 350 [125 LEd2d 290, 302; 113 SCt 2658].)
F 8.85 n7 Jurors Should Not Simply Count Up The Factors.
In People v. Cummings (93) 4 C4th 1233, 1327 [18 CR2d 796], the court held that the following instruction adequately informed the jurors of its discretion to determine the appropriate penalty based on their view of the force of the evidence:
In considering, taking into account, and being guided by the aggravating and mitigating circumstances, you must not decide the evidence of such circumstances by the simple process of counting the number of circumstances on each side. The particular weight of such opposing circumstances is not determined by the relative number but by their relative convincing force on the ultimate question of punishment.
F 8.85 n8 Consciousness Of Guilt Inapplicable To Penalty Trial.
Consciousness of guilt is inapplicable at the penalty phase. (People v. Rowland (92) 4 C4th 238, 281-82 [14 CR2d 377].
F 8.85 n9 Without Further Clarification, Factor (a) Is Vague And Ambiguous.
[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank B-562.]
F 8.85 n10 Vagueness Of Aggravating Factors.
In Arave v. Creech (93) 507 U.S. 463 [123 LEd2d 188; 113 SCt 1534], the Supreme Court held that a statutory aggravating circumstance requiring that the defendant exhibit “utter disregard for human life” was not unconstitutionally vague because the term had been sufficiently narrowed in its interpretation by the state supreme court.
F 8.85 n11 Vagueness Of Sentencing Factors.
The U.S. Supreme Court remanded People v. Bacigalupo (91) 1 C4th 103 [2 CR2d 335] to the California Supreme Court for reconsideration in light of Stringer v. Black (92) 503 US 222 [117 LEd2d 367; 112 SCt 1130]. Upon reconsideration, the California Supreme Court concluded that there is no vagueness problem with the statutory factors specified by the California Death Penalty Statute because those factors do not serve a “narrowing function” for purposes of determining death eligibility. (People v. Bacigalupo (93) 6 C4th 457, 477 [24 CR2d 808].)
However, the United States Supreme Court has granted certiorari in Proctor v. California (93-5161) and Tuilaepa v. California (93-5131) to consider this issue.
[FORECITE subscribers may obtain an article addressing these issues by Cliff Gardner and Tim Foley. Ask for Article Bank 14. See Brief Bank B-542 for additional briefing on this issue.]
F 8.85 n12 Miscellaneous Issues.
1. Limitation of jury’s consideration of aggravating factors to those listed in CJ 8.85.
2. Aggravating factors must be proven beyond a reasonable doubt and jurors must unanimously agree upon the existence of any aggravating factor.
3. Conviction of defendant of 1st degree murder is not itself an aggravating factor.
4. Consideration of less than extreme mental or emotional disturbance.
5. Instruction that jury remains free to consider the mitigating evidence in determining whether death is the appropriate penalty based on appellant’s individual characteristics and notwithstanding the degree of his culpability for the offense.
Briefing on these issues is available to FORECITE subscribers. Ask for Brief Bank B-563.
F 8.85 n13 (Instruction 1): Scope and Proof Of Mitigation.
See also People v. Noguera (92) 4 C4th 599 [15 CR2d 400] concluding that the defense theory of the case was “adequately covered” by an instruction which informed the jury that “the mitigating factors enumerated in the instructions were ‘only examples’ of mitigating factors that the jurors could consider in assessing the penalty, that they should ‘pay careful attention’ to the factors in mitigation, that they were ‘not required to limit their consideration of mitigating circumstance[s] to these factors’ but could consider ‘other circumstances as reasons for not imposing the death penalty’ and that ‘any mitigating circumstances, standing alone, may be sufficient to support a decision that life without the possibility of parole is the appropriate punishment.’” (Noguera 4 C4th at 647.)
F 8.85 n14 (Instruction 6): Aggravation Limited To Enumerated Factors.
In People v. Espinoza (92) 3 C4th 806, 827 [12 CR2d 682], the court held that an instruction limiting consideration of aggravating factors to those specifically listed in PC 190.3 is appropriate only when “extraneous aggravating evidence not falling within any of the statutory factors has been presented to the jury. [Citations.]”
F 8.85 n15 (Instruction 7): No Double Counting Of Aggravating Factors Which Are Specials.
In People v. Proctor (92) 4 C4th 499, 550 [15 CR2d 340] the court reiterated that the trial court has no sua sponte duty to give the double counting instruction but that it should be given upon request.
F 8.85 n16 (Instruction 10): Lingering Doubt As To Extent Of Defendant’s Guilt.
In People v. Johnson (92) 3 C4th 1183, 1251-52 [14 CR2d 702], the court held that the trial court properly refused to instruct the jury as follows: “It is appropriate for you to consider in mitigation any lingering doubts you may have concerning defendant’s guilt. Lingering doubt is defined as that state of mind between a reasonable doubt and beyond all possible doubt.” The court found no error in refusing this instruction because counsel was able to argue lingering doubt to the jury under the expanded factor (k) mitigation instruction.
NOTE: The concurring opinion of Mosk (with Kennard) recognized that the trial court is required to expressly instruct on “lingering doubt” when “there is a reasonable likelihood that, in the absence of such an advisement, the jury will labor under a misconception in this regard.” (Johnson 3 C4th at 1261, Mosk Conc. Op.) However, Justice Mosk also expressed the view that CJ 8.85 is “inclusive” of “lingering doubt.” (Id. at 1262, fn 4.) [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank B-560.]
[See also FORECITE F 8.85 Inst 10.]
F 8.85 n17 Vagueness Of Sentencing Factors.
In Tuilaepa v. California (94) 512 US 967 [129 LEd2d 750; 114 SCt 2630], the Supreme Court held that the sentencing factors in California are not unconstitutionally vague or overbroad.
F 8.85 n18 Death Penalty Mitigation: Effect Of Death Penalty On The Defendant’s Family.
In People v. Beeler (95) 9 C4th 953, 991-92 [39 CR2d 607], the court recognized, but did not decide, the question of whether the impact of the death penalty upon the defendant’s family would be “constitutionally pertinent mitigation.”
However, People v. Ochoa (98) 19 C4th 353, 456 [79 CR2d 408] concluded that sympathy for a defendant’s family is not a matter that a capital jury can consider in mitigation because such evidence does not relate to the defendant’s character. On the other hand, the defendant may offer evidence that he or she is loved by family members or others since such evidence constitutes indirect evidence of the defendant’s character. Other testimony by family members as to the impact of an execution on them is also admissible if it illuminates some positive quality of the defendant’s background or character. (See also People v. Smithey (99) 20 C4th 936, 1000 [86 CR2d 243] [prosecution argument that jury could not consider sympathy for defendant’s family as mitigating evidence permissible provided that jury was not precluded from considering testimony of defendant’s family to the extent that it was relevant to sympathy for the defendant].)
PRACTICE NOTE: Does this result violate the principle ennunciated in Wardius which precludes the prosecution being given an unfair advantage over the defendant? (Wardius v. Oregon (73) 412 US 470, 473, fn 6 [37 LEd2d 82; 93 SCt 2208] [“state trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial” violate the defendant’s due process rights under the Fourteenth Amendment].) That is, the prosecution is permitted to have the victim’s family testify as to the impact of the death of the victim on them but the defendant cannot present testimony as to the impact of his execution on his family.
F 8.85 n19 Instruction That Jurors Cannot Place Themselves In The Shoes Of The Victim Or Defendant.
A challenge to the instruction set forth below was rejected in People v. Roybal (98) 19 C4th 481, 530 [79 CR2d 487]. The Supreme Court held that the trial court did not err in so instructing the jury because it directed the jurors not to substitute emotion for rational judgment:
“Another thing you cannot do is place yourself in the shoes of the victim or of the defendant…If you were to place yourself in the shoes of the victim or the shoes of the defendant in deciding this case, then you might just say, …if someone killed me, that guy…deserves the death penalty. But that is not your job. Your job is a weighing process that I’ll get to and I’ve already told you about. You can’t do that. By the same token, if you place yourself in the shoes of the defendant the death penalty would never, or at least arguably, would never, ever be imposed by a jury, because the jurors, or at least one of the twelve, would at least say…I wouldn’t like to be killed. So that is not a factor that you can put into the equation….”
However, Roybal is at odds with cases in which the court has held that it is proper at the penalty phase for a prosecutor to invite the jurors to put themselves in the place of the victims and imagine their suffering. (People v. Carpenter (97) 15 C4th 312, 415 [63 CR2d 1]; People v. Medina (95) 11 C4th 694, 778 [47 CR2d 165]; People v. Wash (93) 6 C4th 215, 263-64 [24 CR2d 421]; People v. Haskett (82) 30 C3d 841, 863-64 [180 CR 640]; see also People v. Slaughter (2002) 27 C4th 1187 [120 CR2d 477].)
F 8.85 n20 Aggravation -– Use Of Firearm During Homicide Is Not An Aggravating Factor.
In U.S. v. Cuff (S.D.N.Y. 1999) 38 FSupp2d 282 [1999 US Dist. LEXIS 2594] a federal death penalty case, it was held that use of a firearm in connection with the murders is an improper non-statutory aggravating factor: “A predicate for fulfilling constitutional conditions for an aggravating factor is that the disputed factor be an aggravating factor in the first place. Use of a firearm in connection with a homicide does not meet that predicate for the simple reason that use of a firearm does not, in any rational sense, make a homicide worse, whether one looks at it from the standpoint of the crime, the victim or the perpetrator.”
F 8.85 n21 Death Penalty: Mitigation Investigation.
RESEARCH NOTES: The Jan/Feb 1999 issue of The Champion contains “Mitigation Evidence in Death Penalty Cases,” the first in a series of articles by Russell Stetler. Mr. Stetler is the Director of Investigation and Mitigation at the Capital Defender Officer in New York City. “This article should be required reading for all attorneys and investigators embarking on their first capital case, either at the trial level, or in post-conviction proceedings.” (RECAP.)
Stetler continues his series on mitigation in the April 1999 edition of The Champion with “Mental Disabilities and Mitigation.” In this piece, Stetler addresses “the unique constellation of problems presented by our clients’ mental disabilities in death penalty cases – especially in the area of mitigation evidence.” Stetler warns of the dangers of turning to expert assistance either too late or too soon. Stetler points out that critical work needs to be accomplished by the defense team in preparation for reliable expert assistance.
The June 1999 issue of The Champion contains Stetler’s piece – “Working with the Victim’s Survivors in Death Penalty Cases.” Stetler explains the responsibility of every capital defense team, whether at trial or in post-conviction proceedings, to approach the victim’s survivors. He acknowledges how difficult this contact can be and offers some thoughts on how it can most effectively be accomplished.
F 8.85 n22 No Instruction On Inapplicable Factors.
Under state law, if a defendant refrains from raising some of the mitigating factors, those factors not raised may not be referred to or commented on by the trial court or the prosecutor. (Combs v. Coyle (6th Cir. 2000) 205 F3d 269 [instruction which referenced all seven statutory mitigating factors, rather than just the two raised by defense was error].)
F 8.85 n23 Victim Impact Evidence: Preparation, Discovery and Investigation.
In preparing for victim impact witnesses, counsel must not only aggressively pursue discovery of victim impact evidence and insist on compliance with such discovery, but must also investigate such evidence and potential cross-examination and rebuttal. An excellent source for preparation and investigation ideas is featured in “Preparing for Victim Impact Witnesses,” a subsection of “Dealing with Victim Impact” by Michael Ogul, Assistant Public Defender, Alameda County. See Article Bank # A-75 for this article.
See also FORECITE F 8.85 n21.
F 8.85 n24 Misleading Commutation Instruction Unconstitutionally Discourages Jury From Giving Due Weight To Mitigation.
In Coleman v. Calderon (9th Cir. 2000) 210 F3d 1047, 1050, the jury was given the following instruction:
“You are instructed that under the State Constitution, a Governor is empowered to grant a reprieve, pardon or commutation of a sentence following conviction of the crime.
Under this power, a Governor may in the future commute or modify a sentence of life imprisonment without the possibility of parole to a lesser sentence that would include the possibility of parole.
So that you will have no misunderstandings relating to a sentence of life without the possibility of parole, you have been informed generally as to the Governor’s commutation modification power. You are now instructed, however, that the matter of a Governor’s commutation power is not to be considered by you in determining the punishment for this defendant.
You may not speculate as to if or when a governor would commute the sentence to a lesser one which includes the possibility of parole.”
The 9th Circuit concluded: “Not only was the instruction misleading, it was constitutionally infirm because it discouraged the jury from giving due weight to Coleman’s mitigating evidence. [Citations.] By explaining that the Governor was entitled to commute the sentence and by directing the jury not to speculate about that fact, the instruction ‘invited the jury to assume that the question of [Coleman’s] release would automatically come before’ the Governor. [Citation.] We have previously held that this interference is unconstitutional because it invites the jury to speculate that the only way it can avoid a defendant’s release is to sentence him to death. [Citations.] In this way, the jury was diverted from its task by having its attention focused on the Governor’s ill-defined commutation power rather than the mitigating evidence introduced during the penalty phase. [Citation.]”
F 8.85 n25 Victim Impact: Motion For Video Tape In Lieu Of Live Testimony.
Victim impact testimony “can be problematic because of the potential for emotional outbursts during the testimony of family members.” (U.S. v. O’Driscoll (M.D. Pa. 2002) 203 FSupp2d 334, 340-41; see also U.S. v McVeigh (D. Colo. 1996) 944 FSupp 1478, 1491 [victim impact is “the most problematic” of aggravating factors].)
Hence, in exercising its discretion over prejudicial evidence, the court should “seriously consider” that victim impact evidence be presented by video tape. (O’Driscoll, 203 FSupp2d at 341, fn 6.)
For a motion requesting video tape in lieu of live testimony, see Motion Bank # M-3017.
F 8.85 n26 Victim Impact: Motion To Instruct Witnesses On Limitations Of Testimony.
Victim impact testimony “can be problematic because of the potential for emotional outbursts during the testimony of family members.” (U.S. v. O’Driscoll (M.D. Pa. 2002) 203 FSupp2d 334, 340-41; see also U.S. v McVeigh (D. Colo. 1996) 944 FSupp 1478, 1491 [victim impact is “the most problematical of all the aggravating factors”].)
“Allowing victim impact information to be placed before the jury without proper limiting instructions has the clear capacity to taint the integrity of the jury’s decision on whether to impose death.” (State v. Hightower (96) 680 A2d 649, 661; see also Wayne Logan, Through The Past Darkly: A Survey Of The Uses And Abuses Of Victim Impact Evidence In Capital Trials, 41 Az. L. Rev. 143, 180 (1999) [“[D]ue process and fair play require explicit acknowledgment by the trial court that jurors are not to make use of impermissible impact evidence”].)
Accordingly, special procedures should be considered to limit victim impact testimony from becoming overly emotional and prejudicial. (See e.g. F 8.85 n25 and F 8.85 n27.)
Accordingly, to evaluate the potential prejudice of victim testimony the trial court should:
1) Require the trial court to submit a written statement describing the proposed testimony of each victim impact witness (U.S. v. Glover (D.Kan. 1999) 43 FSupp2d 1217, 1235-36);
2) Adopt instructions to be given the witnesses relating to control of their emotions. (Ibid.)
For a motion requesting cautionary victim impact instructions to witnesses and the jury, see Motion Bank # M-3017.
F 8.85 n27 Victim Impact: Motion For Prior Disclosure Of Proposed Testimony.
In order to evaluate the potential prejudice of victim impact testimony it may be appropriate to require the prosecution to submit a written statement describing the proposed testimony of each victim impact witness. (U.S. v. Glover (D.Kan. 1999) 43 FSupp2d 1217, 1235-36; see also U.S. v. O’Driscoll (M.D. Pa. 2002) 203 FSupp2d 334, 340-41.)
For a motion requesting video tape in lieu of live testimony, see Motion Bank # M-3017.
F 8.85 n28 Victim Impact: Improper Characterization Of The Defendant.
(See United States v. Bernard (5th Cir. 2002) 299 F3d 467 [plain error for victim’s mother to testify that she was sorry that the petitioners’ “hearts were so hard,” and a father’s characterization of the crime as “tragic,” “reckless,” a “useless act of violence,” and “a total disregard for human life,” that occurred when the victims “saw a chance to witness to two young people placing themselves in harm’s way”].)
F 8.85 n29 Federal Death Penalty: Pecuniary Gain Aggravator Requires Expectation Of Gain As A Result Of The Murder.
(See United States v. Bernard (5th Cir. 2002) 299 F3d 467, 483; see also United States v. Chanthadara (10th Cir. 2000) 230 F3d 1237, 1263-64.)
F 8.85 n30 Whether Jurors Will Consider Disturbance Under Factor K.
CJ 8.85 factor (d) provides the following as a potential mitigating factor: "Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance."
The defense has contended that the use of the term "extreme" in factor (d) might mislead the jurors into concluding that "less than extreme" emotional disturbance is not a mitigating factor. Such a conclusion would seem reasonable because factor (d) is the only factor in CJ 8.85 which specifically mentions emotional disturbance. When a generally applicable instruction is specifically made applicable to one aspect of the charge and not repeated with respect to another aspect, the inconsistency may be prejudicial error. (People v. Salas (76) 58 CA3d 460, 474 [129 CR 460]; see also U.S. v. Echeverri (3rd Cir. 1988) 854 F2d 638, 643 [giving a special unanimity instruction as to predicate acts under a RICO charge, but not as to predicate acts under a concurrent CCE (Continuing Criminal Enterprise) charge, violated due process, since jurors may have inferred from this discrepancy that unanimity was not required as to the CCE related predicate acts].)
"Although the average layperson may not be familiar with the Latin phrase inclusio unius est exclusion alterius, the deductive concept is commonly understood . . . ." (People v. Castillo (97) 16 C4th 1009, 1020 [68 CR2d 648] [conc. opn. of Brown, J.]; see also U.S. v. Crane (9th Cir. 1992) 979 F2d 687, 690 [maxim expressio unius est exclusio alterius "is a product of logic and common sense"].) That is how the California Supreme Court reasoned in People v. Dewberry (59) 51 C2d 548, 557 [334 P2d 852]:
The failure of the trial court to instruct on the effect of a reasonable doubt as between any of the included offenses, when it had instructed as to the effect of such doubt as between the two highest offenses, and as between the lowest offense and justifiable homicide, left the instructions with the clearly erroneous implication that the rule requiring a finding of guilt of the lesser offense applied only as between first and second degree murder.
However, in the case of CJ 8.85, factor (d), the California Supreme Court has consistently assumed that reasonable jurors would consider less than extreme emotional disturbance as mitigating under the catch-all factor (k). (People v. Morris (91) 53 C3d 152, 225-26 [279 CR 720]; People v. Cox (91) 53 C3d 618, 681 [280 CR 692]; People v. McPeters (92) 2 C4th 1148, 1192 [9 CR2d 834].)
Besides being contrary to common sense as discussed above, this assumption is also contrary to the reasoning of the Ninth Circuit Court of Appeals in an analogous context in U.S. v. Smith (9th Cir. 2003) 330 F3d 1209. Under the Federal Sentencing Guidelines, guideline USSG 5K2.13 permits a downward departure for diminished mental capacity, but only under certain specified circumstances. Smith argued for a downward departure under the catch-all sentencing factor on the basis of diminished mental capacity which didn’t come within 5K2.13. The 9th Circuit said no, concluding that the clear meaning of 5K2.13 was that diminished mental capacity which didn’t come within its definition could not be the basis for a downward departure at all. Hence, the Ninth Circuit interpreted the guidelines in the same manner as the defense has contended the jurors would interpret CJ 8.85, factor (d).
Thanks to Robert D. Bacon of Oakland, California, for suggesting this argument.
F 8.85 n31 Victimization: As Mental State Defense.
RESEARCH NOTES: See Diana J. English Ph.D., Cathy Spatz Widom, Ph.D., Carol Brandford, MSW, Childhood Victimization and Delinquency, Adult Criminality and Violent Criminal Behavior: A Replication and Extension (February 1, 2002) [a final report presented to the National Institute of Justice under Grant No. 97-IJ-CX-0017. Electronic copy available at www.ncjrs.org; search the abstract database]. This work is an augmentation of previous studies, which identified childhood victimization as an important risk factor in the development of criminal behavior.
F 8.85 Inst 1
Scope And Proof Of Mitigation: General
*To be given after CJ 8.85:
The mitigating circumstances that I have read for your consideration are given merely as examples of some of the factors that a juror may take into account as reasons for deciding not to impose a death sentence in this case. A juror should pay careful attention to each of those factors. Any one of them may be sufficient, standing alone, to support a decision that death is not the appropriate punishment in this case. But a juror should not limit his or her consideration of mitigating circumstances to these specific factors. [¶] A juror may also consider any other circumstances relating to the case or to the defendant as shown by the evidence as reasons for not imposing the death penalty. [¶] A mitigating circumstance does not have to be proved beyond a reasonable doubt. A juror may find that a mitigating circumstance exists if there is any evidence to support it no matter how weak the evidence is. [¶] Any mitigating circumstance may outweigh all the aggravating factors. [¶] A juror is permitted to use mercy, sympathy and/or sentiment in deciding what weight to give each mitigating factor.
Points and Authorities
A substantially similar instruction was given at the defendant’s request in People v. Wharton (91) 53 C3d 522, 600, fn 23 [280 CR 631].
In its original form the second sentence of paragraph 3 required a finding of “substantial evidence” for the jury to consider a mitigating factor. (Ibid.) In rejecting the defendant’s claim on appeal that the “substantial evidence” language implicated the 8th Amendment the court found that the challenged instruction generally favored the defendant and was consistent with 8th Amendment guarantees. The court concluded that nothing in the instruction prevented the jury “from considering a mitigating circumstance no matter how strong or weak the evidence is.” (Id. at 601.) Hence, the “substantial evidence” language has been replaced with the above language from the Wharton decision.
The above instruction implements the defendant’s 8th and 14th Amendment guarantees to due process, equal protection and against cruel and unusual punishment by informing the jury that mitigation is not limited to the enumerated factors but includes any mitigating information that may convince it to impose a sentence less than death. (Blystone v. Penn (90) 494 US 299, 308 [108 LEd2d 255, 265; 110 SCt 1078]; McCleskey v. Kemp (87) 481 U.S. 279, 305-06 [95 LEd2d 262, 287; 107 SCt 1756].) It also correctly informs the jury that mercy, sympathy and sentiment are relevant in giving weight to the mitigating factors. (See People v. Easley (83) 34 C3d 858, 874-80 [196 CR 309].) It further informs the jury that it need not be unanimous as to mitigation per the 8th Amendment. (Mills v. Maryland (88) 486 US 367 [100 LEd2d 384; 108 SCt 1860].)
NOTE: In light of the requirement that each juror individually consider the existence and weight of mitigation (see F 8.85 (Inst 4), FORECITE has modified the form of the Wharton instruction to refer to the individual juror rather than the jury as a whole. This form corresponds to the form of CJ 8.87 (1989 Rev.) which explains the burden of proof and requirement of individual juror determination as to other crimes aggravation.
“And/or” was added to the mercy-sympathy language of the Wharton instruction for sake of clarity.
CAVEAT: Instructional clarification of the meaning and scope of aggravation and mitigation can be critical. In a recent study of ten separate California juries, the following findings were made: Consideration of mitigating evidence — “[F]ully 8 out of the 10 California juries included persons who dismissed mitigating evidence because it did not directly lessen the defendant’s responsibility for the crime itself.” Comprehension of Legal Crimes — Legal Terms — “Of the 30 California jurors interviewed, only 13 showed reasonably accurate comprehension of the concepts of aggravating and mitigating.” (See Haney, Santag and Costanzo, “Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence of Death” 50 Journal of Social Sciences No. 2 (Summer 1994) [This study along with several other death penalty articles is available through: Subscription Dept., Plenum Publishing Corporation, 233 Spring Street, New York, NY 10013. Orders can also be faxed to the Subscription Dept. at 212/807-1047. Single issues are $49.50 each.]
F 8.85 Inst 1.1
Mitigating Factors Argued By Counsel Have Same Stature
As Those Specifically Listed In Instructions
*Add to CJ 8.85:
It is generally the task of defense counsel in their closing argument, rather than the trial court in its instructions, to make clear to the jury which penalty phase evidence or circumstances should be considered extenuating under factor k. Therefore, mitigating factors discussed by counsel during argument have no less stature and must be given no less consideration than those factors which are specifically mentioned in the instructions.
Points and Authorities
The Eighth Amendment requires the jurors to fully consider any mitigating circumstances presented by the evidence. However, if the trial judge refuses to add specific nonstatutory mitigating factors to the instructions, there is a danger the jurors will give such nonstatutory factors less consideration or weight simply because it is not specifically mentioned in the instructions.
Therefore, the defense should have a right to an instruction explaining why certain nonstatutory factors do not appear in the instructions and admonishing that such factors should be give no less consideration than the statutory ones. (See generally People v. Harrison (2005) 35 C4th 208 [relying on argument of counsel to inform the jury as to nonstatutory factors]; see also FORECITE 1.00l.)
F 8.85 Inst 2
Scope And Proof Of Mitigation: Sympathy Alone Is Sufficient To Reject Death
*Add to CJ 8.85:
If the mitigating evidence gives rise to compassion or sympathy for the defendant, the jury may, based upon such sympathy or compassion alone, reject death as a penalty. A mitigating factor does not have to be proved beyond a reasonable doubt. A juror may find that a mitigating circumstance exists if there is any evidence to support it no matter how weak the evidence is.
Points and Authorities
First Sentence: It is beyond dispute that sympathy or compassion is alone sufficient for the jury to reject death and return a verdict of life without parole. (See People v. Lanphear (84) 36 C3d 163, 167 [203 CR 122].) In People v. Taylor (90) 52 C3d 719, 746 [276 CR 391], the jury was instructed in the language of the first sentence of the above proposed instruction. The Supreme Court cited the instruction in concluding that the CALJIC 8.84.2 did not mislead the jurors as to their duties.
Second Sentence: The second sentence of the above proposed instruction sets forth the correct legal standard for determination of the existence of mitigating factors. (See F 8.85a (points and authorities).)
Third Sentence: The 8th and 14th Amendments require that the jury be allowed to consider a mitigating circumstance “no matter how strong or weak the evidence is.” (People v. Wharton (91) 53 C3d 522, 600, fn 23 [280 CR 631].) By promoting a reliable, non-arbitrary, and individualized sentencing determination, this instruction protects the defendant’s federal constitutional rights to be free from cruel and unusual punishment and to due process and equal protection. (8th and 14th Amendments.) (E.g., Sochor v. Florida (92) 504 US 527 [119 LEd2d 326; 112 SCt 2114]; Penry v. Lynaugh (89) 492 US 302, 318 [106 LEd2d 256; 109 SCt 2934]; Clemons v. Mississippi (90) 494 US 738 [108 LEd2d 725; 110 SCt 1441]; McCleskey v. Kemp (87) 481 US 279 [95 LEd2d 262; 107 SCt 1756].)
Accordingly, the above instruction should be given upon request.
CAVEAT: Instructional clarification of the meaning and scope of aggravation and mitigation can be critical. (See FORECITE F 8.85 Inst 1.)
F 8.85 Inst 3
Scope Of Mitigation: No Mitigation Necessary To Reject Death
*Add to CJ 8.85:
A jury may decide, even in the absence of mitigating evidence, that the aggravating evidence is not comparatively substantial enough to warrant death.
Points and Authorities
This is a correct statement of the law. (People v. Duncan (91) 53 C3d 955, 978-79 [281 CR 273]; see also People v. Nicolaus (91) 54 C3d 551, 590-91 [286 CR 628].) Instruction upon this principle is necessary to assure that the jury does not improperly impose the burden on the defendant to present affirmative evidence in mitigation to overcome the existence of the special circumstance and any other aggravating factors. (See Duncan at 978-79.) Without a specific instruction on this principle, there is a danger that the jury will not understand from the standard CALJIC instructions that it may return a verdict of life even if no mitigation exists. The entire focus of the CALJIC instructions are upon a weighing and comparison of the aggravating circumstances with the mitigating circumstances. Without additional instruction, the jurors would conclude that if there is no mitigation then the existence of any aggravation at all would warrant imposition of death.
By promoting a reliable, non-arbitrary, and individualized sentencing determination, this instruction protects the defendant’s federal constitutional rights to be free from cruel and unusual punishment and to due process and equal protection. (8th and 14th Amendments.) (E.g., Sochor v. Florida (92) 504 US 527 [119 LEd2d 326; 112 SCt 2114]; Penry v. Lynaugh (89) 492 US 302, 318 [106 LEd2d 256; 109 SCt 2934]; Clemons v. Mississippi (90) 494 US 738 [108 LEd2d 725; 110 SCt 1441]; McCleskey v. Kemp (87) 481 US 279 [95 LEd2d 262; 107 SCt 1756].)
In People v. Jones (98) 17 C4th 279, 314 [70 CR2d 793] the Supreme Court concluded that this instruction was unnecessary because it is duplicative of CJ 8.85(k). However, the court’s conclusion is erroneous for two reasons.
First, factor “k” does not include the concept set forth in the proposed instruction. Factor “k” merely informs the jury as to other matters which it may consider to be mitigating. (Jones, 17 C4th at 314.) The proposed instruction, on the other hand, informs the jury that it may return a verdict of life even if there is no mitigating evidence at all. Because no other standard CJ instruction informs the jury of this rule, which is a correct construction of the California statute, the proposed instruction is necessary.
Second, the defendant has a federal constitutional right to have the jury instructed on his or her theory of the case. (People v. Wharton (91) 53 C3d 522, 570-72 [280 CR 631]; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196; Burger v. Kemp (87) 483 US 776 [97 LEd2d 638; 107 SCt 3114]; see also PG III(A).) This rule should be equally, if not more, applicable when that theory of the case relates to the defendant’s attempt to persuade the jury to return a verdict of life rather than death. (See Beck v. Alabama (80) 447 US 625 [65 LEd2d 392; 100 SCt 2382] [8th Amendment requires heightened reliability and scrutiny].) Therefore, the defendant should be permitted to clarify and pinpoint legal principles upon which the theory of the defense is founded when those principles, even though arguably included within a more general instruction, are not specifically stated to the jury in the instructions.
Third, it is now recognized that the jury may be given “unbridled” discretion in determining penalty under the federal constitution. (See Buchanan v. Angelone (98) 522 US 269, 276-77 [139 LEd2d 702; 118 SCt 757].) Obviously, such unbridled discretion would include the ability of the jury to reject death even in the absence of mitigation.
In People v. Roybal (98) 19 C4th 481, 525 [79 CR2d 487] the court concluded that under the standard instructions no reasonable juror would assume that death could not be imposed unless there were mitigating circumstances. (See also People v. Ray (96) 13 C4th 313, 355-56 [52 CR2d 296].) However, because there is no question that the proposed instruction is a correct statement of the law, and because the point is not specifically covered in the standard instructions, the instruction should be given upon request.
STRATEGY NOTE: If the instruction is refused, counsel should consider informing the jury during argument that this rule of law is included in the general instructions. (See FORECITE F 1.00l; see also PG VI(C)(10).)
CAVEAT: Instructional clarification of the meaning and scope of aggravation and mitigation can be critical. (See FORECITE F 8.85 Inst 1.)
F 8.85 Inst 4
Individual Juror Determination Of Aggravation And Mitigation
*Modify ¶1 of CJ 8.85 to provide as follows (added language is capitalized):
The People and the defendant are entitled to the individual opinion of each juror. YOU MUST INDIVIDUALLY DECIDE EACH QUESTION INVOLVED IN THE PENALTY DECISION.
Points and Authorities
In People v. Breaux (91) 1 C4th 281, 314-15 [3 CR2d 81], the court found no error in the refusal of the defendant’s request to instruct the jury that the jurors may individually consider mitigation. Although this is a correct statement of the defendant’s Eighth Amendment rights (see McKoy v. North Carolina (90) 494 US 433 [108 LEd2d 369; 110 SCt 1227; see also Breaux at 314), the instruction was properly refused because “[t]he instructions that were given unmistakenly told the jury that each member must individually decide each question involved in the penalty decision.” [Original emphasis.] (Breaux at 315.)
Therefore, at a minimum the defendant has a right to an instruction that each juror “must individually decide each question involved in the penalty decision.” The current CALJIC penalty instructions contain no such language. The above proposed instruction is patterned after the first paragraph of CJ 17.40.
By promoting a reliable, non-arbitrary, and individualized sentencing determination, this instruction protects the defendant’s federal constitutional rights to be free from cruel and unusual punishment and to due process and equal protection. (8th and 14th Amendments.) (E.g., Sochor v. Florida (92) 504 US 527 [119 LEd2d 326; 112 SCt 2114]; Penry v. Lynaugh (89) 492 US 302, 318 [106 LEd2d 256; 109 SCt 2934]; Clemons v. Mississippi (90) 494 US 738 [108 LEd2d 725; 110 SCt 1441]; McCleskey v. Kemp (87) 481 US 279 [95 LEd2d 262; 107 SCt 1756].)
NOTE: Another strategy, in lieu of or in addition to requesting the above instruction, would be to seek modification of CALJIC 8.87 to preclude individual determination as to other crimes evidence unless the jury is also instructed that its other determinations are also individual. (See F 8.87 Inst 2.)
CAVEAT: Instructional clarification of the meaning and scope of aggravation and mitigation can be critical. (See FORECITE F 8.85 Inst 1.)
F 8.85 Inst 5
Disregard Inapplicable Factors: Absence Of Mitigation Is Not Aggravation
*Add at end of CJ 8.85 ¶ 1:
Only those factors which are applicable on the evidence adduced at trial are to be taken into account in the penalty determination. All factors may not be relevant and a factor which is not relevant to the evidence in a particular case should be disregarded. The absence of a statutory mitigating factor does not constitute an aggravating factor.
Points and Authorities
Defendant objects to including the following inapplicable factors in CJ 8.85: ____________________ [Insert inapplicable factors]. The inclusion of these inapplicable factors in the list of aggravating and mitigating factors violates the defendant’s federal constitutional right to a reliable and fair sentencing process under the 8th and 14th Amendments. However, should the inapplicable factors be included in the instruction over this objection, defendant requests the above clarifying instruction which is a correct statement of the law. (See People v. Bonin (88) 46 C3d 659, 699 [250 CR 687]; People v. Melton (88) 44 C3d 713, 769 [244 CR 867].)
By promoting a reliable, non-arbitrary, and individualized sentencing determination and by protecting against jury consideration of matters which are constitutionally irrelevant, constitutionally protected, arbitrary, or discriminatory, this instruction protects the defendant’s federal constitutional rights to be free from cruel and unusual punishment and to due process and equal protection. (8th and 14th Amendments.) (E.g., Dawson v. Delaware (92) 503 US 159 [117 LEd2d 309; 112 SCt 1093]; Sochor v. Florida (92) 504 US 527 [119 LEd2d 326; 112 SCt 2114]; Penry v. Lynaugh (89) 492 US 302, 318 [106 LEd2d 256; 109 SCt 2934]; Clemons v. Mississippi (90) 494 US 738 [108 LEd2d 725; 110 SCt 1441]; McCleskey v. Kemp (87) 481 US 279 [95 LEd2d 262; 107 SCt 1756].)
CAVEAT: Instructional clarification of the meaning and scope of aggravation and mitigation can be critical. (See FORECITE F 8.85 Inst 1.)
See FORECITE F 8.85 n22.
F 8.85 Inst 6
Aggravation Limited To Enumerated Factors
*Supplement CJ 8.85 with the following:
The factors in the above list which you determine to be aggravating circumstances are the only ones which the law permits you to consider. You are not allowed to consider any other facts or circumstances as the basis for deciding that the death penalty would be an appropriate punishment in this case.
Points and Authorities
People v. Boyd (85) 38 C3d 762, 775 [215 CR2d 1] held that factors (a), (b), (c), and (i) can be aggravating and the remaining factors are mitigating only. Hence, to label any of the remaining factors as “aggravating” would violate the Eighth Amendment. (See Zant v. Stephens (83) 462 US 862, 865 [77 LEd2d 235; 103 SCt 2733] [the impact of Tuilaepa v. California (94) 512 US 967 [129 LEd2d 750; 114 SCt 2630] on Zant is unclear because Tuilaepa only considered what significance to assign the age factor (i)].
The language of CALJIC 8.86 and 8.87 is too narrow because it does not prevent the jury from considering non-criminal aggravating evidence. Therefore, the defendant has a right, upon request, to an instruction that only the factors specified in the statute may be considered in aggravation. (People v. De Santis (92) 2 C4th 1198, 1252-53 [9 CR2d 628]; People v. Caro (88) 46 C3d 1035, 1065 [251 CR 757]; People v. Williams (88) 45 C3d 1268, 1324 [248 CR 834]; People v. Hamilton (88) 45 C3d 351, 375 [247 CR 31]; see also People v. Williams (97) 16 C4th 153 [66 CR2d 123] [“It is not clear… that Tuilaepa undermined Zant’s suggestion that states may not, consistent with due process, label ‘aggravating’ factors ‘that actually should militate in favor of a lesser penalty, such as perhaps the defendant’s mental illness’ [Citation].” (Williams, 16 C4th at 272.) Hence, the defendant should have the right, especially upon request, to an instruction which specifically informs the jury which factors may be considered as aggravating.) An instruction similar to the one above was cited with approval in Hamilton and Caro.
F 8.85 Inst 21.
PRACTICE NOTE: A limiting instruction at the time the evidence is admitted may also be appropriate. See FORECITE F 2.09 n2.
F 8.85 Inst 7
No Double Counting Of Aggravating
Factors Which Are Specials
*Add at end of CALJIC 8.85 & 2 ("factor a"):
However, you may not double count any "circumstances of the offense" which are also "special circumstances." That is, you may not weigh the special circumstance[s] more than once in your sentencing determination.
Points and Authorities
The literal language of 190.3(a) (CALJIC 8.85(a)) may allow the jury to "double count" any special circumstances unless the jury is told "not to do so." (People v. Melton (88) 44 C3d 713, 768, 244 CR 867; see also People v. Morris (91) 53 C3d 152, 224, 279 CR 720.) On defendant’s request the jury should be admonished not to double count the specials. (Melton at 768; but see People v. Barnett (98) 17 C4th 1044, 1080 [74 CR2d 121].) [See also Rucker and Overland 3 Cal. Crim. Forms and Instructions ‘ 43:16B which proposes another version of this instruction. (The Rucker and Overland instruction is also set forth in the CACJ/CPDA Manual 1990 Ed., p. 519.)]
By promoting a reliable, non-arbitrary, and individualized sentencing determination and by protecting against jury consideration of matters which are constitutionally irrelevant, constitutionally protected, arbitrary, or discriminatory, this instruction protects the defendant’s federal constitutional rights to be free from cruel and unusual punishment and to due process and equal protection. (8th and 14th Amendments.) (E.g., Dawson v. Delaware (92) 503 US 159 [117 LEd2d 309; 112 SCt 1093; Sochor v. Florida (92) 504 US 527 [119 LEd2d 326; 112 SCt 2114]; Penry v. Lynaugh (89) 492 US 302, 318 [106 LEd2d 256; 109 SCt 2934]; Clemons v. Mississippi (90) 494 US 738 [108 LEd2d 725; 110 SCt 1441]; McCleskey v. Kemp (87) 481 US 279 [95 LEd2d 262; 107 SCt 1756].)
F 8.85 Inst 8
Cautionary & Limiting: Victim Impact
*Add to CJ 8.85:
Evidence has been introduced for the purpose of showing the specific harm caused by the defendant’s crime. Such evidence, if believed, was not received and may not be considered by you to divert your attention from your proper role of deciding whether defendant should live or die. You must face this obligation soberly and rationally, and you may not impose the ultimate sanction as a result of an irrational, purely subjective response to emotional evidence and argument. On the other hand, evidence and argument on emotional though relevant subjects may provide legitimate reasons to sway the jury to show mercy.
Points and Authorities
In People v. Edwards (91) 54 C3d 787 [1 CR2d 696], the California Supreme Court, following Payne v. Tennessee (91) 501 US 808 [115 LEd2d 720; 111 SCt 2597] held that factor (a) of section 190.3 allows evidence and argument on the specific harm caused by the defendant, including the impact on the family of the victim. This holding only encompasses evidence that logically shows that the harm was caused by the defendant. (Edwards at 835-36.)
Edwards discussed several principles which limit consideration of such evidence: (1) "[T]here are . . . limits on emotional evidence and argument"; (2) "[T]he jury must face its obligation soberly and rationally, and should not be given the impression that emotion may reign over reason"; (3) "[E]vidence and argument on emotional though relevant subjects . . . could provide legitimate reasons to sway the jury to show mercy or to impose the ultimate sanction"; and (4) "[I]rrelevant information or inflammatory rhetoric that diverts the jury’s attention from its proper role or invites an irrational, purely subjective response should be curtailed." (Edwards quoting People v. Haskett (82) 30 C3d 841, 864 [180 CR 640].)
In light of these principles an instruction should be given limiting the jury’s consideration of victim impact evidence. (See Cargle v. State (Okla. App. 1995) 909 P2d 806, 836; Lane, J. concurring [sentencing "is not a matter of balancing or comparing lives" and it is "not a contest to determine who has the better right to live and who most deserves to die."].)
By promoting a reliable, non-arbitrary, and individualized sentencing determination and by protecting against jury consideration of matters which are constitutionally irrelevant, constitutionally protected, arbitrary, or discriminatory, this instruction protects the defendant’s federal constitutional rights to be free from cruel and unusual punishment and to due process and equal protection. (8th and 14th Amendments.) (E.g., Dawson v. Delaware (92) 503 US 159 [117 LEd2d 309; 112 SCt 1093]; Sochor v. Florida (92) 504 US 527 [119 LEd2d 326; 112 SCt 2114]; Penry v. Lynaugh (89) 492 US 302, 318 [106 LEd2d 256; 109 SCt 2934]; Clemons v. Mississippi (90) 494 US 738 [108 LEd2d 725; 110 SCt 1441]; McCleskey v. Kemp (87) 481 US 279 [95 LEd2d 262; 107 SCt 1756].)
NOTES: As set forth above the specific harm must be caused by the defendant. When appropriate, counsel may request an instruction on the jury’s duty to find causation as a preliminary fact per EC 402. (See FORECITE F 2.001a; see CJ 3.40, CJ 3.41 and FORECITE F 3.40 et seq. and F 3.41 et seq. regarding causation principles.)
A special instruction on the statutory factors should be given when victim impact evidence is presented. (See F 8.87 Inst 1.)
CAVEAT: "Singling out a category of evidence for special consideration may cause the jury to give it undue weight in its deliberations." (People v. Wright (88) 45 C3d 1126, 1153 [248 CR 600].) On the other hand, failure to request a cautionary instruction may waive an important appellate issue. These conflicting considerations should be weighed in each individual case.
F 8.85 Inst 9
Lingering Doubt As To Guilt.
See FORECITE F 763.3 (Factor a) Inst 9 (a-e).
F 8.85 Inst 10
Lingering Doubt As To Extent Of
Defendant’s Guilt
*Add at end of CALJIC 8.85(a):
A juror who voted for conviction at the guilt phase may still have a lingering or residual doubt as to whether the defendant _________________ [insert appropriate element, e.g., was the actual shooter, intended to kill, premeditated and deliberated, etc.]. Such a lingering or residual doubt, although not sufficient to leave you with a reasonable doubt at the guilt phase, may still be considered as a mitigating factor at the penalty phase. Each individual juror may determine whether any lingering or residual doubt is a mitigating factor and may assign it whatever weight the juror feels is appropriate.
Points and Authorities
In People v. Cox (1991) 53 CA3d 618, 678, fn 20, the court stated that, pursuant to PC 1093(f), the trial court may be required to give a "properly formulated" lingering doubt instruction as to the extent of the defendant’s guilt. (See also People v. Thompson (1988) 45 CA3d 86, 134-35; but see People v. Hartsch (2010) 49 CA4th 472, 512-13 [lingering doubt instruction not statutorially “required”].) In Thompson the lingering doubt instruction was held properly refused because it invited "readjudication of matters resolved at the guilt phase." (45 CA3d at 135.) The above instruction satisfies this concern.
In Cox such an instruction was held properly refused because the instruction — which stated the jury "must" consider residual doubt as mitigation — invaded the jury’s responsibility to determine whether or not a factor is mitigating. (Cox at 678-79, fn 21.) While it could be argued that lingering doubt can only be mitigating [see, e.g., Issue Checklist III, 8.85(f)4] the above instruction satisfies the Cox concern by allowing the jury to determine whether any residual doubt is mitigating.
The Cox instruction was also criticized because it "arbitrarily stressed certain items of evidence." (Cox at 678-79, fn 21.) However, when a lingering doubt instruction focuses upon a theory of the defense which seeks to negate an element of the offense then the instruction is a proper instruction which assists the jury in pinpointing the crux of the defense. (See People v. Howard (88) 44 C3d 375, 442 [243 CR 842]; People v. Wright (85) 45 C3d 1126, 1136-37 [248 CR 600]; People v. Rincon-Pineda (75) 14 C3d 864, 885 [123 CR 119]; see also pinpoint instruction discussion at FORECITE PG III(C).) Hence, a lingering doubt instruction which focused upon intent to kill and premeditation and deliberation was given with apparent approval in People v. Nicolaus (91) 54 C3d 551, 586 [286 CR 628]; see also, F 8.85 Inst 14 [individualized consideration for accomplice]; Rupe v. Wood (9th Cir. 1996) 93 F3d 1434 [evidence showing the defendant played a lesser role in the crime than contended by the prosecution would properly be admitted. ‘[R]elative culpability is an appropriate mitigating factor.’].)
By promoting a reliable, non-arbitrary, and individualized sentencing determination, this instruction protects the defendant’s federal constitutional rights to be free from cruel and unusual punishment and to due process and equal protection. (8th and 14th Amendments.) (E.g., Sochor v. Florida (92) 504 US 527 [119 LEd2d 326; 112 SCt 2114]; Penry v. Lynaugh (89) 492 U.S. 302, 318 [106 LEd2d 256; 109 SCt 2934]; Clemons v. Mississippi (90) 494 US 738 [108 LEd2d 725; 110 SCt 1441]; McCleskey v. Kemp (87) 481 US 279 [95 LEd2d 262; 107 SCt 1756].)
In sum, the above instruction is properly formulated and should be given upon request.
NOTE: A request for Instruction 2 could be coupled with an alternative request to present evidence of other wrongful executions. [For a proposed definition of "lingering doubt" see Manual at 518.]
The USSC has rejected an 8th Amendment claim to consideration of lingering doubt. (Franklin v. Lynaugh (88) 487 US 164 [101 LEd2d 155; 108 SCt 2320].)
[See also FORECITE F 8.85 n16.]
F 8.85 Inst 11
Consideration Of Limited-Purpose Evidence
For Mitigation At Penalty Trial
*Add to CJ 8.85:
The following evidence was admitted for the limited purpose of __________ at the guilt trial: __________. At the penalty trial, your consideration of such evidence is not so limited. You may consider such evidence as mitigating evidence for the purpose of your penalty determination.
Points and Authorities
When evidence is offered at the guilt phase for a limited purpose, the jury is generally instructed upon that limited purpose (e.g., CJ 2.09) and its consideration of that evidence is limited by such instruction. However, evidence which is limited at the guilt trial may be considered as evidence of mitigation assuming the reliability of the evidence is sufficiently established. (See People v. Stanley (95) 10 C4th 764, 839 [42 CR2d 543]; see also, Green v. Georgia (79) 442 US 95, 97 [60 LEd2d 738; 99 SCt 2150].) In such cases, the jury should be expressly instructed that the evidence may be considered for mitigating purposes as required by the 8th Amendment of the federal constitution.
F 8.85 Inst 12
Jury To Disregard Specified Evidence
From The Guilt Trial
*Add to CJ 8.85:
The following evidence, which was admitted into evidence at the guilt trial, may not be considered by you for any purposes at the penalty trial: _________________________________.
Points and Authorities:
When evidence has been presented at the guilt trial which is irrelevant to the penalty determination, the court should instruct the jury upon request as to what specific irrelevant evidence it should ignore. (See People v. Medina (95) 11 C4th 694, 770-71 [47 CR2d 165].)
F 8.85 Inst 13
Cautionary Instruction Regarding Charts,
Graphs, Summaries, Etc.
*Add to CJ 8.85:
[See FORECITE F 1.02d.]
F 8.85 Inst 14
Individualized Consideration For Accomplice
*Add to CJ 8.85:
At the guilt phase, you were told that [those who directly and actively commit the crime and those who aid and abet the crime are equally guilty] [and] [a conspirator is liable for the natural and probable consequences of any act of a co-conspirator to further the object of the conspiracy]. These principles of [aiding and abetting] [and] [conspiracy] are not applicable to the determination of which sentence shall be imposed upon defendant __________. Your sentencing determination must be based entirely upon the individual culpability and characteristics of defendant __________ as set forth in these penalty phase instructions.
Points and Authorities
When guilt is predicated upon vicarious liability, the jury is instructed that a person who aids and abets the perpetrator of the crime is "equally guilty" of the crime committed by the perpetrator. (CJ 3.00; but see FORECITE F 3.01n.) A similar instruction is given with regard to a conspirator who participates in the conspiracy but does not personally commit the target offense. (CJ 6.11.) These principles of vicarious liability are inapplicable to the penalty determination which must be based upon the individual culpability and characteristics of the defendant. It is "well established" that the 8th and 14th Amendments require "individualized sentencing determinations in death penalty cases." (Stringer v. Black (92) 503 US 222 [117 LEd2d 367, 378-39; 112 SCt 1130]; Clemons v. Mississippi (90) 494 US 738, 752 [108 LEd2d 725; 110 SCt 1441].) The 8th and 14th Amendments allow a sentence of death to be imposed only upon a defendant "shown to be culpable due to his own actions, intentions, and expectations, not those of his cohorts." (Green v. State (84) 682 SW2nd 271, 287 (applying Enmund v. Florida (82) 458 US 782 [73 LEd2d 1140; 102 SCt 3368]); see also, Tison v. Arizona (87) 481 US 137 [95 LEd2d 127; 107 SCt 1676]; Martinez v. State (94) 899 SW2d 655, 657.) Hence, the fact that the defendant played a lesser role in the offense should be given mitigating consideration and any aggravating facts which relate to the accomplice and not the defendant should not be used as aggravating evidence against the defendant.
CJ 8.85(j) seeks to convey this point to the jury with the following language: "You shall consider, take into account and be guided by the following factors, if applicable … (j) whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor."
This instruction is inadequate for several reasons. First, this instruction does not address conspiracy at all. Second, to the extent that it addresses aiding and abetting, it does not specifically inform the jury that the "equally guilty" concept should not be considered in determining the penalty. Third, the instruction is specifically limited to situations where the defendant’s participation in the commission of the offense was "relatively minor." This unnecessarily limits the jury’s consideration of the extent to which the defendant actually participated in the offense. For example, the defendant may have actually participated in a robbery in which the codefendant was the triggerman. Under these circumstances, the jury might not consider that the defendant’s participation was "relatively minor" and, therefore, under the current CALJIC instruction, would not give mitigating effect to the fact that the accomplice was the triggerman. Hence, CJ 8.85(j) should be modified to inform the jury to consider all aspects of the relative participation of the defendant and the accomplice in order to reliably correlate the appropriate sentence to the defendant’s actual participation. (In this regard it should be noted that "factor (k)" CJ 8.85(k) — the "catch all" factor — does not encompass the concept discussed herein because it merely informs the jury to consider "any other circumstances which extenuates the gravity of the crime …." Thus, the fact that the defendant was not the triggerman does not extenuate the gravity of the crime — the crime is just as severe regardless of who pulled the trigger — and, therefore under factor "k" the jury is not told to consider any circumstances which minimized the defendant’s culpability for that crime.)
Accordingly, CJ 8.85(j) should be replaced and/or supplemented in order to assure that a reliable, individualized sentence is imposed in accord with the 8th Amendment of the federal constitution.
See also, F 8.85 Inst 10 [lingering doubt as to extent of defendant’s guilt; F 8.85(k) n1 [reliable mitigating evidence is admissible at penalty phase.]
F 8.85 Inst 15
Defendant’s Role As Accomplice Rather Than
Perpetrator As Mitigation
*Add to CJ 8.85:
The fact that the defendant was [an accomplice] [a coconspirator] who did not personally commit [the killing] [all of the charged acts] may be considered by you as mitigation. [The fact that the defendant was not the actual killer may be considered as a mitigating factor.]
Points and Authorities
[See F 8.85 Inst 14.]
F 8.85 Inst 16
No Adverse Inference As To Penalty From Failure Of
Defendant To Testify At Guilt Or Penalty Trial.
See FORECITE F 761.2 Inst 13.
F 8.85 Inst 17
Jury Consideration Of Mercy Based
On Religious Or Deeply Held Beliefs
*Add to CJ 8.85:
In deciding whether or not to give the defendant mercy, you may not rely on emotional responses that are not rooted in the aggravating and mitigating evidence. However, you may take into account your personal faith and/or deeply-held beliefs when deciding whether to exercise mercy on behalf of the defendant.
Points and Authorities
(Jones v. Kemp (N.D. Ga., 1989) 706 FSupp 1534, 1560; see also People v. Lewis (2001) 26 C4th 334, 389-390.) In People v. Lewis (26 C4th at 389-390), the California Supreme Court distinguished between the emotional responses of the jurors B which may not be considered B and the personal faith and deeply-held beliefs of jurors which may be considered. (See also Jones v. Kemp (N.D. Ga. 1989) 706 FSupp 1534, 1560 [cited with approval by Lewis court].) Hence, even if "pure mercy" cannot be considered as an emotional response which is not rooted in the aggravating and mitigating evidence (see People v. McPeters (92) 2 C4th 1148, 1195 [9 CR2d 834]; see also People v. Lewis (2001) 26 C4th at 393), the jury should be permitted to consider mercy in the context of personal faith and deeply-held beliefs since such mercy would neither be emotional nor whimsical. (See Lewis, 26 C4th at 389-390, 393; see also People v. Edwards (91) 54 C3d 787, 835-36 [1 CR2d 696] ["[E]vidence and argument on emotional though relevant subjects…could provide legitimate reasons to sway the jury to show mercy or to impose the ultimate sanction"]; People v. Easley (83) 34 C3d 858, 874-80 [196 CR 309] [mercy, sympathy and sentiment are relevant in giving weight to the mitigating factors].)
CAVEAT: While this instruction is logically required by Lewis the jury must not be permitted to rely on religious beliefs to not consider mercy. (See Romine v. Head (11th Cir. 2001) 253 F3d 1349, 1366-1367 [improper to invoke authority of court, legal scholar or biblical doctrine to persuade jury not to consider mercy]; see also Drake v. Kemp (11th Cir. 1995) 762 F2d 1449, 1459.)
F 8.85 Inst 18
Scope And Proof Of Mitigation:
Jurors Must Independently Consider Guilt
And Penalty Evidence For Mitigation
*Add to CJ 8.85:
In determining whether mitigating circumstances exist, jurors have an obligation to make an independent and objective analysis of all the relevant evidence. Arguments of counsel or a party do not relieve jurors of this responsibility. Jurors must consider the totality of the circumstances of the crime and the defendant, as established by the evidence presented in the guilt and penalty phases of the trial. Neither the prosecution’s nor the defendant’s insistence on the existence or nonexistence of mitigating circumstances is binding upon the jurors.
Points and Authorities
See Holloway v. State (NV 2000) 6 P3d 987 [such an instruction needed in a case where the defendant refused to present mitigating evidence at the sentencing phase and prosecutor argued that no mitigating factors existed]; see also generally Lockett v. Ohio (78) 438 US 586 [57 LEd2d 973; 98 SCt 2954]; Penry v. Johnson (2001) 532 US 782 [150 LEd2d 9; 121 SCt 1910].)
NOTE: If guilt phase evidence has been admitted for a limited purpose consideration of the evidence at the penalty phase may have to be specifically limited. (See e.g., FORECITE F 8.85 Inst 11 and FORECITE F 8.85 Inst 12.)
F 8.85 Inst 19
Definition Of Mitigating Circumstance:
Does Not Constitute Justification Or Excuse
*Add to CJ 8.85:
A mitigating circumstance does not constitute a justification or excuse for the offense in question. A mitigating circumstance is a fact about the offense, or about the defendant, which in fairness, sympathy, compassion or mercy, may be considered in extenuating or reducing the degree of moral culpability or which justifies a sentence of less than death although it does not justify or excuse the offense.
Points and Authorities
See People v. Carter (2003) 30 C4th 1166, n 25 [trial judge may properly give this instruction].
F 8.85 Inst 20
Mental State Evidence Limited To Mitigation
*Add to CJ 8.85:
The defendant has presented evidence regarding his/her mental state. This evidence was admitted for the purposes of mitigation. You must not consider it [for any other purpose] [in aggravation].
Points and Authorities
In general, "evidence regarding a defendant’s mental state is not admissible in aggravation at the penalty phase." (People v. Smith (2005) 35 C4th 334, 355 [holding that mental state evidence is admissible in aggravation when the "defendant’s bizarre behavior while committing the crime@ permitted the jury to infer that the defendant acted with sexual sadism].)
See also FORECITE F 8.85(k) Inst 1; F 8.85 Inst 21.
PRACTICE NOTE: A limiting instruction at the time the evidence is admitted may also be appropriate. See FORECITE F 2.09 n2.
F 8.85 Inst 21
Limiting Instruction When Mental State
Evidence Admissible As To Aggravation
*Add to CJ 8.85:
The testimony of ________________ (expert) was received in evidence and may be considered by you only for the limited purpose of explaining, if it does, the meaning of certain pieces of evidence offered in this case, to explain the general phenomena of ___________________ (e.g., sexual fantasies) and to provide information on the subject of the behavior and mental processes of _______________ (children who are abducted for the purpose of violent sexual assault and persons who commit such crimes). He testified to a generalized body of knowledge. However, should you find that there are facts in this case which are or may be explained by such testimony you may consider the testimony for that purpose. However, such evidence was not received and may not be considered by you, to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. Further, _______________ (expert) did not examine _____________ (defendant) nor did he express any opinion about the defendant or how the crime actually occurred.
[Source: Instruction given in People v. Smith (2005) 35 C4th 334, 360-61.]
Points and Authorities
Generally mental state evidence is admissible only for purposes of mitigation. (See FORECITE F 8.85 Inst 20.) However, People v. Smith (2005) 35 C4th 334, 355-56 held that in certain unique circumstances (e.g., bizarre behavior suggesting sexual sadism) mental state evidence may be considered in aggravation.
PRACTICE NOTE: A limiting instruction at the time the evidence is admitted may also be appropriate. See FORECITE F 2.09 n2.