Return to CALJIC Part 5-8 – Contents
F 8.87 Inst 1
Clarification of Statutory Scheme In Light Of Victim Impact Evidence
*Add to CJ 8.87:
The determination of punishment turns on the personal moral culpability of the defendant.
Such culpability is assessed in accordance with the specified factors of aggravation and mitigation upon which I have already instructed you.
For purposes here, “aggravation” means that which increases the defendant’s personal moral culpability above the level of blameworthiness that inheres in the capital offense. By contrast, “mitigation” means that which reduces his culpability below that level.
Thus, the circumstances of the crime itself can be either aggravating or mitigating. Their character depends on the greater or lesser blameworthiness they reveal — ranging, for example, from the most intentional of willful, deliberate, and premeditated murders to the most accidental of felony murders.
Other violent criminal activity is similar. Its presence is aggravating, suggesting as it does that the capital offense is the product more of the defendant’s basic character than of the accidents of his situation. Its absence is obviously mitigating, carrying the opposite suggestion.
So too prior felony convictions. Their existence is aggravating. They reflect on the relatively greater contribution of character than situation. Moreover, they reveal that the defendant had been taught, through the application of formal sanction, that criminal conduct was unacceptable — but had failed or refused to learn his lesson. By contrast, the nonexistence of such convictions plainly is mitigating.
The age of the defendant can also be either aggravating or mitigating.
The existence of any of the following circumstances, however, is mitigating and mitigating only: extreme mental or emotional disturbance; victim participation or consent; reasonable belief in moral justification or extenuation; extreme duress or substantial domination; impairment through mental disease or defect or through intoxication; status as an accomplice and minor participant; and any other extenuating fact. By contrast, the nonexistence of any of these circumstances is not and cannot be aggravating. The absence of mitigation does not amount to the presence of aggravation.
Points and Authorities
The defendant has a right to clear instructions which “guide and focus the jury’s objective consideration of particularized circumstances of the individual offense and the individual offender….” [Citations and internal punctuation omitted.] (People v. Benson (90) 52 C3d 754, 806 [276 CR 827].)
Moreover, the above instruction is especially appropriate in light of the “practically unimpeded” introduction of “victim impact” evidence which “always threatens to pass the bounds of materiality and often does….” (Bacigalapo (91) 1 C4th 103, 152 [2 CR2d 335], Mosk, J., concurring.)
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 U.S. 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].)
NOTE: The defendant’s background can only be mitigating. (People v. Hardy (92) 2 C4th 86, 207 [5 CR2d 796].)
See Article Bank # A-75 for an article discussing victim impact by Michael Ogul, Assistant Public Defender, Alameda County.
See FORECITE F 8.85 n25, F 8.85 n26, and F 8.85 n27.
F 8.87 Inst 2
No Prosecution Right To Non-Unanimity Instruction
*Delete last ¶ of CJ 8.87 (1989 Revision)
Points and Authorities
Paragraph 3 of CJ 8.87 specifically tells the jury that it is “not necessary for all jurors to agree” as to other unadjudicated crimes. This states the law as interpreted by the California Supreme Court (People v. Caro (88) 46 C3d 1035, 1057 [251 CR 757]) as does the comparable rule regarding mitigation. (People v. Breaux (91) 1 C4th 281, 314 [3 CR2d 81].) However, because Breaux precludes the defendant from obtaining a specific non-unanimity instruction as to mitigation, the prosecution should not be permitted to obtain such an instruction in the specific context of other crimes aggravation. “There should be absolute impartiality as between the People and the defendant in the matter of instructions ….” (People v. Moore (54) 43 C2d 517, 526-27 [275 P2d 485]; accord Reagan v. US (1895) 157 US 301, 310 [39 LEd 709; 15 SCt 610].)
Lack of parity skews the proceeding toward death thus promoting random and arbitrary imposition of death in violation of the federal constitution rights to be free from cruel and unusual punishment and to due process and equal protection. (8th and 14th Amendments.) (Sochor v. Florida (92) 504 US 527 [119 LEd2d 326; 112 SCt 2114]; Gregg v. Georgia (76) 428 US 153 [49 LEd2d 859; 96 SCt 2909].)
Hence, the third paragraph of 8.87 should be deleted.
NOTE: Alternatively, impartiality of the instructions could be obtained by adding non-unanimity language to the instruction which defines the burden of proof regarding mitigation so that instruction and 8.87 are symmetrical. (See F 8.85a.)
CAVEAT: The U.S. Supreme Court has not resolved the issue of whether juror unanimity is required as to unadjudicated crimes. Therefore, the issue should be preserved by request for a unanimity instruction. (See FORECITE Instruction Issue Checklist, F 8.86/F 8.87 #8.)
F 8.87 Inst 3
Jury Must Determine Whether Unadjudicated Acts Were “Violent” And “Criminal”
*Add at end of CJ 8.87:
You may not consider as aggravation any evidence of unadjudicated acts allegedly committed by defendant unless you first determine beyond a reasonable doubt that (1) the defendant committed the acts; (2) the acts involved the use or attempted use of force or violence or the expressed or implied threat to use force or violence; [(3) the acts were criminal].
Points and Authorities
The prosecution is obligated to prove beyond a reasonable doubt unadjudicated acts offered as aggravation under 190.3(c). (People v. Morales (89) 48 C3d 527, 565 [257 CR 64].) To do so, not only must the prosecutor prove that defendant committed the acts in question but under the plain language of factor (c) it must also be proven that the acts were “violent” and “criminal.” (See e.g., People v. Figueroa (86) 41 C3d 714 [224 CR 719].)
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]; see also EC 403.)
NOTE: [See Brief Bank # B-926 for additional briefing on this issue is available to FORECITE subscribers. Briefing and an unpublished opinion on this issue.]
CAVEAT: By strategically failing to request instruction on the elements of the offense counsel may be waiving defendant’s right to a factual finding on criminality since, without the elements the jury has no way of making such a determination.
F 8.87 Inst 4
Unanimity Not A Requisite To Consideration Of Mitigating Evidence
*Add at end of CJ 8.87:
An individual juror may consider something as a mitigating factor even if none of the other jurors consider that factor to be mitigating. There is no need for the jurors to unanimously agree on the presence of a mitigating factor before considering it.
Points and Authorities
It is settled that a requirement of unanimity improperly limits consideration of mitigating evidence in violation of the 8th Amendment of the federal constitution. (See McKoy v. North Carolina (90) 494 US 433, 442-43 [108 LEd2d 369; 110 SCt 1227]; see also, Mills v. Maryland (88) 486 US 367 [100 LEd2d 384; 108 SCt 1860].) Although the California Supreme Court has held that it is not error to reject a defense request for an instruction explaining that unanimity is not a requisite for consideration of mitigating evidence (see People v. Breaux (91) 1 C4th 281, 314 [3 CR2d 81],) the 8th Amendment issue has not been resolved in federal court. Therefore, the above instruction should be requested to preserve the federal constitutional issue for federal court. Moreover, such an instruction is needed to promote reliability in death penalty cases. (See Clark v. Tansy (N.M. 1994) 882 P2d 527, 530-31.)