SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 760 Notes
TABLE OF CONTENTS
F 760 Note 1 Death Penalty: Introduction To Penalty Phase—CALCRIM Cross-References And Research Notes
F 760 Note 2 Meaning Of Life Without Parole: Legal Principles
F 760 Note 3 Factual Principles: LWOP
F 760 Note 4 Meaning Of LWOP: Strategy And Tactics
F 760 Note 5 Death Penalty: Duty Of Jurors To Find Preliminary Facts
Return to Series 700 Table of Contents.
F 760 Note 1 Death Penalty: Introduction To Penalty Phase—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 763(¶ 3)
CALCRIM 766(¶ 5 & 6)
Research Notes:
See CLARAWEB Forum, Homicide—Series 500-700.
F 760 Note 2 Meaning Of Life Without Parole: Legal Principles
1. Simmons v. South Carolina (1994) 512 US 154 [129 LEd2d 133; 114 SCt 2187]. Because Simmons teaches that the jury’s accurate understanding of the sentencing alternatives is compelled by federal due process principles and the 8th Amendment, instruction as to the meaning of LWOP should be given upon request. (See also Shafer v. South Carolina (2001) 532 US 36 [149 LEd2d 178; 121 SCt 1263]; Hamilton v. Vasquez (9th Cir. 1994) 17 F3d 1149, 1160-62 [conviction reversed when confusing commutation instruction given over objection by defense counsel]; McLain v. Calderon (9th Cir. 1998) 134 F3d 1383; California v. Ramos (1983) 463 US 992 [77 LEd2d 1171; 103 SCt 3446]; Coleman v. Calderon (9th Cir. 1998) 150 F3d 1105 [a commutation instruction is unconstitutional when it is inaccurate]; Coleman v. Calderon (9th Cir. 2000) 210 F3d 1047, 1051 [trial court’s jury instruction regarding the governor’s power to commute sentences was misleading and constitutionally infirm, and had a “substantial injurious effect” on the jury’s verdict, warranting reversal of the penalty phase]; but see People v. Prieto (2003) 30 C4th 226 [Shafer is inapposite because California jurors are told life sentence is without parole]; People v. Ashmus (1991) 54 C3d 932, 995; People v. Roybal (1998) 19 C4th 481, 524 [trial court correctly refused instruction that defendant “will never be released on parole…[and that the jury must] “assume …defendant will not be released from prison ever”]; Ramdass v. Angelone (2000) 530 US 156 [147 LEd2d 125; 120 SCt 2113, 2119] [defendant not entitled to jury instruction on parole ineligibility as required by Simmons v. South Carolina (1994) 512 US 154 [129 LEd2d 133; 114 SCt 2187], because the defendant’s third conviction, which would have made him ineligible for parole, was not formally entered into the record by the trial judge until after the capital case ended].)
RESEARCH NOTE: CACJ/CPDA III(a).
2. California Supreme Court Response To Simmons. People v. Arias (1996) 13 C4th 172-173 held that nothing in Simmons (Simmons v. South Carolina (1994) 512 US 154 [129 LEd2d 133; 114 SCt 2187) requires that the jury be instructed beyond the fact that its choice is between death and life without possibility of parole. The court also held that Simmons does not “suggest the jury must be instructed in a manner that affirmatively conceals the possibility of commutation or pardon.” (Arias, 13 C4th at 173.)
In People v. Hart (1999) 20 C4th 546, 656, the jury sent a note to the court at the commencement of the penalty trial which asked: “Does life in prison without the possibility of parole mean he will never get out under any circumstances?” In responding to this inquiry, the court did not inform the jury that because Hart had a prior conviction, the governor’s commutation power was far more limited than was suggested by the instruction which the court gave to the jury. However, the Supreme Court held that because the jury was generally instructed not to consider the possibility of commutation, “there is no reasonable possibility that the incompleteness of the trial court’s comments affected the result.” (See also People v. Snow (2003) 30 C4th 43, 124 [jury was told that the alternative to death was life imprisonment “without possibility of parole,” and that that phrase should be understood in its ordinary sense; instructions were sufficient to inform the jury that defendant would not be eligible for parole].)
In any event, Hart appears to recognize that the instruction was incomplete and may provide a basis for arguing for a more complete instruction at the trial level.
RESEARCH NOTE: CACJ/CPDA III(b).
F 760 Note 3 Factual Principles: LWOP
1. Empirical Studies. Empirical studies establish that a substantial majority (almost 25%) of death-qualified jurors erroneously believe that life without parole will allow the parole or judicial system to release the defendant in less than 10 years due to overcrowding and other factors. (See CACJ Forum (1994) Vol. 21, No. 2, pp. 42-45; see also, 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) [“Four of five death juries cited as one of their reasons for returning a death verdict, the belief that a sentence of life without parole did not really mean that the defendant would never be released from prison ….”].) Moreover, a juror’s belief as to the meaning of the sentences is the single most important reason for voting for a particular verdict. (CACJ Forum Vol. 21 at p. 45.)
RESEARCH NOTE: CACJ/CPDA I(c).
2. The Clemency/Commutation Process. As a factual matter it cannot be denied that appellate and administrative processes do exist which theoretically could commute or reduce a sentence of LWOP and allow the defendant to be paroled. As observed by the California Supreme Court:
“As this court has explained in prior cases, because of the possibility of appellate reversal or gubernatorial commutation or pardon, it would be inaccurate and therefore erroneous to instruct the jury that if it returns a death verdict, the sentence of death will inexorably be carried out. [Citations.] Although it is not improper to instruct the jury to assume that whatever penalty it selects will be carried out [citation], an instruction phrased in this qualified language may unnecessarily raise questions in the jurors’ minds. Therefore, we have not required that trial courts so instruct the jury in every penalty phase. The trial court may give the instruction at the defendant’s request and should give this or a comparable instruction if there is a reason to believe the jury may have some concerns or misunderstandings in this regard. [Citations.]” (People v. Kipp (1998) 18 C4th 349, 378-379; see also Kelly v. South Carolina (2002) 534 US 246 [151 LEd2d 670; 122 SCt 726] [jury misunderstanding as to parole eligibility is serious error in most cases because jury is likely to infer future dangerousness from evidence of defendant’s violent acts even if future dangerousness is not directly argued by the prosecution]; People v. Yeoman (2003) 31 C4th 93, 163 [“jurors cannot always be effectively precluded from discussing … the possibility of parole…”].)
RESEARCH NOTE: CACJ/CPDA III(b).
3. Requirement Of Supreme Court Recommendation. The Governor’s power to grant executive clemency and the requirement of Supreme Court recommendation for a twice convicted felon is set forth in Art. V §8 of the California Constitution. (See Coleman v. Calderon UNPUBLISHED (NDCAL 1997, No. C 89-1906 RMW) [conviction overturned because commutation instruction failed to inform jury that governor could not commute the sentence without consulting the Board of Prison Terms and obtaining the approval of four justices of the California Supreme Court; instruction was confusing and misleading by informing jury about commutation, and then inconsistently, directing jurors not to consider what it had just been told].) [The Calderon briefing on this issue is available to FORECITE subscribers. Brief Bank # B-727.]
4. Whether, As A Practical Matter, LWOP Has Ever Been Commuted—Evidence And/Or Instruction That No LWOP Prisoner Has Been Released. It is safe to say that no person sentenced to LWOP since reinstatement of the death penalty in 1978 has been paroled. Such a release would surely be the subject of extensive media attention should it ever occur. It should be possible to obtain records to support this proposition.
However it is less clear as to how many LWOP prisoners, if any, have ever been released. LWOP was imposed upon habitual criminals per former PC 644 years ago. (See People v. Vaile (1935) 2 C2d 441, 445.) It has also been imposed by gubernatorial commutation of death sentences. (See Green v. Gordon (1952) 39 C2d 230; for kidnapping for robbery without bodily harm (PC 209); and for assault with force likely to cause great bodily injury (PC 4500.).)
F 760 Note 4 Meaning Of LWOP: Strategy And Tactics
1. Strategic Considerations. A complete explanation of the meaning of LWOP would seem to require discussion of the Governor’s commutation powers and the Legislature’s power to revise the sentencing statute. So far the courts have been unwilling to authorize an instruction that LWOP means the defendant will never be released. (See People v. Cox (1991) 53 C3d 618, 680-81.) Since most instructions which fail to mention the Governor’s commutation powers would at least imply that the defendant will never be released, it may be necessary for counsel to agree that the commutation power be addressed in the instruction. The only way a sentence of life without parole or a sentence of death may ever be reduced is by an act of Executive Clemency by the Governor of California [upon recommendation of a majority of the California Supreme Court]. For example, in People v. Chessman (1951) 38 C2d 166, 189-90, it was held that the jury was properly instructed that release from an LWOP sentence could occur by gubernatorial pardon or commutation or by legislative revision of the sentencing statute. Obviously the decision of whether to agree to such an instruction requires consideration of the potential prejudicial effect of referring to the Governor’s commutation power (see People v. Cudjo (1993) 6 C4th 585, 630-33) against the countervailing prejudice accruing from the jurors misunderstanding about the power of the courts and/or parole authorities to release the defendant after serving only 10 to 20 years. Given the apparent pervasiveness of this misunderstanding and its substantial impact on the verdict, this matter warrants close attention. Note also that this issue should be considered in light of how counsel will argue this point to the jury. It may be preferable to allow jury consideration in order to argue that the chance of Executive Clemency is remote. (See below.)
2. Whether Jury May Consider Likelihood Of Executive Clemency. People v. Ramos (1984) 37 C3d 136, 159 fn 12 holds that the jury may not consider the possibility of Executive Clemency. This could justify instructing the jury that “You must not consider the possibility of Executive Clemency in determining the appropriate sentence.” However, it could be argued under the logic of Simmons, which suggests that the jury should have a full and accurate understanding of the sentencing alternatives, that the jury should consider the unlikelihood of Executive Clemency. (See Gallego v. McDaniel (9th Cir. 1997) 124 F3d 1065 [failure of commutation instruction to explain the remoteness of executive clemency for a life sentence was constitutional error].)
3. Argument As To Unlikelihood Of Executive Clemency. Counsel may wish to argue that Simmons allows the jury to consider the likelihood or unlikelihood of Executive Clemency in order to permit argument to the jury on this point. The jurors will likely be aware of the severe political consequences which attach to the release of any violent offender and on this basis they may be brought to understand just how remote Executive Clemency would be in a special circumstance first degree murder case. [Whether evidence could or should be brought on the likelihood of Executive Clemency is another matter which may warrant consideration.]
4. Whether To Broach Public Misconception As To LWOP On Voir Dire. A voir dire discussion of juror misconceptions about the meaning of LWOP may result in the entire panel learning about the governor’s commutation power. (See CACJ/CPDA III(A)(1)(c)(iii)(a).)
5. Argument On Nature Of LWOP In Lieu Of Instruction. People v. Gutierrez (2002) 28 C4th 1083 stated that counsel may properly argue “the full nature of a sentence of life in prison without the possibility of parole.” According to the CACJ/CPDA Manual III(A)(1)(c)(vi): “This may be a better approach than a jury instruction which could lessen the sense of personal responsibility the jurors should have, particularly given the fact that the defense argues last in a penalty trial.”
6. Instruction As To Meaning Of LWOP: Sample Argument When Instruction Refused. People v. Holt (1997) 15 C4th 619, 689 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.)
CALJIC NOTE: See FORECITE F 8.84 n5.
F 760 Note 5 Death Penalty: Duty Of Jurors To Find Preliminary Facts
Except for uncharged crimes offered under Factor b, the penalty phase instructions conspicuously omit imposing a burden of proof on either party. (See People v. Hawthorne (1992) 4 C4th 43, 79; see also People v. Jenkins (2000) 22 C4th 900, 1053; People v. Welch (1999) 20 C4th 701, 767 [“‘neither the prosecution nor the defense has the burden of proof’ during the penalty phase. [Citation.]”].)
However, the rules of evidence do apply to penalty trials (see People v. Jablonski (2006) 37 C4th 774, 826 [no constitutional impediment application of ordinary rules of evidence in a capital case]; People v. Moon (2005) 37 C4th 1, 37; see also Oregon v. Guzek (2006) 546 US 517 [163 LEd2d 1112; 126 SCt1226, 1232] [the 8th Amendment does not deprive the State of its authority to set reasonable limits upon the evidence a defendant can submit, and to control the manner in which it is submitted.)
Therefore, it may be argued that evidentiary rules, such as EC 403, should apply to the penalty phase of a capital trial. (See also EC 500.) If that is so, then EC 403 may provide a basis for requiring the prosecution to prove various preliminary facts which they offer at the penalty trial. (See generally, FORECITE F 319 Inst 1.) For example, the foundational facts relied on by an expert witness may be subject to EC 403. (See FORECITE F 332 Inst 17.)
As our Supreme Court has stated, “any material that forms the basis of an expert’s opinion testimony must be reliable. [Citation.] For ‘the law does not accord to the expert’s opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert’s opinion is no better than the facts on which it is based.’” (People v. Gardeley (1996) 14 C4th 605, 618.) Thus, a trial court may not admit an expert opinion based on information furnished by others that is speculative or conjectural, and otherwise fails to meet a threshold requirement of reliability. (See People v. Morris (1988) 46 C3d 1, 21.)
