F 761.1 Titles And Identification Of Parties

SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY

F 761 Death Penalty: Duty Of Jury

TABLE OF CONTENTS
F 761.1 Titles And Identification Of Parties
F 761.1 Inst 1 Death Penalty: Duty Of Jury—Title
F 761.1 Inst 2 Identification Of Prosecution And Defendant
F 761.1 Inst 3 Written Instructions

F 761.2 Death Penalty: Duty Of Jury—Tailoring To Facts: Persons, Places, Things And Theories
F 761.2 Inst 1 Modification For Clarity And Precision
F 761.2 Inst 2 Instruction Not To Consider “Deterrent Effect”
F 761.2 Inst 3 Instruction Not To Consider “Cost Savings Effect”
F 761.2 Inst 4 Jurors Not To Consider Defendant’s Sexual Preferences
F 761.2 Inst 5 No Consideration Of Intercase Proportionality
F 761.2 Inst 6 Intracase Proportionality
F 761.2 Inst 7 Effect Of Reversal
F 761.2 Inst 8 No Undue Influence From Repetition Instruction: Supplemental Instructions
F 761.2 Inst 9 Definitions Of Words And Phrases
F 761.2 Inst 10 Whether Jurors Are Fact Finders At The Penalty Phase
F 761.2 Inst 11 Jurors Not Required To Make A Penalty Decision
F 761.2 Inst 12 Strategies For Dealing With Instruction Allowing Jurors To Reject Counsel Arguments That Conflict With The Instructions
F 761.2 Inst 13 No Adverse Inference As To Penalty From Failure Of Defendant To Testify At Guilt Or Penalty Trial
F 761.2 Inst 14 Jury May Only Consider Testifying Defendant’s Demeanor, Conduct Or Appearance While He/She Is Testifying And Only As To Matters At Issue

F 761 NOTES
F 761 Note 1 Death Penalty: Duty Of Jury—CALCRIM Cross-References And Research Notes
F 761 Note 2 Instruction On Reasonable Doubt: Bifurcated Trial (CC 221)
F 761 Note 3 Instruction On Evidence (CC 222)
F 761 Note 4 Instruction On Circumstantial Evidence
F 761 Note 5 Instruction On Witnesses (CC 226)
F 761 Note 6 Jury Not To Consider Defendant’s Failure To Testify At Penalty Trial
F 761 Note 7 Death Penalty: Duty Of Jury—Expert Witnesses
F 761 Note 8 Jurors Must Be Properly Instructed On Evidentiary Matters At The Penalty Phase

Return to Series 700 Table of Contents.

F 761.1 Titles And Identification Of Parties

F 761.1 Inst 1 Death Penalty: Duty Of Jury—Title

See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.

F 761.1 Inst 2 Identification Of Prosecution And Defendant

See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.

F 761.1 Inst 3 Written Instructions

See FORECITE F 200.1.2.

F 761.2Death Penalty: Duty Of Jury—Tailoring To Facts: Persons, Places, Things And Theories

F 761.2 Inst 1 Modification For Clarity And Precision

*Modify CC 761, paragraph 3, sentence 3, as follows [added language is underlined; deleted language is stricken]:

Do not allow bias, prejudice, or public opinion to influence your opinion deliberations in any way.

Points and Authorities

See FORECITE F 100.7 Inst 1.

F 761.2 Inst 2 Instruction Not To Consider “Deterrent Effect”

*Add to CC 761, paragraph 3, as follows:

During voir dire there was some discussion of whether or not the death penalty has a so-called “deterrent effect.” I now admonish you that, as a matter of law, you must not discuss or consider “deterrent effect”in any way or for any purpose in your penalty deliberations.

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]

Propriety Of Instruction On “Deterrent Effect”—See People v. Welch (1999) 20 C4th 701, 765-66 [defense may be entitled to instruction precluding consideration of “deterrent effect” of penalty verdict if showing of necessity is made (e.g., juror comments during voir dire)]; see also People v. Brown (2003) 31 C4th 518, 566 [no right to such instruction if no mention of “deterrent effect” during trial].)

WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG 13.5 [Fair And Reliable Sentencing Determination]
FORECITE CG 13.10 [Jury Consideration Of Extrinsic Evidence Or Properly Admitted Evidence For An Improper Purpose]
FORECITE CG 13.13 [Improper Aggravation]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 761.2 Inst 3 Instruction Not To Consider “Cost Savings Effect”

*Add to CC 761, paragraph 3 as follows:

During voir dire there was some discussion of whether or not the death penalty has a so-called “cost savings effect.” I now admonish you that, as a matter of law, you must not discuss or consider “cost savings” in any way or for any purpose in your penalty deliberations.

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]

Propriety Of Instruction—See People v. Ochoa (2001) 26 C4th 398, 455-56 [instruction appropriate if necessary (e.g., juror comments during voir dire)].

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 761.2 Inst 4 Jurors Not To Consider Defendant’s Sexual Preferences

*Add to CC 761, paragraph 3 when appropriate:

The prosecution has suggested that you may consider the defendant’s sexual preferences as weighing in favor of a sentence of death. I admonish you that you must not consider or discuss such evidence in any way or for any purpose [during your deliberations] [as weighing in favor of a death verdict].

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]

Propriety Of Instruction—See People v. Cunningham (2001) 25 C4th 926, 1024-25.

No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]

Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 761.2 Inst 5 No Consideration Of Intercase Proportionality

*Add to CC 761, paragraph 3 as follows:

You must not consider or discuss in any way or for any purpose how this case compares with other cases you may know about.

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]

Propriety Of Instruction—See People v. Lucas (1996) 12 C4th 415, 497-98.

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

CAVEAT: Responding To “If Not This Case, Then What Case?” The prosecutor may improperly rely on intercase proportionality by asking the jurors: “If not this case, then what case?”

The proper response to such misconduct is to object and request an admonition to disregard the comment. (People v. Lucas (1996) 12 C4th 415, 497-98.) Attempting to argue intercase proportionality in rebuttal is a dangerous path to take because if the trial court rejects this “door opening” approach the defendant is essentially without a remedy for an improper argument that carries great weight and is often made.

RESEARCH NOTES: See CACJ/CPDA III(B)(2)(d).

F 761.2 Inst 6 Intracase Proportionality

*Add to CC 761, paragraph 3 as follows:

The fact that ___________________ <name(s) of co-perpetrator(s)> [did not receive a death sentence] [were/was not brought to trial] is a mitigating factor which weighs against a finding that the death penalty is warranted as to the defendant.

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]

Propriety Of Instruction —See Parker v. Dugger (1991) 498 US 308, 321 [112 LEd2d 812; 111 SCt 731]; but see People v. Brown (2003) 31 C4th 518, 562-63 [intracase proportionality evidence is irrelevant].

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 761.2 Inst 7 Effect Of Reversal

*Use if jury asked about the effect of appellate reversal of death sentence:

Should a sentence of death be reversed on appeal, the matter will be remanded to the trial court. The prosecutor may then decide either to accept a sentence of life without possibility of parole or seek the death penalty again.

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]

Propriety Of Instruction—See People v. Smithey (1999) 20 C4th 936, 1007-1011.

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 761.2 Inst 8 No Undue Influence From Repetition Instruction: Supplemental Instructions

See FORECITE F 200.6 Inst 1.

F 761.2 Inst 9 Definitions Of Words And Phrases

See FORECITE CHK III.

F 761.2 Inst 10 Whether Jurors Are Fact Finders At The Penalty Phase

*Modify CC 761, paragraph 7 as follows

Some of these instructions may not apply, depending on your findings about the facts [consideration] [evaluation] of the case evidence.

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]

The jurors do not function as a fact finder at the penalty trial. “Unlike the determination of guilty, ‘the sentencing function is inherently moral and normative, not factual.’ [Citation.]” (People v. Sanchez (1995) 12 C4th 1, 81; see also People v. Welch (1999) 20 C4th 701, 767.) Hence, with the exception of Factor (b) [uncharged violent crimes], the jurors do not receive any burden of proof instruction. (Ibid.) Hence, CC 761, paragraph 7 misstates the jurors fact finding function.

Alternatively, if the jurors’ role is to determine facts, then it would be arbitrary and unreliable for them to fulfill that function in a vacuum without any standard of proof. (See FORECITE CG 13.16.) Such arbitrariness and unreliability in the sentencing process violates the Eighth Amendment and the Due Process Clause of the 14th Amendment. (See FORECITE CG 13.3.)

FORECITE CG 13.5 [Fair And Reliable Sentencing Determination]
FORECITE CG 13.9 [The 8th Amendment Requires That The Jury Understand The Death Penalty Instructions]
FORECITE CG 13.16 [Jurors Not Fact Finders; Standard Of Proof Required]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 761.2 Inst 11 Jurors Not Required To Make A Penalty Decision

*Modify CC 761, paragraph 3, sentence 1, 2, and 3, as follows [added language is underlined; deleted language is stricken]:

You must attempt to decide whether (the/each) defendant will be sentenced to death or life in prison without the possibility of parole. It is up to you and you alone to decide, if you can, what the penalty will be. [In attempting to reaching your decision, consider all of the evidence from the entire trial [unless I specifically instruct you not to consider something from an earlier phase].]

*Modify paragraph 7, sentence 3, as follows:

After you have decided what the facts are, if you can, follow the instructions that apply to the facts as you find them have found.

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]

Need For Instruction—The language in CALCRIM 761 improperly implies that the jurors must reach a verdict. (See People v. Wattier (1996) 51 CA4th 948 [verdict not coerced because, in part, the court had instructed the jury, “Each of you must consider the evidence for the purpose of reaching a verdict if you can do so” (emphasis in original)]; see also People v. Anderson (1990) 52 C3d 453, 469; Jiminez v. Meyers (9th Cir. 1993) 40 F3d 976, 978; U.S. v. Amaya (5th Cir. 1975) 509 F2d 8; ABA §15-4.4 [agreement should be reached… “if it can be done without violence to individual judgment”]; CALJIC 17.40 [“Each of you must consider the evidence for the purpose of reaching a verdict if you can do so” ].)

Moreover, the concluding penalty phase instruction (CALCRIM 766) does not have any language to the contrary. (Compare CC 3550, paragraph 2, sentence 2.) The final paragraph of CC 766 refers to lack of agreement on penalty but only in the context of co-defendants.

It is true that in People v. Miranda (1987) 44 C3d 57, 105, the California Supreme Court stated that “where … there is no jury deadlock, a court is not required to instruct the jury that it has the choice to not deliver a verdict.” (Cf., People v. Gutierrez (2002) 28 C4th 1083 [no duty to instruct on effect of hung jury absent a request from the jury].)

See FORECITE F 100.7 Inst 1.

Identification Of Parties—See FORECITE F 100.2 Note 1.

WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG 13.15 [No Coercion; No Duty To Decide]

F 761.2 Inst 12 Strategies For Dealing With Instruction Allowing Jurors To Reject Counsel Arguments That Conflict With The Instructions

See FORECITE F 200.5 Inst 2.

F 761.2 Inst 13 No Adverse Inference As To Penalty From Failure Of Defendant To Testify At Guilt Or Penalty Trial

*Add to CC 761:

The law does not compel a defendant in a criminal case to testify at either the guilt or penalty phases of the trial. No adverse inference of any kind may be drawn against the defendant from [his] [her] failure to testify.

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]

Propriety Of Instruction—When requested, this instruction must be given. (People v. Melton (1988) 44 C3d 713, 757-58.)

Moreover, Mitchell v. U.S. (1999) 526 US 314 [143 LEd2d 424; 119 SCt 1307] held that the prosecution may not rely upon the defendant’s “rightful silence” at the guilt phase of a trial in meeting its “burden of proving facts relevant to the crime at the sentencing phase….” (119 SCt at 1316.) Accordingly, at the penalty phase of a capital trial in California, where the aggravating factors must be proven to outweigh the mitigation, the 5th Amendment privilege against self-incrimination should preclude any adverse inference from the defendant’s silence with respect to the weighing process. (See also Estelle v. Smith (1981) 451 US 454, 463 [68 LEd2d 359; 101 SCt 1866] [“Any effort by the State to compel [the defendant] to testify against his will at the sentencing hearing would clearly contravene the 5th Amendment”]; see generally Griffin v. California (1965) 380 US 609 [14 LEd2d 106; 85 SCt 1229].) As the Supreme Court recognized in Estelle v. Smith, there is “no basis to distinguish between the guilt and penalty phases of respondent’s capital murder trial as far as the protection of the 5th Amendment privilege is concerned.” (451 US at 462-63; see also Beathard v. Johnson (5th Cir. 1999) 177 F3d 340 [upon request, defendant is entitled to an instruction at the sentencing phase that no adverse inference may be drawn from the defendant’s failure to testify].) Accordingly, the jury should not be permitted to make any use of the defendant’s failure to testify either at the guilt or the penalty phase in deciding whether aggravation outweighs mitigation.

NOTE: Mitchell expressly left unresolved the question of whether the 5th Amendment protection applied to the determination of lack of remorse or acceptance of responsibility for purposes of downward adjustment under the federal sentencing guidelines; however, in light of the full applicability of the 5th Amendment to capital sentencing proceedings, an inference of lack of remorse from the defendant’s silence at a capital trial would violate the 5th Amendment.

Identification Of Parties—See FORECITE F 100.2 Note 1.

See also FORECITE F 104.1 Inst 8 and F 104.1 Inst 9.

FORECITE CG 1.1 [Privilege Against Self Incrimination: Reliance On Silence]
FORECITE CG 1.13 [Confrontation: Generally]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 761.2 Inst 14 Jury May Only Consider Testifying Defendant’s Demeanor, Conduct Or Appearance While He/She Is Testifying And Only As To Matters At Issue

See FORECITE F 104.1 Inst 9.

F 761 Notes

F 761 Note 1 Death Penalty: Duty Of Jury—CALCRIM Cross-References And Research Notes

CALCRIM Cross-References:

CALCRIM 221 [Reasonable Doubt: Bifurcated Trial]
CALCRIM 222 [Evidence]
CALCRIM 223 [Direct and Circumstantial Evidence: Defined]
CALCRIM 224 [Circumstantial Evidence: Sufficiency of Evidence]
CALCRIM 225 [Circumstantial Evidence: Intent or Mental State]
CALCRIM 226 [Witnesses]

Research Notes:

See CLARAWEB Forum, Homicide—Series 500-700.

F 761 Note 2 Instruction On Reasonable Doubt: Bifurcated Trial (CC 221)

See FORECITE F 221.

F 761 Note 3 Instruction On Evidence (CC 222)

See FORECITE F 222.

F 761 Note 4 Instruction On Circumstantial Evidence

See FORECITE F 224 and F 225.

F 761 Note 5 Instruction On Witnesses (CC 226)

See FORECITE F 226.

F 761 Note 6 Jury Not To Consider Defendant’s Failure To Testify At Penalty Trial

See FORECITE F 8.85 Inst 16.

F 761 Note 7 Death Penalty: Duty Of Jury—Expert Witnesses

See generally, FORECITE F 332; see also FORECITE F 760 Note 5.

F 761 Note 8 Jurors Must Be Properly Instructed On Evidentiary Matters At The Penalty Phase

See People v. Moon (2005) 37 C4th 1, 37 [“We again strongly urge trial courts to ensure penalty phase juries are properly instructed on evidentiary matters. ‘The cost in time of providing such instructions is minimal, and the potential for prejudice in their absence surely justifies doing so.’ (People v. Carter (2003) 30 C4th 1166, 1222)”].