SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 763.1 Titles And Identification Of Parties
F 763.2 Death Penalty: Factors to Consider—General Issues And Instructions
TABLE OF CONTENTS
F 763.1 Titles And Identification Of Parties
F 763.1 Inst 1 Death Penalty: Factors to Consider—Not Identified As Aggravating Or Mitigating—Title
F 763.1 Inst 2 Identification Of Prosecution And Defendant
F 763.2 Death Penalty: Factors to Consider—General Issues And Instructions
F 763.2 Inst 1 Definition Of Aggravating And Mitigating Factors
F 763.2 Inst 2 Jurors Not Required To Make A Penalty Decision
F 763.2 Inst 3 Deletion Of Inapplicable Factors
F 763.2 Inst 4 Mitigating Factor Not Shown To Exist By The Evidence Not An Aggravating Factor
F 763.2 Inst 5 Mitigating Factors Argued By Counsel Have Same Stature As Those Specifically Listed In Instructions
F 763.2 Inst 6 Existence Of Mitigating Factor May Be Based On Any Evidence No Matter How Weak
F 763.2 Inst 7 Jurors Not To Consider District Attorney’s Choice To Seek Death Penalty
F 763.2 Inst 8 Jurors May Reject Death Based On Any Mitigating Evidence Or Aspect Of The Case That Arouses Compassion For The Defendant
F 763.2 Inst 9 Specification Of Which Factors Are Aggravating And Mitigating
F 763.2 Inst 10 Jurors Must Not Be Permitted To “Double-Count” Non-Murder Crimes In The Current Proceedings
Return to Series 700 Table of Contents.
F 763.1 Titles And Identification Of Parties
F 763.1 Inst 1 Death Penalty: Factors to Consider—Not Identified As Aggravating Or Mitigating—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 763.1 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 763.2 Death Penalty: Factors to Consider—General Issues And Instructions
F 763.2 Inst 1 Definition Of Aggravating And Mitigating Factors
*Replace CC 763 listing of Factors with the following:
In reaching your decision, you must consider and weigh the aggravating and mitigating circumstances or factors shown by the evidence.
An aggravating circumstance or factor is any fact, condition, or event relating to the commission of a crime, above and beyond the elements of the crime itself, that increases the wrongfulness of the defendant’s conduct, the enormity of the offense, or the harmful impact of the crime. An aggravating circumstance may support a decision to impose the death penalty.
A mitigating circumstance or factor is any fact, condition, or event that makes the death penalty less appropriate as a punishment, even though it does not legally justify or excuse the crime. A mitigating circumstance is something that reduces the defendant’s blameworthiness or otherwise supports a less severe punishment. A mitigating circumstance may support a decision not to impose the death penalty.
Under the law, you must consider, weigh, and be guided by specific factors, some of which may be aggravating and some of which may be mitigating. I will read you the entire list of factors. Some of them may not apply to this case. If you find there is no evidence of a factor, then you should disregard that factor.
The only factors you may consider as aggravating circumstances are:
(a) The circumstances of the crime[s] that the defendant was convicted of in this case and any special circumstances that were found true.
(b) Other violent criminal activity the defendant engaged in besides the crime[s] that resulted in conviction[s] in this case. Violent criminal activity involves the unlawful use or attempted use of force or violence or the [direct or indirect] threat to use force or violence. [The other violent criminal activity alleged in this case will be described in these instructions.]
(c) Any other felony that the defendant has been convicted of besides the crime[s] in this case.
(d) The defendant’s age at the time of the crime[s] that (he/she) was convicted of in this case.
You may not consider as an aggravating factor anything other than the aggravating factors I have just listed. You must not take into account any other facts or circumstances as a basis for imposing the death penalty.
[Even if a fact is both a “special circumstance” and also a “circumstance of the crime,” you may consider that fact only once in your weighing process. Do not consider that fact as greater evidence of aggravation simply because it is both a “special circumstance” and a “circumstance of the crime.”]
Factors that you may consider as mitigating circumstances include:
(a) The circumstances of the crime[s] the defendant was convicted of in this case and any special circumstance[s] that (was/were) found true.
(b) The absence of any violent criminal activity by the defendant besides the crime[s] that (he/she) was convicted of in this case.
(c) The absence of any felony convictions of the defendant besides the crime[s] in this case.
(d) Whether the defendant was under the influence of extreme mental or emotional disturbance when (he/she) committed the crime[s] that (he/she) was convicted of in this case.
(e) Whether the victim participated in the defendant’s homicidal conduct or consented to the homicidal act.
(f) Whether the defendant reasonably believed that circumstances morally justified or extenuated (his/her) conduct.
(g) Whether the defendant acted under extreme duress or under the substantial domination of another person.
(h) Whether, at the time of the offense, the defendant’s ability to appreciate the criminality of (his/her) conduct or to follow the requirements of the law was impaired as a result of mental disease, defect, or intoxication.
(i) The defendant’s age at the time of the crime[s] that (he/she) was convicted of in this case.
(j) Whether the defendant was an accomplice to the offense and (his/her) participation was relatively minor.
(k) Any other circumstance that lessens the gravity of the crime[s] even though the circumstance is not a legal excuse. You must consider anything the defendant has offered as a basis for a sentence less than death, including but not limited to any mitigating or sympathetic circumstances of the crime[s] and of the defendant’s character, background, history, or mental or physical condition. In reaching your decision, you may consider sympathy or compassion for the defendant or anything you consider to be a mitigating factor, whether or not I have specifically mentioned it here.
As you see, there are two factors that may be either aggravating or mitigating: the circumstances of the crime[s] that the defendant was convicted of in this case and the defendant’s age at the time of the crime[s]. It is for you to decide whether these factors are aggravating or mitigating in this case.
The mitigating factors listed here are just examples of some of the factors you may take into account in deciding not to impose a death sentence. Consider any fact or circumstance supported by the evidence that you believe to be mitigating in deciding the question of penalty. Although a number of possible mitigating factors have been listed, you must not consider the absence of any such factor as an aggravating circumstance.
[You may not let sympathy for the defendant’s family influence your decision.]
[However, you may consider evidence about the impact the defendant’s execution would have on (his/her) family if that evidence demonstrates some positive quality of the defendant’s background or character.]
[Source: 702ADP [Death Penalty: Factors to Consider—Identified as Aggravating or Mitigating] (2005 draft version of CALCRIM 763).]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Need To Identify Aggravating And Mitigating Factors—CALCRIM 763 fails to identify which factors are aggravating and which are mitigating. Thus, it improperly leaves the decision as to what statutory factors can be considered as aggravating to the jurors’ unguided discretion. (See People v. Wader (1993) 5 C4th 610, 657 [error to instruct jury that any factor may be considered in aggravation].)
Moreover, CC 763, paragraph 7, affirmatively invites the jurors to consider any factors in the list that “you conclude are aggravating in this case.”
The 2005 draft of CALCRIM 763 correctly identified the factors to avoid “inviting confusion” by the jurors. (702 ADP, Staff Notes.)
The 2005 draft of CALCRIM 763 correctly identified the factors to avoid “inviting confusion” by the jurors. (702 ADP, Staff Notes.)
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.
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 13.9 [The 8th Amendment Requires That The Jury Understand The Death Penalty Instructions]
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 763.2 Inst 2Jurors Not Required To Make A Penalty Decision
*Modify CC 763, paragraph 1 as follows [added language is underlined; deleted language is stricken]:
In attempting to reaching your decision, you must consider and weigh the aggravating and mitigating circumstances or factors shown by the evidence.
*Modify paragraph 8 as follows:
[Although you may consider sympathy or compassion for the defendant, you may not let sympathy for the defendant’s family influence your decision deliberations.]
Points and Authorities
See FORECITE F 100.7 Inst 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 Need To Decide]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 763.2 Inst 3 Deletion Of Inapplicable Factors
*Modify CC 763, paragraph 5, list of aggravating and mitigating factors, as follows:
[DELETE INAPPLICABLE FACTORS]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Absence Of Mitigation Factor Is Not Aggravation—Because the absence of a mitigating factor is not aggravating (People v. Davenport (1985) 41 C3d 247, 289), deletion of inapplicable factors should be considered the better practice even though the matter is within the trial judge’s discretion. (Compare People v. Freeman (1994) 8 C4th 450, 524-25 [deletion permissible] and People v. Taylor (2001) 26 C4th 1155, 1180 [instruction on all factors permissible].)
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 13.13 [Improper Aggravation]
FORECITE CG 13.15 [No Coercion; No Need To Decide]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTE: CALCRIM 763, paragraph 6, specifically instructs the jurors not to “consider the absence of a mitigating factor as an aggravating factor.”
F 763.2 Inst 4 Mitigating Factor Not Shown To Exist By The Evidence Not An Aggravating Factor
*Add after CC 763, paragraph 6, sentence 1, as follows:
This applies both to:
1. Factors for which there is no evidence;
AND
2. Factors as to which the evidence was not sufficient for you to conclude that the mitigating factor exists.
In other words, any factor that is not shown by the evidence may not be considered as an aggravating factor.
[Source: See People v. Smithey (1999) 20 C4th 936, 1006.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Absence Of Evidence Is Not Aggravation—Typically the holding of People v. Davenport (1985) 41 C3d 247, 289 has been characterized in terms of the “absence” of an aggravating factor. However, the rationale of Davenport should not be limited to situations where there is an absence of evidence. It should also apply to mitigating factors for which some evidence was presented but the jurors found that evidence insufficient to conclude that the factor “exists.” (See People v. Smithey (1999) 20 C4th 936, 1006; see also CC 766, paragraph 4.) Otherwise, there is a danger that the jurors could conclude, in violation of the principles underlying Davenport, that a failure to prove a mitigating factor makes it an aggravating factor.
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 13.13 [Improper Aggravation]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 763.2 Inst 5 Mitigating Factors Argued By Counsel Have Same Stature As Those Specifically Listed In Instructions
*Add to CC 763:
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
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Jurors Should Consider Mitigating Factors Discussed In Counsel’s Argument—The 8th 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.
“It is not enough simply to allow the defendant to present mitigating evidence to the sentencer.” (Penry v. Lynaugh (1989) 492 US 302, 319 [106 LEd2d 256; 109 SCt 2934].) Rather, the trial judge’s instructions must convey “that the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence.” (Buchanan v. Angelone (1998) 522 US 269, 276 [139 LEd2d 702; 118 SCt 757].)
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 given no less consideration than the statutory ones. (See generally People v. Harrison (2005) 35 C4th 208, 299 [relying on argument of counsel to inform the jury as to nonstatutory factors]; see also FORECITE F 200.5 Inst 2.)
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 13.11 [Jury Must Consider Mitigating Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 8.85 Inst 1.1.
F 763.2 Inst 6 Existence Of Mitigating Factor May Be Based On Any Evidence No Matter How Weak
*Add to CC 763, paragraph 3:
Any juror may find that a mitigating circumstance exists if there is any evidence to support it no matter how weak the evidence may be.
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. Panah (2005) 35 C4th 395, 498 [instruction approved]; see also Lockett v. Ohio (1978) 438 US 586 [98 SCt 2954; 57 LEd2d 973].)
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 13.11 [Jury Must Consider Mitigating Evidence]
F 763.2 Inst 7 Jurors Not To Consider District Attorney’s Choice To Seek Death Penalty
*Add to CC 763.2:
In deciding which penalty to vote for, no juror may rely on or give any weight to the fact that the district attorney’s office decided to seek the death penalty in this case.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—“It is improper argument for a prosecutor to suggest that the jury should accord some weight to the decision of the district attorney’s office to seek the death penalty.” (People v. Roldan (2005) 35 C4th 646, 744.)
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 13.13 [Improper Aggravation]
F 763.2 Inst 8 Jurors May Reject Death Based On Any Mitigating Evidence Or Aspect Of The Case That Arouses Compassion For The Defendant
*Add to CC 763:
If any of the mitigating evidence or any aspect of the case arouses in you compassion for the defendant, you may consider this response in deciding which penalty to impose in this case. You may, based on this response alone, reject death as a penalty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—The above instruction was quoted with approval in People v. Roldan (2005) 35 C4th 646, 740-41, as an alternative to an instruction that a single mitigating circumstance could support a life sentence.
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 13.11 [Jury Must Consider Mitigating Evidence]
F 763.2 Inst 9 Specification Of Which Factors Are Aggravating And Mitigating
*Modify CC 763 (factors) to provide as follows [added language is underlined; deleted language is stricken]:
The only factors you may consider as aggravating circumstances are:
(a) The circumstances of the crime[s] that the defendant was convicted of in this case and any special circumstances that were found true.
Replace (b), sentence 1, with:
(b) Other violent criminal activity the defendant engaged in besides the crime[s] that resulted in conviction[s] in this case. Violent criminal activity involves the unlawful use or attempted use of force or violence or the direct or implied threat to use force or violence. [The other violent criminal activity alleged in this case will be described in these instructions.]
Modify (c) as follows:
(c) Any other felony of which that the defendant has been convicted of other than the murder of _________ <insert name of murder victim> crime[s] in this case.
Add as (d):
(d) The defendant’s age at the time of the murder of _________ <insert name of murder victim> crime[s] that (he/she) was convicted of in this case.
You may not consider as an aggravating factor anything other than the aggravating facts I have just listed. You must not take into account any other facts or circumstances as a basis for imposing the death penalty. [Even if a fact is both a “special circumstance” and also a “circumstance of the crime,” you may consider that fact only once in your weighing process. Do not consider that fact as greater evidence of aggravation simply because it is both a “special circumstance” and a “circumstance of the crime.”]
Factors that you may consider as mitigating circumstances include:
(a) The circumstances of the crime[s] that the defendant was convicted of in this case and any special circumstances that were found true.
(b) The absence of any violent criminal activity by the defendant besides the crime[s] that (he/she) was convicted of in this case.
(c) The absence of any felony convictions of the defendant besides the crime[s] in this case.
[[d-k] Use CALCRIM 763, Factors d-l; but see FORECITE F 763 d-k.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Need For Clarification Of CALCRIM 763—The above request is based on the CALCRIM Committee’s last draft of this instruction. (Draft CALCRIM 702 ADP.) Without comment from the Committee, this last draft was changed to the current language of CC 763. However, the draft language is more accurate because it is settled California law that “subdivisions (b) and (c) pertain only to criminal activity other than the crimes for which the defendant was convicted in the present proceeding. It would therefore be improper for the jury to consider the underlying crimes as separate and distinct aggravating circumstances under either subdivision.” (People v. Miranda (1987) 44 C3d 57, 106.) However, CALCRIM 763 expressly encourages just such improper consideration when it describes factor (b) as: “whether or not the defendant has engaged in violent criminal activity other than the murder of.” Thus, non-capital crimes for which the defendant is charged and convicted in the same proceeding as the capital crime could be considered twice, once as aggravation under factor (a), and again as aggravation under factor (b), according to this wording in the CALCRIM 763. Such double-counting would be in direct violation of the Miranda rule. Similarly, CC 763 fails to limit the consideration of the factor (c) aggravator to prior felony convictions, and again permits double counting as aggravation of non-capital crimes for which defendant is charged and convicted in the same proceeding as the capital crime.
CC 763 fails to further CALCRIM’s goal of clarifying confusing and misleading CALJIC language. Instead, CC 763 reverts to minimalistic statutory language like that contained in the old CALJIC numbers 8.85 and 8.88. But the draft version of the instruction clearly and properly identified which factors can be aggravating and which can only be mitigating under California law. It told jurors that they can only use as aggravation four factors: factor (a) (circumstances of the crime); factor (b) (other criminal acts involving threats or violence); factor (c) (prior felony convictions); and factor (i) (age of the defendant). (See People v. Coffman and Marlow (2004) 34 C4th 1, 109.) It also properly told jurors that the circumstances of the crime and the defendant’s age can be mitigating, and that the absence of felony convictions and violent criminal activity can be mitigating. (See People v. Gallego (1990) 52 C3d 115, 208 fn.1 (concurring opinion of J. Mosk); People v. Davenport (1985) 41 C3d 247, 288-290.)
It is true that the California Supreme Court has held that the trial court is not required to tell the jury which factors are aggravating and which are mitigating. On the other hand, it is instructional error for the court to suggest that any of the factors may be aggravating when, in fact, only a minority of the factors may be used as aggravating factors. (People v. Wader (1993) 5 C4th 610, 657.) Thus, the Supreme Court has approved of instructions specifically identifying for the jury which factors are aggravating. (See People v. Musselwhite (1998) 17 C4th 1216, 1269; 702ADP, Commentary, p. 5 and Staff Notes, p. 17.)
In the draft instruction, the task force recognized the need for a clear instruction on this critical issue. There, the Staff Notes made the following observation: “Instructing the jurors that they may only consider ‘the statutory aggravating factors,’ without explaining what these are, will invite confusion.”(702ADP, Staff Notes, p. 17.) The Commentary to the draft instruction also stated that “[t]he committee has drafted the instruction to identify the aggravating and mitigating factors to avoid juror confusion on this issue.”(702ADP, Commentary, p. 5.)
Despite such recognition, the final version of the instruction was stripped of all of this crucial legal information. The final version of the CALCRIM instruction is also now legally inaccurate. The following misleading language suggests that the jury can consider any factor as aggravating: “You may not consider as an aggravating factor anything other than the factors contained in this list that you conclude are aggravating in this case.”(CALCRIM 763; emphasis added.) The current language thus leaves the decision as to what statutory factors may be considered to be aggravating entirely to the jurors’ unguided discretion. As noted, it is error to instruct the jury that any factor can be considered in aggravation. (People v. Wader, supra, 5 Cal.4th 610, 657.) It is exactly this type of confusion that the draft instruction sought to rectify, by defining the aggravating and mitigating factors in accordance with the task force’s mandate to provide a clear, understandable and correct statement of the law to jurors.
The probability of juror confusion is increased because of the language in CALCRIM 761, which instructs that “if you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.” Thus, even a legally correct argument about which factors are mitigating only could well fall on deaf ears because of the failure of CALCRIM 763 to clarify this issue for the jury. (But see FORECITE F 761.2 Inst 12 [Strategies For Dealing With Instruction Allowing Jurors To Reject Counsel Arguments That Conflict With The Instructions].)
Fact (b) And (c) Clarification—The proposed instruction includes modified language to prevent double counting of non-homicide charges. (See FORECITE F 763.2 Inst 10 [Jurors Must Not Be Permitted To “Double-Count” Non-Murder Crimes In The Current Proceedings].)
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 13.11 [Jury Must Consider Mitigating Evidence]
FORECITE CG 13.13 [Improper Aggravation]
F 763.2 Inst 10 Jurors Must Not Be Permitted To “Double-Count” Non-Murder Crimes In The Current Proceedings
*Modify CC 763 factors (b) and (c) as follows [added language is underlined; deleted language is stricken]:
Replace (b), sentence 1, with:
(b) Other violent criminal activity the defendant engaged in besides the crime[s] that resulted in conviction[s] in this case. Violent criminal activity involves the unlawful use or attempted use of force or violence or the direct or implied threat to use force or violence. [The other violent criminal activity alleged in this case will be described in these instructions.]
Modify (c), as follows:
(c) Any other felony of which that the defendant has been convicted of other than the murder of _________ <insert name of murder victim> crime[s] in this case.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Need For Clarification Of CALCRIM 763—The above request is based on the CALCRIM Committee’s last draft of this instruction. (Draft CALCRIM 702 ADP.) Without comment from the Committee, this last draft was changed to the current language of CC 763. However, the draft language is more accurate because it is settled California law that “subdivisions (b) and (c) pertain only to criminal activity other than the crimes for which the defendant was convicted in the present proceeding. It would therefore be improper for the jury to consider the underlying crimes as separate and distinct aggravating circumstances under either subdivision.” (People v. Miranda (1987) 44 C3d 57, 106.) However, CALCRIM 763 expressly encourages just such improper consideration when it describes factor (b) as: “whether or not the defendant has engaged in violent criminal activity other than the murder of.” Thus, non-capital crimes for which the defendant is charged and convicted in the same proceeding as the capital crime could be considered twice, once as aggravation under factor (a), and again as aggravation under factor (b), according to this wording in the CALCRIM 763. Such double-counting would be in direct violation of the Miranda rule. Similarly, CC 763 fails to limit the consideration of the factor (c) aggravator to prior felony convictions, and again permits double counting as aggravation of non-capital crimes for which defendant is charged and convicted in the same proceeding as the capital crime.
CC 763 fails to further CALCRIM’s goal of clarifying confusing and misleading CALJIC language. Instead CC 763 reverts to minimalistic statutory language like that contained in the old CALJIC numbers 8.85 and 8.88. But the draft version of the instruction clearly and properly identified which factors can be aggravating and which can only be mitigating under California law. It told jurors that they can only use as aggravation four factors: Factor (a) (circumstances of the crime); factor (b) (other criminal acts involving threats or violence); factor (c) (prior felony convictions); and factor (i) (age of the defendant). (See People v. Coffman and Marlow (2004) 34 C4th 1, 109.) It also properly told jurors that the circumstances of the crime and the defendant’s age can be mitigating, and that the absence of felony convictions and violent criminal activity can be mitigating. (See People v. Gallego (1990) 52 C3d 115, 208 fn.1 (concurring opinion of J. Mosk); People v. Davenport (1985) 41 C3d 247, 288-290.)
It is true that the California Supreme Court has held that the trial court is not required to tell the jury which factors are aggravating and which are mitigating. On the other hand, it is instructional error for the court to suggest that any of the factors may be aggravating when, in fact, only a minority of the factors may be used as aggravating factors. (People v. Wader (1993) 5 C4th 610, 657.) Thus, the Supreme Court has approved of instructions specifically identifying for the jury which factors are aggravating. (See People v. Musselwhite (1998) 17 C4th 1216, 1269; 702ADP, Commentary, p. 5 and Staff Notes, p. 17.)
In the draft instruction, the task force recognized the need for a clear instruction on this critical issue. There, the Staff Notes made the following observation: “Instructing the jurors that they may only consider ‘the statutory aggravating factors,’ without explaining what these are, will invite confusion.”(702ADP, Staff Notes, p. 17.) The Commentary to the draft instruction also stated that “[t]he committee has drafted the instruction to identify the aggravating and mitigating factors to avoid juror confusion on this issue.”(702ADP, Commentary, p. 5.)
Despite such recognition, the final version of the instruction was stripped of all of this crucial legal information. The final version of the CALCRIM instruction is also now legally inaccurate. The following misleading language suggests that the jury can consider any factor as aggravating: “You may not consider as an aggravating factor anything other than the factors contained in this list that you conclude are aggravating in this case.” (CALCRIM 763; emphasis added.) The current language thus leaves the decision as to what statutory factors may be considered to be aggravating entirely to the jurors’ unguided discretion. As noted, it is error to instruct the jury that any factor can be considered in aggravation. (People v. Wader, supra, 5 Cal.4th 610, 657.) It is exactly this type of confusion that the draft instruction sought to rectify, by defining the aggravating and mitigating factors in accordance with the task force’s mandate to provide a clear, understandable and correct statement of the law to jurors.
The probability of juror confusion is increased because of the language in CALCRIM 761, which instructs that “if you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.” Thus, even a legally correct argument about which factors are mitigating only could well fall on deaf ears because of the failure of CALCRIM 763 to clarify this issue for the jury. (But see FORECITE F 761.2 Inst 12 [Strategies For Dealing With Instruction Allowing Jurors To Reject Counsel Arguments That Conflict With The Instructions].)
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 13.13 [Improper Aggravation]
