SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 763.10 Death Penalty: Factors To Consider—Factor h: Diminished Capacity
TABLE OF CONTENTS
F 763.10 (Factor h) Inst 1 Diminished Capacity: Lower Standard Than Insanity Or Diminished Actuality
F 763.10 (Factor h) Inst 2 Diminished Capacity: Consideration Under Factor k
F 763.10 (Factor h) Inst 3 Mental Impairment Not Limited To Excuse Or Negation Of An Element
F 763.10 (Factor h) Inst 4 Mental State Evidence Limited To Mitigation
F 763.10 (Factor h) Inst 5 Limiting Instruction When Mental State Evidence Admissible As To Aggravation
F 763.10 (Factor h) Inst 6 Mental Impairment Need Not Be Operative At The Time Of The Offense
F 763.10 (Factor h) Inst 7 Mental Impairment May Be Considered As Mitigation Even If Jurors Rejected Guilt Phase Defense
F 763.10 (Factor h) NOTES
F 763.10 (Factor h) Note 1 Placing Defendant’s Mental State At Issue Permits Mental Examination Of Defendant By Prosecution
Return to Series 700 Table of Contents.
F 763.10 (Factor h) Inst 1 Diminished Capacity: Lower Standard Than Insanity Or Diminished Actuality
*Add to CC 763, Factor h, as follows:
The mental impairment referred to in this instruction is not limited to evidence which excuses the crime or reduces the defendant’s legal culpability, but includes any degree of mental defect, disease, or intoxication which you determine is of a nature that death should not be imposed. That the jury has rejected a defense of insanity, diminished capacity or diminished actuality at a previous stage of the proceedings does not prohibit its consideration of evidence showing some impairment as a reason not to impose death.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Lower Standard—A jury which has heard a guilt defense involving mental impairment or insanity might not understand that Factor h requires a lower showing of impairment. (See e.g., People v. Weaver (2001) 26 C4th 876, 982-83.)
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 13.11 [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.
F 763.10 (Factor h) Inst 2 Diminished Capacity: Consideration Under Factor k
*Add to CC 763, Factor h, as follows:
Evidence of diminished capacity, which does not fall under Factor h, may be considered under Factor k.
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 e.g., People v. Taylor (2001) 26 C4th 1155, 1179; see also FORECITE F 763.6 (Factor d) 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.
F 763.10 (Factor h) Inst 3 Mental Impairment Not Limited To Excuse Or Negation Of An Element
*Add to CC 763:
Alternative a:
The mental impairment referred to in this instruction is not limited to evidence which excuses the crime or reduces defendant’s culpability, but includes any degree of mental defect, disease or intoxication which the jury determines is of a nature that death should not be imposed.
Alternative b:
[See FORECITE F 763.10 (Factor h) Inst 7.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Right To Defense Theory Instruction—See FORECITE F 315.1.2 Inst 2.
Defense Theory Of Mental Impairment—This instruction, which is patterned after the federal death penalty statute (see 21 USC 848(m)(1)), “correctly state[s] the law.” (People v. Smith (2005) 35 C4th 334, 362.)
Moreover, the instruction pinpoints and clarifies the defendant’s theory that his/her mental impairment, although insufficient to establish insanity or to negate any elements of the offense, is a valid mitigating circumstance which, alone and/or in consideration with other factors, justifies sparing the defendant’s life. It is well settled that the defendant has a right, upon request, to an instruction which relates the defense theory of the case to an element of the charge. (See, e.g., People v. Wright (1988) 45 C3d 1126, 1136-37 [see FORECITE PG III(A) for additional authorities].)
It is also beyond dispute that intoxication or mental impairment, even if insufficient to defeat the guilt charges, is a fact which the jury may consider in mitigation. (See People v. Lucero (1988) 44 C3d 1006, 1029-1131; see also Penry v. Lynaugh (1989) 492 US 302 [106 LEd2d 256; 109 SCt 2934].)
Accordingly, even though there may be no sua sponte duty to clarify the statutory factors (see People v. Hernandez (1988) 47 C3d 315, 359-60), the defense theory should be pinpointed and clarified upon request. (See State v. English (La 1979) 367 So.2d 815: reversible error to refuse defendant’s instruction that mental disease or defect as used in the penalty phase was not to be confused with insanity; see also Drinkard v. Johnson (5th Cir. 1996) 97 F3d 751, 756 [instruction may not constitutionally preclude jury from considering mitigating evidence that did not rise to the level of temporary insanity].)
Refusal of the requested clarification would implicate defendant’s 8th (cruel and unusual punishment) and 14th (due process/equal protection) Amendment rights by failing to assure jury consideration of important mitigating evidence and by reducing the reliability of the sentence. (See Lockett v. Ohio (1978) 438 US 586 [57 LEd2d 973; 98 SCt 2954].)
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 (1992) 504 US 527 [119 LEd2d 326; 112 SCt 2114]; Penry v. Lynaugh (1989) 492 US 302, 318 [106 LEd2d 256; 109 SCt 2934]; Clemons v. Mississippi (1990) 494 US 738 [108 LEd2d 725; 110 SCt 1441]; McCleskey v. Kemp (1987) 481 US 279 [95 LEd2d 262; 107 SCt 1756].)
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 13.11 [Jury Must Consider Mitigating Evidence]
CALJIC NOTE: See FORECITE F 8.85(h) Inst 1.
F 763.10 (Factor h) Inst 4 Mental State Evidence Limited To Mitigation
*Add to CC 763:
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
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Mental Impairment Not Permissible As Aggravation—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 763.6 (Factor d) Inst 5.
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 13.13 [Improper Aggravation]
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 20.
F 763.10 (Factor h) Inst 5 Limiting Instruction When Mental State Evidence Admissible As To Aggravation
*Add to CC 763:
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
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Limiting Instruction—Generally mental state evidence is admissible only for purposes of mitigation. (See FORECITE F 763.6 (Factor d) Inst 3.) 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.
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 13.13 [Improper Aggravation]
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 21.
F 763.10 (Factor h) Inst 6 Mental Impairment Need Not Be Operative At The Time Of The Offense
*Add to CC 763:
The mental impairment referred to in this instruction is not limited to evidence which excuses the crime or reduces defendant’s culpability, but includes any degree of mental defect, disease or intoxication which the jury determines is of a nature that death should not be imposed.
Such a mental disease or defect may be considered by you as a mitigating factor whether or not the mental condition caused the defendant to commit the offense and whether or not the condition was operative at the time of the offense.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Right To Defense Theory Instruction—See FORECITE F 315.1.2 Inst 2.
Defense Theory Of Mental Impairment—This instruction, which is patterned after the federal death penalty statute (see 21 USC 848(m)(1)), “correctly state[s] the law.” (People v. Smith (2005) 35 C4th 334, 362.)
It is also beyond dispute that intoxication or mental impairment, even if insufficient to defeat the guilt charges, is a fact which the jury may consider in mitigation. (See People v. Lucero (1988) 44 C3d 1006, 1029-1131; see also Penry v. Lynaugh (1989) 492 US 302 [106 LEd2d 256; 109 SCt 2934].)
Accordingly, even though there may be no sua sponte duty to clarify the statutory factors (see People v. Hernandez (1988) 47 C3d 315, 359-60), the defense theory should be pinpointed and clarified upon request. (See generally People v. Wright (1988) 45 C3d 1126, 1136-37; FORECITE PG III(A); State v. English (La 1979) 367 So.2d 815 [reversible error to refuse defendant’s instruction that mental disease or defect as used in the penalty phase was not to be confused with insanity]; see also Drinkard v. Johnson (5th Cir. 1996) 97 F3d 751, 756 [instruction may not constitutionally preclude jury from considering mitigating evidence that did not rise to the level of temporary insanity].)
Refusal of the requested clarification would implicate defendant’s 8th (cruel and unusual punishment) and 14th (due process/equal protection) Amendment rights by failing to assure jury consideration of important mitigating evidence and by reducing the reliability of the sentence. (See Lockett v. Ohio (1978) 438 US 586 [57 LEd2d 973; 98 SCt 2954].)
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 right to due process and equal protection. (8th and 14th Amendments.) (E.g., Sochor v. Florida (1992) 504 US 527 [119 LEd2d 326; 112 SCt 2114]; Penry v. Lynaugh (1989) 492 US 302, 318 [106 LEd2d 256; 109 SCt 2934]; Clemons v. Mississippi (1990) 494 US 738 [108 LEd2d 725; 110 SCt 1441]; McCleskey v. Kemp (1987) 481 US 279 [95 LEd2d 262; 107 SCt 1756].)
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 13.11 [Jury Must Consider Mitigating Evidence]
CALJIC NOTE: See FORECITE F 8.85(h) Inst 1.
F 763.10 (Factor h) Inst 7 Mental Impairment May Be Considered As Mitigation Even If Jurors Rejected Guilt Phase Defense
*Add to CC 763:
Alternative a:
Even if you have rejected a defense of insanity, diminished capacity or diminished actuality at a previous stage of the proceedings, you may still consider evidence showing some impairment as a reason not to impose death.
Alternative b:
[See FORECITE F 763.10 (Factor h) Inst 3.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Right To Defense Theory Instruction—See FORECITE F 315.1.2 Inst 2.
Defense Theory Of Mental Impairment—This instruction which is patterned after the federal death penalty statute (see 21 USC 848(m)(1)) pinpoints and clarifies defendant’s theory that his mental impairment, although insufficient to establish insanity or to negate any elements of the offense, is a valid mitigating circumstance which, alone and/or in consideration with other factors, justifies sparing the defendant’s life. (See People v. Smith (2005) 35 C4th 334, 362 [the term “mental disease or defect” is not limited to evidence which excuses the crime or limits the defendant’s culpability]; see also FORECITE F 763.10 (Factor h) Inst 3 and F 763.10 (Factor h) Inst 6.) It is well settled that the defendant has a right, upon request, to an instruction which relates the defense theory of the case to an element of the charge. (See, e.g., People v. Wright (1988) 45 C3d 1126, 1136-37 [see FORECITE PG III(A) for additional authorities].)
It is also beyond dispute that intoxication or mental impairment, even if insufficient to defeat the guilt charges, is a fact which the jury may consider in mitigation. (See People v. Lucero (1988) 44 C3d 1006, 1029-1131; see also Penry v. Lynaugh (1989) 492 US 302 [106 LEd2d 256; 109 SCt 2934].)
Accordingly, even though there may be no sua sponte duty to clarify the statutory factors (see People v. Hernandez (1988) 47 C3d 315, 359-60), the defense theory should be pinpointed and clarified upon request. (See State v. English (La 1979) 367 So.2d 815: reversible error to refuse defendant’s instruction that mental disease or defect as used in the penalty phase was not to be confused with insanity; see also Drinkard v. Johnson (5th Cir. 1996) 97 F3d 751, 756 [instruction may not constitutionally preclude jury from considering mitigating evidence that did not rise to the level of temporary insanity].)
Refusal of the requested clarification would implicate defendant’s 8th (cruel and unusual punishment) and 14th (due process/equal protection) Amendment rights by failing to assure jury consideration of important mitigating evidence and by reducing the reliability of the sentence. (See Lockett v. Ohio (1978) 438 US 586 [57 LEd2d 973; 98 SCt 2954].)
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 right to due process and equal protection. (8th and 14th Amendments.) (E.g., Sochor v. Florida (1992) 504 US 527 [119 LEd2d 326; 112 SCt 2114]; Penry v. Lynaugh (1989) 492 US 302, 318 [106 LEd2d 256; 109 SCt 2934]; Clemons v. Mississippi (1990) 494 US 738 [108 LEd2d 725; 110 SCt 1441]; McCleskey v. Kemp (1987) 481 US 279 [95 LEd2d 262; 107 SCt 1756].)
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 13.11 [Jury Must Consider Mitigating Evidence]
CALJIC NOTE: See FORECITE F 8.85(h) Inst 1.
F 763.10 (Factor h) Note 1 Placing Defendant’s Mental State At Issue Permits Mental Examination Of Defendant By Prosecution
When a defendant relies on a defense theory of “diminished actuality,” PC 1054 (discovery in criminal cases) does not give the prosecution access to defendant for purposes of a mental examination conducted by a prosecution expert. (Verdin v. Superior Court (2008) 43 C4th 1096.)
