SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 763.4 Death Penalty: Factors to Consider—Factor b: Prior Criminal Conduct
F 763.5 Death Penalty: Factors to Consider—Factor c: Prior Felony Convictions
F 763.6 Death Penalty: Factors to Consider—Factor d: Extreme Mental Or Emotional Disturbance
TABLE OF CONTENTS
F 763.6 (Factor d) Inst 1 Deletion Of “Extreme”
F 763.6 (Factor d) Inst 2 Non-Extreme Mental Or Emotional Disturbance Is Included In Factor K Or Other General Instructions
F 763.6 (Factor d) Inst 3 Mental State Evidence Limited To Mitigation
F 763.6 (Factor d) Inst 4 Limiting Instruction When Mental State Evidence Admissible As To Aggravation
F 763.6 (Factor d) Inst 5 Mental Or Emotional Disturbance: Expert Not Required
F 763.6 (Factor d) Inst 6 Mental Or Emotional Disturbance: Does Not Need To Justify Or Excuse The Murder
F 763.6 (Factor d) Inst 7 Extreme Mental Or Emotional Disturbance (PC 190.3(d)): Reasonable Person Standard Inapplicable
F 763.6 (Factor d) Inst 8 Format for Instruction That Specific Mitigating Evidence Is Included in Factor K Or Other General Instructions
Return to Series 700 Table of Contents.
F 763.4 Death Penalty: Factors to Consider—Factor b: Prior Criminal Conduct
See FORECITE F 764.
F 763.5 Death Penalty: Factors to Consider—Factor c: Prior Felony Convictions
See FORECITE F 765.
F 763.6 Death Penalty: Factors To Consider—Factor d: Extreme Mental Or Emotional Disturbance
F 763.6 (Factor d) Inst 1 Deletion Of “Extreme”
*Modify CC 763, Factor d, as follows [deleted language is stricken]:
Whether the defendant was under the influence of extreme mental or emotional disturbance when (he/she) committed the murder of _________ <insert name of murder victim>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—Even though this argument has been rejected by the California Supreme Court (see People v. Lawley (2002) 27 C4th 102, 168), studies demonstrate that the jurors do not understand that they may consider less than “extreme” mental disturbance under the catchall factor k. (See FORECITE PG II(K).)
Hence, use of the term “extreme” in factor (d) might mislead the jurors into concluding that “less than extreme” emotional disturbance is not a mitigating factor. Such a conclusion would seem reasonable because factor (d) is the only factor in CC 763 which specifically mentions emotional disturbance. When a generally applicable instruction is specifically made applicable to one aspect of the charge and not repeated with respect to another aspect, the inconsistency may be prejudicial error. (People v. Salas (1976) 58 CA3d 460, 474; see also U.S. v. Echeverri (3rd Cir. 1988) 854 F2d 638, 643 [giving a special unanimity instruction as to predicate acts under a RICO charge, but not as to predicate acts under a concurrent CCE (Continuing Criminal Enterprise) charge, violated due process, since jurors may have inferred from this discrepancy that unanimity was not required as to the CCE related predicate acts].)
“Although the average layperson may not be familiar with the Latin phrase inclusio unius est exclusion alterius, the deductive concept is commonly understood ….” (People v. Castillo (1997) 16 C4th 1009, 1020 [conc. opn. of Brown, J.]; see also U.S. v. Crane (9th Cir. 1992) 979 F2d 687, 690 [maxim expressio unius est exclusio alterius “is a product of logic and common sense”].) That is how the California Supreme Court reasoned in People v. Dewberry (1959) 51 C2d 548, 557:
The failure of the trial court to instruct on the effect of a reasonable doubt as between any of the included offenses, when it had instructed as to the effect of such doubt as between the two highest offenses, and as between the lowest offense and justifiable homicide, left the instructions with the clearly erroneous implication that the rule requiring a finding of guilt of the lesser offense applied only as between first and second degree murder.
However, in the case of CJ 8.85, factor (d), the California Supreme Court has consistently assumed that reasonable jurors would consider less than extreme emotional disturbance as mitigating under the catch-all factor (k). (People v. Morris (1991) 53 C3d 152, 225-26; People v. Cox (1991) 53 C3d 618, 681; People v. McPeters (1992) 2 C4th 1148, 1192.)
Besides being contrary to common sense as discussed above, this assumption is also contrary to the reasoning of the Ninth Circuit Court of Appeals in an analogous context in U.S. v. Smith (9th Cir. 2003) 330 F3d 1209. Under the Federal Sentencing Guidelines, guideline USSG 5K2.13 permits a downward departure for diminished mental capacity, but only under certain specified circumstances. Smith argued for a downward departure under the catch-all sentencing factor on the basis of diminished mental capacity which didn’t come within 5K2.13. The 9th Circuit said no, concluding that the clear meaning of 5K2.13 was that diminished mental capacity which didn’t come within its definition could not be the basis for a downward departure at all. Hence, the Ninth Circuit interpreted the guidelines in the same manner as the defense has contended the jurors would interpret CJ 8.85, factor (d).
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.
Thanks to Robert D. Bacon of Oakland, California, for suggesting this argument.
CALJIC NOTE: See FORECITE F 8.85 n30.
F 763.6 (Factor d) Inst 2 Non-Extreme Mental Or Emotional Disturbance Is Included In Factor k Or Other General Instructions
*Add to CC 763:
If supported by the evidence it is proper to consider _________<insert specific mitigating factor, e.g., mental or emotional disturbance that is not extreme> when determining the appropriate penalty. You are further instructed that such evidence is to be included within the meaning of factor (__), _________________ <e.g., k, any other circumstances which extenuate the gravity of the crime>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction That Non-Statutory Mitigating Factor Is Included In Specific Statutory Factor—An instruction using this format for victim impact evidence was approved in People v. Harris (2005) 37 C4th 310, 358. Even though victim impact is considered to be included in the more general Factor(a) instruction, the Supreme Court held that the prosecution had the right to inform the jurors of that fact. (Ibid. [“The instruction given properly informed the jury of the law….”]) The same reasoning should be applied to a defense request to inform the jury that a specific mitigating factor such as lingering doubt, is included in a more general instruction. (See Wardius v. Oregon (1973) 412 US 470 [37 LEd2d 82; 93 SCt 2208]; see also FORECITE F 1.00l.)
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 763.6 (Factor d) Inst 3 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 Should Not Be Considered 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 763.6 (Factor d) Inst 4 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
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, 360-61 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 763.6 (Factor d) Inst 5 Mental Or Emotional Disturbance: Expert Not Required
*Add to CC 763, Factor d, as follows:
Expert testimony is not required for you to conclude that this factor exists.
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. Haskett (1990) 52 C3d 210, 230-32.
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 763.6 (Factor d) Inst 6 Mental Or Emotional Disturbance: Does Not Need To Justify Or Excuse The Murder
*Add to CC 763, Factor d, as follows:
It is not necessary that the mental or emotional disturbance justify or excuse the murder. Any high wrought or enthusiastic emotion such as extreme anger, jealousy, or rage may qualify if it clouds the judgment and leads to rashness or impulse.
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 California death penalty law was based on factors which were set out in the ALI’s Model Penal code. In the Commentary to the Model Penal’s discussion about mental disturbance, the drafters note that the level of mental disturbance necessary to “weigh against” the imposition of the death penalty is obviously less and of different quality than that which would justify a homicide or reduce it to manslaughter. (See American Law Institute, Model Penal Code and Commentaries (1980), p. 138; see also People v. Berry (1976) 18 C3d 509.)
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 763.6 (Factor d) Inst 7 Extreme Mental Or Emotional Disturbance (PC 190.3(d)): Reasonable Person Standard Inapplicable
*Add to CC 763 (Factor d) as follows:
Evidence has been received for the purpose of showing that the defendant was under the influence of extreme [mental] [emotional] disturbance at the time that the offense was committed. You may not discount that evidence even if you conclude that a reasonable person would not have been under such influence. Your only concern in this regard is whether the defendant was actually under the influence of such a disturbance.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Reasonable Person Standard Not Applicable—People v. Holt (1997) 15 C4th 619, 710-11, Werdegar concurring, held that the “reasonable person” standard is inappropriate in determining whether a person actually acted under extreme mental or emotional disturbance under PC 190.3(d). The persuasive force of the proffered mitigating evidence may not be discounted due to a belief that a reasonable person would not have been under such influence. To do so, would be to fail to accord the defendant’s mitigating evidence the weight to which it was legally entitled in violation of the Federal Constitution (8th and 14th Amendments). Clarification of this distinction is particularly important in cases where instruction on the reasonable person standard was given elsewhere in the instructions (e.g., heat of passion, self-defense.)
It is essential under the 8th Amendment of the federal constitution that the jury consider all relevant mitigating evidence. (See Lockett v. Ohio (1978) 438 US 586 [57 LEd2d 973; 98 SCt 2954].)
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.
CALJIC NOTE: See FORECITE F 8.85(d) Inst 1.
F 763.6 (Factor d) Inst 8Format For Instruction That Specific Mitigating Evidence Is Included In Factor k Or Other General Instructions
*Add to CC 763:
If supported by the evidence, it is proper to consider _________<insert specific mitigating factor, eg., lingering doubt of the defendant’s guilt> when determining the appropriate penalty. You are further instructed that such evidence is to be included within the meaning of factor (__), ___________________ <e.g., k, any other circumstances which extenuate the gravity of the crime>.
Points and Authorities
An instruction using this format for victim impact evidence was approved in People v. Harris (2005)37 C4th 310, 358. Even though victim impact is considered to be included in the more general Factor(a) instruction, the Supreme Court held that the prosecution had the right to inform the jurors of that fact. (Ibid. [“The instruction given properly informed the jury of the law….”]) The same reasoning should be applied to a defense request to inform the jury that a specific mitigating factor, such as lingering doubt, is included in a more general instruction. (See Wardius v. Oregon (73) 412 US 470 [37 LEd2d 82; 93 SCt 2208]; see also FORECITE F 1.00l.)
