SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 763.7 Death Penalty: Factors to Consider—Factor e: Inst 1 Victim Participation
F 763.8 Death Penalty: Factors to Consider—Factor f: Belief In Moral Justification
F 763.9 Death Penalty: Factors to Consider—Extreme Duress; Substantial Domination By Another
TABLE OF CONTENTS
F 763.7 Death Penalty: Factors to Consider—Factor e: Inst 1 Victim Participation
F 763.7 (Factor e) Inst 1 Victim Participation: Rarely Used
F 763.8 Death Penalty: Factors to Consider— Factor f: Belief In Moral Justification
F 763.8 (Factor f) Inst 1 (a & b) Belief In Moral Justification: Subjective Standard; Unreasonable Belief Covered In Factor k
F 763.8 (Factor f) Inst 2 Moral Justification Mitigator: Applicability To Non-Killers
F 763.8 (Factor f) Inst 2 Moral Justification Mitigator: Applicability To Non-Killers
F 763.9 Death Penalty: Factors to Consider—Extreme Duress; Substantial Domination By Another
F 763.9 (Factor g) Inst 1 Deletion Of “Extreme”
F 763.9 (Factor g) Inst 2 Format for Instruction That Specific Mitigating Evidence Is Included In Factor K Or Other General Instructions
F 763.9 (Factor g) Inst 3 Substantial Domination: Force Not Necessary
F 763.9 (Factor f) Inst 4 Substantial Domination: One Coconspirator Controlling The Other
Return to Series 700 Table of Contents.
F 763.7 Death Penalty: Factors To Consider—Factor e: Inst 1 Victim Participation
F 763.7 (Factor e) Inst 1 Victim Participation: Rarely Used
*Add to CC 763(Factor e) as follows:
This factor almost never exists and is included in the standard instructions for those few cases where it might be.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Factor (e) Should Be Omitted—Ideally Factor (e) should be omitted except in those rare cases where it applies. Because the factor is almost always absent, including it unconstitutionally skews the instructions in favor of death. (See CG 13.13.)
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 763.8 Death Penalty: Factors To Consider—Factor f: Belief In Moral Justification
F 763.8 (Factor f) Inst 1 (a & b) Belief In Moral Justification: Subjective Standard; Unreasonable Belief Covered In Factor k
*Add to CC 763, Factor f, as follows:
Alternative a:
This factor exists if the defendant subjectively believed (his/her) acts were justified or extenuated and such belief was reasonable, that is a reasonable person in the same situation as the defendant would have held the same belief.
An actual but unreasonable belief in justification or extenuation may be considered in mitigation under Factor k.
Alternative b:
If supported by the evidence, it is proper to consider _________<insert specific mitigating factor, e.g., unreasonable belief in justification> 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.]
Subjective Belief—See People v. Visciotti (1992) 2 C4th 1, 75.
Unreasonable Belief Covered Under Factor k—See People v. Jenkins (2000) 22 C4th 900, 1054-55; People v. Murtishaw (1989) 48 C3d 1001, 1012-14.
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 763.8 (Factor f) Inst 2 Moral Justification Mitigator: Applicability To Non-Killers
*Modify CC 763 (factor f), as follows [deleted language is stricken]:
(f) Whether the defendant reasonably believed that circumstances morally justified or extenuated (his/her) conduct in committing the murder of ________ <insert name of murder victim>.
[Source: Draft CALCRIM 702 ADP; PC 190.3(f).]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Need For Modification Of CALCRIM 763(f)—CALCRIM 763(f) adds unnecessary language to the statutory description of this mitigator. The statute reads “[w]hether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.”(PC190.3(f).) However, CALCRIM 763 adds the following modifier: “whether the defendant reasonably believed that the circumstances morally justified or extenuated his/her conduct in committing the murder of.” The effect of the addition of this non-statutory modifier is to limit this mitigating factor to actual killers. The trier-of-fact for all non-killer capital defendants will not be able to consider this factor as a mitigator because of the way it is currently phrased in the CALCRIM instruction. Such a limitation of statutory mitigation by the instruction violates the Due Process Clause of the federal constitution. (See Hicks v. Oklahoma (1980) 447 US 343, 346.)
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 6.3 [Arbitrary Denial Of State Created Right]
FORECITE CG 13.11 [Jury Must Consider Mitigating Evidence]
F 763.9 Death Penalty: Factors To Consider—Extreme Duress; Substantial Domination By Another
F 763.9 (Factor g) Inst 1 Deletion Of “Extreme”
*Modify CC 763, Factor g, as follows [deleted language is stricken]:
Whether at the time of the murder the defendant acted under extreme duress or under the substantial domination of another person.
Points and Authorities
See FORECITE F 763.6 (Factor d) Inst 1.
F 763.9 (Factor g) Inst 2Format For Instruction That Specific Mitigating Evidence Is Included In Factor k Or Other General Instructions
*Add to CC 763 (Factor g):
If supported by the evidence it is proper to consider _________<insert specific mitigating factor, e.g., non-extreme duress> 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
See FORECITE F 763.9 (Factor d) Inst 2.
F 763.9 (Factor g) Inst 3 Substantial Domination: Force Not Necessary
*Add to CC 763, Factor g, as follows:
Substantial domination does not require actual or threatened force.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Domination By Personality—Frey v. Fulcomer (3rd Cri. 1992) 974 F2d 348, 362-63. [“A dominant co-conspirator may have a magnetic, persuasive personality and the defendant may simply be psychologically easy to manipulate, such that threatened force is unnecessary.”]
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 763.9 (Factor f) Inst 4 Substantial Domination: One Coconspirator Controlling The Other
*Add to CC 763, Factor g, as follows:
This factor may exist if, for example, one member of a conspiracy controls another.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Control By Member Of Conspiracy—People v. Ervin (2000) 22 C4th 48, 98.
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.
