SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 764 NOTES
TABLE OF CONTENTS
F 764 Note 1 Legal Rules
F 764 Note 2 Factor b: Requirements
F 764 Note 3 Applicability Of Accomplice Instructions To Penalty Phase
F 764 Note 4 Accomplice Testimony Regarding Factor (b) Evidence
F 764 Note 5 Prior Violent Criminal Activity (PC 190.3(b)):Consideration Of Greater Uncharged Offense
F 764 Note 6 Unadjudicated Violent Crimes: Applicability To Arson
F 764 Note 7 Unadjudicated Violent Crimes: Prosecution May Obtain Instruction On Each Crime
F 764 Note 8 Unadjudicated Violent Crimes: Accomplice Testimony Must be Corroborated
F 764 Note 9 Unadjudicated Violent Crimes: Objection To Instruction On Elements As Prosecution Pinpoint Instruction
F 764 Note 10 Prior Felony Convictions: Instructions Given Must Be Correct
F 764 Note 11 Unanimity As To Factor b Crimes
F 764 Note 12 Modification Of Guilt Phase Instructions
F 764 Note 13 Factor (b) Instructions Should Reflect Wording At The Time Of The Act
F 764 Note 14 Absence Of Factor b Evidence As Mitigation
F 764 Note 15 Whether A Crime Involves Force Or Violence Under Factor b Depends On The Circumstances Of Its Commission
Return to Series 700 Table of Contents.
F 764 Note 1 Legal Rules
1. Twofold Scope Of Factor b—Factor b includes two types of uncharged crimes evidence:
1. Unadjudicated criminal activity.
2. Prior convictions for crimes of violence.
2. Burden Of Proof Unadjudicated Criminal Activity
2.1 Proof Beyond A Reasonable Doubt—People v. Robertson (1982) 33 C3d 21, 53.
2.2 Instruction On Defenses—It would violate the state and federal constitutions to allow the jurors to find and impose death based on a purported crime which wasn’t really a crime due to the existence of a defense. (See FORECITE F 315.1.2 Inst 2; FORECITE CG 4.1; see also Ring v. Arizona (2002) 536 US 584 [153 LEd2d 556; 122 SCt 2428].)
The California Supreme Court cases which have suggested that it is not necessary to instruct on such defenses cannot be reconciled with these constitutional principles. (E.g., People v. Cain (95) 10 C4th 1, 45; People v. Davis (1995) 10 C4th 463, _____.)
Moreover, in People v. Montiel (1993) 5 C4th 877, the court recognized that although there is no sua sponte duty at the penalty phase to instruct on elements of “other crimes” introduced in aggravation, when such instructions are given, they should be accurate and complete. (Montiel 5 C4th at 942.) Therefore, the court assumed, without deciding, that penalty instructions on the elements of aggravating “other crimes” should include, on the court’s own motion if necessary, any justified defenses such as intoxication. (Ibid.)
NOTE: Montiel’s conclusion regarding intoxication instructions is based upon its assumption that “the court must instruct sua sponte on legally available defenses, such as intoxication, which may negate specific intent when such defenses are supported by substantial evidence.” [Citation to People v. Sedeno (1974) 10 C3d 703, 716.] However, Montiel does not discuss People v. Saille (1991) 54 C3d 1103, 1120 which held that intoxication instructions must be requested.
2.3 Tactical Reasons For Not Requesting Complex Instructions On Elements Of Factor b Allegations—See CACJ/CPDA Manual § D(2)(b), page 44.
2.4 Unadjudicated Violent Crimes: Sua Sponte Duty To Instruct On Elements—In People v. Cain (1995) 10 C4th 1, 72-73, the court suggested that there may be some circumstances under which “the trial court would have a sua sponte obligation to instruct on elements or defenses” of uncharged violent criminal activity under PC 190.3(b). Hence, where the instructions are so vital to the jury’s evaluation of defendant’s prior actions, instruction on the elements and/or defenses may be required sua sponte. (Ibid.)
2.5 Unadjudicated Violent Crimes: Duty To Instruct On Elements Applies Where Evidence Presented At Guilt Phase—The rule in People v. Robertson (1982) 33 C3d 21, 53, that unadjudicated crimes presented at the penalty phase must be proven beyond a reasonable doubt before the jury may consider them is equally applicable where the evidence was presented at the guilt phase. (People v. Champion (1995) 9 C4th 879, 949-50.)
2.6 No Burden Of Proof As To Violent Prior Conviction Under Factor b—(See e.g., People v. Welch (1995) 20 C4th 701, 768.)
CALJIC NOTE: See FORECITE F F 8.85(b) n2; F 8.85(b) n5; F 8.85(b) n6.
F 764 Note 2 Factor b: Requirements
1. Factor b Allegation Must Violate A Penal Statute—People v. Wright (1990) 52 C3d 367, 425.
2. Factor b Allegation Must Involve Violence To A Person—Factor (b) of PC 190.3 encompasses only those threats of violent injury that are directed against a person or persons. (People v. Lewis (2001) 26 C4th 334, 391-92; see also People v. Kirkpatrick (1994) 7 C4th 988, 1015-16; FORECITE F 8.85(b) n13.)
3. Unadjudicated Violent Crimes: Escape Must Be Violent—People v. Jackson (1996) 13 C4th 1164, 1231-32 recognized but did not address the question of whether a “non-violent” escape may be admitted as prior violent criminal activity under PC 190.3(b). [Compare concurring opinions of Mosk and Baxter, 13 C4th at 1254-64.] In any event, however, if an escape is admitted into evidence, it may be advisable to modify the standard definition of escape (CJ 7.31), so as not to permit the jury to consider physical force against property as an aggravating factor. (See Jackson, 13 C4th at 1264, fn 4, Baxter concurring; see also FORECITE F 7.31a.)
4. Factor b Allegation Must Involve Acts For Which Defendant Is Not On Trial—People v. Coddington (2000) 23 C4th 529, 643-44.
CALJIC NOTE: See FORECITE F 8.85(b) n4; F 8.85(b) n7.
F 764 Note 3 Applicability Of Accomplice Instructions To Penalty Phase
The general rules requiring accomplice instructions apply at the penalty phase as well as the guilt phase of a capital trial. (People v. Williams (1997) 16 C4th 153, 275-76.) When the prosecution seeks to introduce evidence of the defendant’s unadjudicated prior criminal conduct, the jury should be instructed at the penalty phase that accomplice testimony must be corroborated. (Ibid.) However, the corroboration requirement does not extend to cases where the jury has already found the defendant guilty of the aggravated prior crime. (Ibid.)
CALJIC NOTE: See FORECITE F 8.85(b) n8.
F 764 Note 4 Accomplice Testimony Regarding Factor (b) Evidence
When the prosecution seeks to introduce evidence of other unadjudicated criminal activity under factor (b), the accomplice corroboration instructions should be given at the penalty phase, People v. Williams (1997) 16 C4th 153, 275-76. However, this requirement does not apply to actual convictions as opposed to unadjudicated criminal activity. (Ibid.)
CALJIC NOTE: See FORECITE F 8.85(b) n10.
F 764 Note 5 Prior Violent Criminal Activity (PC 190.3(b)): Consideration Of Greater Uncharged Offense
Even though the defendant has pled guilty to a lesser crime, under PC 190.3(b), the prosecutor may introduce the underlying facts of the crime and have the jury instructed to consider whether the defendant actually committed a greater crime than the one which defendant admitted in the plea. (People v. Jones (1998) 17 C4th 279, 312 [defendant pled to misdemeanor battery but jury was allowed to find that the offense was assault likely to cause great injury (PC 245 (a)(1)].)
However, there remains the question of whether, in such a situation, the jury should be instructed upon the principle of People v. Dewberry (1959) 51 C2d 548, 555 which instructs the jury to convict of the lesser crime if there is a reasonable doubt as to whether the greater or lesser was committed. (CJ 17.10; see also FORECITE F 3517 Inst 2; F 17.10a.) In Jones, the Supreme Court declined to consider whether a Dewberry instruction should have been given because the instruction “might have harmed defendant by signaling that the assault-based offense, for which there was strong evidence, was a more serious crime than simple battery, a misdemeanor.” (Jones, 98 DAR at 1033.)
Hence, before requesting such an instruction, counsel should consider whether it will benefit the defendant. If it is determined that the defendant will benefit from the instruction, Jones should not be an impediment to giving the instruction if counsel makes it clear that the instruction is part of the defense theory (see FORECITE PG III(A)) and whatever potential harm which may arise from it is waived. (See FORECITE, e.g., F 362.1 Inst 9 [a criminal defendant may waive rights that exist for his or her own benefit].) The party who benefits from a cautionary or limiting instruction may object to the instruction for tactical reasons. (See also FORECITE PG VI(C)(1.1).)
CALJIC NOTE: See FORECITE F 8.85(b) n12.
F 764 Note 6 Unadjudicated Violent Crimes: Applicability To Arson
It may be argued that arson does not qualify under PC 190.3(b). However, in People v. Lewis (2001) 26 C4th 334, 391-92, the California Supreme Court did not discuss whether there is any error in the trial court’s giving an instruction that the jury may consider “[a]rson (burning the property of Fresno County)”as an aggravating factor, nor did Justice Kennard comment on this instruction, even though she cited several California Supreme Court cases holding that violence to property is not sufficient to justify admitting evidence of violence or the threat of violence as an aggravating factor.
CALJIC NOTE: See FORECITE F 8.85(b) n13.
F 764 Note 7 Unadjudicated Violent Crimes: Prosecution May Obtain Instruction On Each Crime
See People v. Michaels (2002) 28 C4th 486.
CALJIC NOTE: See FORECITE F 8.85(b) n14.
F 764 Note 8 Unadjudicated Violent Crimes: Accomplice Testimony Must be Corroborated
See People v. McDermott (2002) 28 C4th 946 [where an accomplice testifies at penalty phase concerning other alleged violent criminal activity by defendant, there must be corroboration of the accomplice’s testimony].
CALJIC NOTE: See FORECITE F 8.85(b) n15.
F 764 Note 9 Unadjudicated Violent Crimes: Objection To Instruction On Elements As Prosecution Pinpoint Instruction
There can be no doubt that CJ 8.86 and CJ 8.87 instruct the jurors regarding specific evidence in the form of the defendant’s past criminal activity. Such a focus on specific evidence has been condemned as improperly argumentative. (See e.g., People v. Wright (1988) 45 C3d 1126, 1135-1138; see also FORECITE F 2.03 n8.) The California Supreme Court has consistently rejected challenges to such prosecution pinpoint instructions on the basis that the instructions actually benefit the defendant:
“Absent instructions like CALJIC Nos. 8.86 and 8.87, there is no assurance the jury will consider only proper aggravating evidence.” (People v. Yeoman (2003) 31 C4th 93, 151; see also, People v. Jackson (1996) 13 C4th 1164, 1224 [CJ 2.03, CJ 2.04, CJ 2.52 and CJ 2.06 are not improper pinpoint instructions because the cautionary nature of the instructions benefits the defense].)
However, the fact that an instruction may benefit the defendant does not justify giving it over a defense objection. It is axiomatic that the party to whom a benefit inures may waive that benefit. (See FORECITE F 2.03 n9.)
Moreover, it is a fundamental premise of jury instruction practice that the party who benefits from a limiting or cautionary instruction should control whether or not the instruction is given. In fact, it is axiomatic that unless the benefitting party requests such an instruction, it should not be given under the assumption that the party made a tactical decision to forego the benefits of the instruction to avoid the greater prejudice of giving undue emphasis to the object of the instruction. (See FORECITE PG VI(C)(1.1).)
In sum, CJ 8.86 and CJ 8.87 should not be given over objection by the defense.
CALJIC NOTE: See FORECITE F 8.85(b) n16.
F 764 Note 10 Prior Felony Convictions: Instructions Given Must Be Correct
Even though the trial court has no sua sponte duty to instruct upon the elements of other crimes introduced at the penalty phase as aggravating factors, if instructions are given, the court has a duty to instruct correctly. (People v. Cummings (1993) 4 C4th 1233, 1337.)
CALJIC NOTE: See FORECITE F 8.85(c) n1.
F 764 Note 11 Unanimity As To Factor b Crimes
The California Supreme Court has said that unanimity is not required. (See e.g., People v. Anderson (2001) 25 C4th 543, 590.) However, the federal courts have not decided whether unanimity is required under the rationale of Ring v. Arizona (2002) 536 US 584 [153 LEd2d 556; 122 SCt 2428]; but see CACJ/CPDA Manual regarding tactical considerations.
F 764 Note 12 Modification Of Guilt Phase Instructions
If guilt phase instructions are used for Factor (b) evidence, they should be modified to refer to Factor (b) and not guilt. (See e.g., People v. Coleman (1989) 48 C3d 112, 156-57.)
F 764 Note 13 Factor (b) Instructions Should Reflect Wording At The Time Of The Act
See People v. Jennings (1988) 46 C3d 963, 983-84.
F 764 Note 14 Absence Of Factor b Evidence As Mitigation
In Delo v. Lashley (1993) 507 US 272 [122 LEd2d 620, 627; 113 SCt 1222], the court held that the judge had no obligation to instruct on the mitigating circumstance of defendant’s lack of significant history of prior criminal activity when the defendant had failed to make any attempt to show that he lacked a criminal past. This case raises the question of whether defendants in California must similarly present evidence of their lack of prior criminal activity before obtaining instruction thereon. However, the California Supreme Court has determined that it is “the better practice for a court to instruct on all the statutory penalty factors, directing the jury to be guided by those that are applicable on the record.” (People v. Marshall (1990) 50 C3d 907, 932.) Such an instruction better enables the jury to “place the individual defendant’s conduct in perspective” and also avoids the risk that a factor that is applicable on a given record may nevertheless be erroneously omitted. (Ibid.) Moreover, the California statute refers to “presence or absence” of prior criminal activity unlike the Missouri statute.
NOTE: Even if an evidentiary showing is necessary, only a minimal showing is necessary to justify the instruction, such as the testimony of the defendant’s acquaintances or a presentence report. (Delo, 122 LEd2d at 627-28.)
CALJIC NOTE: See FORECITE F 8.85(b) n1.
F 764 Note 15 Whether A Crime Involves Force Or Violence Under Factor b Depends On The Circumstances Of Its Commission
See People v. Dunkle (2005) 36 C4th 861 [whether a burglary “involves” force or violence, and thus qualifies as an aggravating factor under Factor 190.3(b) depends on the circumstances of its commission].
