SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 766 Death Penalty: Weighing Process
TABLE OF CONTENTS
F 766.1 Titles And Identification Of Parties
F 766.1 Inst 1 Death Penalty: Weighing Process—Title
F 766.1 Inst 2 Identification Of Prosecution And Defendant
F 766.2 INSTRUCTIONS
F 766.2 Inst 1 (a & b) Jurors Not Required To Decide Penalty
F 766.2 Inst 2 (a & b) Eyewitness Identification: Death Penalty Should Not Be Imposed Where Guilt Is Based Solely On Testimony Of A Single Eyewitness
F 766.3 Death Penalty: Weighing Process—Meaning Of Life Without Parole
F 766.3 Inst 1 Curative Admonition During Voir Dire
F 766.3 Inst 2 Juror Misconceptions About Parole From Pre-1978 Cases Expressed During Voir Dire
F 766.3 Inst 3 (a & b) Commutation Of LWOP Sentence Is Rarely, If Ever, Granted
F 766.3 Inst 4 LWOP Means LWOP; Death Means Death
F 766.3 Inst 5 (a & b) “Death Is Worse Than LWOP”
F 766 NOTES
F 766 Note 1 Juries Should Assume That Death Sentence Will Be Carried Out
Return to Series 700 Table of Contents.
F 766.1 Titles And Identification Of Parties
F 766.1 Inst 1 Death Penalty: Weighing Process—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 766.1 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 766.2 Inst 1 (a & b) Jurors Not Required To Decide Penalty
Alternative a:
*Modify CC 766, paragraph 1, as follows [added language is underlined; deleted language is stricken]:
You have sole responsibility to decide, if you can, which penalty (the/each) defendant will receive.
Alternative b:
You have sole responsibility to attempt to decide which penalty (the/each) defendant will receive.
*Modify paragraph 3, sentence 1, as follows:
In attempting to reaching your decision, you must consider, take into account, and be guided by the aggravating and mitigating circumstances.
*Modify paragraph 4, sentence 1, as follows:
Each of you must decide for yourself whether aggravating or mitigating factors exist, do not exist or whether you can’t decide one way or the other.
*Modify paragraph 5, sentence 1, as follows:
Determine Consider which penalty is appropriate and justified by considering all the evidence and the totality of any aggravating and mitigating circumstances.
*Modify paragraph 5, sentence 2, as follows:
Even without mitigating circumstances, you may decide that the aggravating circumstances are not substantial enough to warrant death or that you are not sure enough to decide one way or the other.
*Modify paragraph 6, as follows:
[In attempting to making make your decision about penalty, you must assume that the penalty you impose, death or life without the possibility of parole, will be carried out.]
*Add at end of CC 766:
If you cannot agree on a sentence, send me a written note stating that you cannot agree and return all the verdict forms to me unsigned.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Improperly Coercive To Imply That Jurors “Must Decide” Penalty—It is improperly misleading and coercive to give jurors the false impression that they “must decide which penalty the defendant will receive.”
See FORECITE F 761.2 Inst 11.
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 13.15 [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 766.2 Inst 2 (a & b) Eyewitness Identification: Death Penalty Should Not Be Imposed Where Guilt Is Based Solely On Testimony Of A Single Eyewitness
*Add to CC 766:
Alternative a:
Any juror who voted to convict the defendant of [capital] murder based solely on the testimony of a single eyewitness may not vote for a sentence of death.
Alternative b:
A juror may not vote for a sentence of death if that juror voted to convict the defendant of [capital] murder based solely on the testimony of a single eyewitness.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Eyewitness Identification Is Not Sufficiently Reliable To Provide The Sole Basis For Execution—The 14-member Illinois Commission on Capital Punishment, appointed by Republican Governor George Ryan, released its list of 85 recommendations on April 15, 2002. The suggested changes resulted from the nation’s most thorough review of the death penalty. The reforms aim to protect innocent inmates from execution and to insure improved fairness for defendants facing capital charges. Among the 85 recommended reforms, the Commission called for:
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Videotaping of all interrogations of capital suspects conducted in a police facility.
-
Reducing the number of crimes eligible for a death sentence from 20 to five (multiple murder, murder of a police officer or firefighter, murder of an officer or inmate of a correctional institution, murder committed to obstruct the justice system, or torture murder).
-
Forbidding capital punishment in cases where the conviction is based solely on the testimony of a single eyewitness.
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Barring capital punishment in cases where the defendant is mentally retarded.
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Establishing a state-wide commission—comprised of the Attorney General, three prosecutors, and a retired judge
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To confirm a local state’s attorney’s decision to seek the death penalty.
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Intensifying the scrutiny of testimony provided by in-custody informants during a pre-trial hearing to determine the reliability of the testimony before it is used in a capital trial.
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Requiring a trial judge to concur with a jury’s determination that a death sentence is appropriate; or, if not, sentence the defendant to natural life.
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]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
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.
CALJIC NOTE: See FORECITE F 2.92 n18.
F 766.2 Inst 3 Law Gives No Preference As To Appropriate Penalty
*Add to CC 766:
At the commencement of your deliberations, let me make it clear that the law of the State of California expresses no preference as to which punishment is appropriate. That is for you to determine.
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 “correctly states the sentencing standard under California’s Death Penalty Law.” (People v. Samayoa (1997) 15 C4th 795, 852; see also People v. Earp (1999) 20 C4th 826, 903 [a correct statement of the sentencing standard under California law is that our law “expresses no preference as to the appropriate punishment”].) This is so because, unlike the determination of guilt, there is no burden of proof allocated to either party in the determination of penalty. In Samayoa, the Supreme Court rejected a defense argument that the above instruction prejudicially misled the jury as to the capital sentencing standard under California law, because the aggravating evidence must be so substantial in comparison to the mitigating evidence as to justify a verdict of death. Hence, defense counsel may not want to request the above instruction if it is thought that the jury will be misled by it. On the other hand, the instruction may be useful in emphasizing to the jurors that the decision to impose death must be a “normative and moral” decision (see People v. Holt (1997) 15 C4th 619, 684) and that the jurors cannot rely upon “the law” to make that decision for them.
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 Duty To Decide]
F 766.2 Inst 4 Life Verdict Permissible Even If Aggravating Factor Found
*Add to CC 766 as follows:
In weighing the aggravating and mitigating factors, you are not merely to count numbers on either side. You are instructed, rather, to weigh and consider the factors. You may return a verdict of life imprisonment without possibility of parole even though you should find the presence of one or more aggravating circumstances.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—People v. Sanders (1995) 11 C4th 475, 557 held that an instruction, such as the above, “significantly reduced the risk of juror misapprehension [by] expressly [telling] the jury that … a single factor could outweigh all other factors.”
However, People v. Jones (1998) 17 C4th 279, 314, held that an instruction that “one mitigating circumstance may be sufficient to support a decision that death is not the proper penalty” was duplicative and, therefore, properly rejected. This conclusion was based on the fact that the court instructed the jury to “return a verdict of life imprisonment without possibility of parole if it found that the aggravating factors did not substantially outweigh the mitigating factors, if it outweighed them at all.” However, the court failed to explain how the concept of a single mitigating factor justifying a verdict of life is encompassed within the language of the general instruction which was given. Moreover, the current version of CJ 8.88 does not contain the language relied upon by Jones. Instead, the instruction focuses upon the “totality of the aggravating circumstances” and “the totality of the mitigating circumstances.”
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 13.12 [A Mandatory Death Sentence Is Unconstitutional: The Jury Must Fairly Exercise Discretion]
F 766.2 Inst 5 Death Not Required Even If All Jurors Find That Aggravation Warrants Death
*Add to end CC 766, paragraph 5:
However, you are not required to return a judgment of death even if each of you are persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—Without the above instruction—which was substantially approved in People v. Smith (2005) 35 C4th 334, 371—the jurors may improperly conclude that death is mandatory if “the aggravating circumstances both outweigh the mitigating circumstances and are also so substantial in comparison to the mitigating circumstances that a sentence of death is appropriate and justified.” (CC 766, paragraph 5, last sentence.)
A death sentence imposed under this instruction would be unconstitutional if the jury believed that it must impose a sentence of death under such circumstances. (See Murtishaw v. Woodford (9th Cir. 2001) 255 F3d 926, 967-69.)
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 13.12 [A Mandatory Death Sentence Is Unconstitutional: The Jury Must Fairly Exercise Discretion]
F 766.2 Inst 6 Consequences Of Failure To Agree At Penalty: Jury Should Be Informed That Guilt And Special Circumstance Verdicts Will Not Be Affected
*Add to CC 766:
If you fail to reach a verdict as to penalty this will not affect the verdict you have already returned at the guilt trial. This means that even if you do not reach an agreement as to sentence, the only possible options for the case will be life without possibility of parole or death.
OR
If you cannot agree on a penalty, you will be discharged, and the court will conduct further proceedings as to the appropriate penalty. The minimum penalty that may be imposed upon such proceedings is life without possibility of parole.
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 purpose of this instruction is to avoid speculation by the jury that if they did not reach a verdict as to penalty, the defendant would receive a new trial on both guilt and penalty, thus raising the possibility that the defendant could be acquitted and set free.
In Jones v. U.S. (1999) 527 US 373 [144 LEd2d 370; 119 SCt 2090], the U.S. Supreme Court, in a five-to-four decision, held that the 8th Amendment does not require a jury to be instructed as to the consequences of a deadlocked jury for purposes of the Federal Death Penalty Statute (18 U.S.C. 1201(a)(2)). The court agreed with the Supreme Court of Virginia, which rejected a similar instruction in Justus v. Commonwealth (VA 1980) 266 SE2d 87, 92 [220 Va. 971] because this type of instruction “would [be] an open invitation for the jury to avoid its responsibility and to disagree.”
“Petitioner’s argument—which depends on the premise that the instructions and decision forms led the jury to believe that it did not have to recommend unanimously a lesser sentence—falls short of satisfying even the first requirement of the plain-error doctrine, for we cannot see that any error occurred.” (Jones, 119 SCt at 2102.)
However, Jones v. U.S. does not resolve the question of whether the jury should be informed that the guilt and special circumstance verdicts will not be affected even if they do not reach a verdict as to penalty. This concern was not at issue in Jones, which involved the issue of whether the jury properly understood that it was required to attempt to reach a unanimous verdict as to a lesser sentence if it could not reach a verdict as to the greater sentence.
By promoting a reliable, non-arbitrary, and individualized sentencing determination and by protecting against jury consideration of matters which are constitutionally irrelevant, constitutionally protected, arbitrary, or discriminatory, 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., Dawson v. Delaware (1992) 503 US 159 [117 LEd2d 309; 112 SCt 1093]; 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].)
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 Duty To Decide]
F 766 Notes
F 766 Note 1 Juries Should Assume That Death Sentence Will Be Carried Out
CAVEAT: This instruction (CC 766, ¶ 6)—which is essentially a cautionary/limiting instruction—”may unnecessarily raise questions in the jurors’ minds.” (People v. Kipp (1998) 18 C4th 349, 378.) Hence, the ultimate decision as to whether or not to so instruct the jury should be made by the defendant. (See PG X(E)(19)(3).) If trial counsel determines that such an instruction is strategically unwise, counsel should object and not request the instruction. Conversely, if the instruction is given over objection or without a request by the defense, an issue as to its propriety may be a potential question on appeal.
CALJIC NOTE: See FORECITE F 8.84b.
F 766.3 Death Penalty: Weighing Process—Meaning Of Life Without Parole
F 766.3 Inst 1 Curative Admonition During Voir Dire
*Add to CC 766:
Statements by some jurors during jury selection showed an awareness of news reports concerning other cases or sentences of death which were not carried out for legal reasons or where persons sentenced to life imprisonment may have been considered for parole.
Under the 1978 death penalty law, which governs this case, the only possible penalties are death or life imprisonment without the possibility of parole.
In the past, other cases were decided under other laws which are no longer in effect.
You must not consider other cases or news reports or speculate about actions by other authorities in arriving at a penalty verdict in this case. Those are matters that must not affect your verdict.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Basis For Instruction—See People v. Farnam (2002) 28 C4th 107, 191.
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 13.14 [Fair And Reliable Sentencing Determination]
F 766.3 Inst 2 Juror Misconceptions About Parole From Pre-1978 Cases Expressed During Voir Dire
*Add to CC 766:
Statements by some jurors during jury selections showed an awareness of news reports concerning other cases or sentences of death which were not carried out for legal reasons or where persons sentenced to life imprisonment may have been considered for parole.
Under the 1978 death penalty law, which governs this case, the only possible penalties are death or life imprisonment without the possibility of parole.
In the past, other cases were decided under other laws which are no longer in effect.
You must not consider other cases or news reports or speculate about actions by other authorities in arriving at a penalty verdict in this case. Those are matters that must not affect your verdict.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Basis For Instruction—See People v. Farnam (2002) 28 C4th 107, 191 [no error in giving instruction since it addressed a misconception about the effect of a LWOP sentence expressed by some jurors during voir dire].
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 13.14 [Fair And Reliable Sentencing Determination]
CALJIC NOTE: See FORECITE F 8.84c.
F 766.3 Inst 3 (a & b) Commutation Of LWOP Sentence Is Rarely, If Ever, Granted
*Add to CC 766:
Alternative a:
A sentence of death or life imprisonment without parole may only be commuted by the California Governor, a politically elected official[.][,] [with the approval of at least four of the seven Justices of the California Supreme Court, who must also be approved by the voters. Therefore, while it is theoretically possible for a life sentence without parole to be commuted, it has never yet happened, and I don’t expect it to ever happen. In any event, no juror may consider such speculative matters in deciding which penalty to impose. You must approach the penalty deliberations under the assumption that which ever penalty you choose will be imposed for sure.]
[Source: Adapted from instruction given in People v. Martinez (2003) 31 C4th 673, which “adequately explained the theoretical possibility of the commutation of a death or life without parole sentence.”]
Alternative b:
Some jurors may believe a life prisoner will still be able to obtain release on parole sometime in the future. In unusual cases, future action by the judiciary [and] [or] the Governor may permit the defendant to obtain parole. Such possibilities apply whether the jury imposes a sentence of death or of life without the possibility of parole. However, you should assume such future actors will follow the law and that the sentence you reach will be carried out. Do not speculate on any other possibilities.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
The Need For Instruction—Empirical studies establish that a substantial majority (almost 25%) of death-qualified jurors erroneously believe that life without parole will allow the parole or judicial system to release the defendant in less than 10 years due to overcrowding and other factors. (See CACJ Forum (1994) Vol. 21, No. 2, pp. 42-45; see also, Haney, Santag and Costanzo, “Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence of Death” 50 Journal of Social Sciences No. 2 (Summer 1994) [“Four of five death juries cited as one of their reasons for returning a death verdict, the belief that a sentence of life without parole did not really mean that the defendant would never be released from prison….”].) Moreover, a juror’s belief as to the meaning of the sentences is the single most important reason for voting for a particular verdict. (CACJ Forum Vol. 21 at p. 45.)
“As this court has explained in prior cases, because of the possibility of appellate reversal or gubernatorial commutation or pardon, it would be inaccurate and therefore erroneous to instruct the jury that if it returns a death verdict, the sentence of death will inexorably be carried out. [Citations.] Although it is not improper to instruct the jury to assume that whatever penalty it selects will be carried out [citation], an instruction phrased in this qualified language may unnecessarily raise questions in the jurors’ minds. Therefore, we have not required that trial courts so instruct the jury in every penalty phase. The trial court may give the instruction at the defendant’s request and should give this or a comparable instruction if there is a reason to believe the jury may have some concerns or misunderstandings in this regard. [Citations.]” (People v. Kipp (1998) 18 C4th 349, 378-379; see also Kelly v. South Carolina (2002) 534 US 246 [151 LEd2d 670; 122 SCt 726] [jury misunderstanding as to parole eligibility is serious error in most cases because jury is likely to infer future dangerousness from evidence of defendant’s violent acts even if future dangerousness is not directly argued by the prosecution]; People v. Yeoman (2003) 31 C4th 93, 163 [“jurors cannot always be effectively precluded from discussing … the possibility of parole…”].)
People v. Arias (1996) 13 C4th 172-173, held that nothing in Simmons (Simmons v. South Carolina (1994) 512 US 154 [129 LEd2d 133; 114 SCt 2187) requires that the jury be instructed beyond the fact that its choice is between death and life without possibility of parole. The court also held that Simmons does not “suggest the jury must be instructed in a manner that affirmatively conceals the possibility of commutation or pardon.” (Arias, 13 C4th at 173.)
However, because Simmons teaches that the jury’s accurate understanding of the sentencing alternatives is compelled by federal due process principles and the 8th Amendment, instruction as to the meaning of LWOP should be given upon request. (See also Shafer v. South Carolina (2001) 532 US 36 [149 LEd2d 178; 121 SCt 1263]; Hamilton v. Vasquez (9th Cir. 1994) 17 F3d 1149, 1160-62 [conviction reversed when confusing commutation instruction given over objection by defense counsel]; McLain v. Calderon (9th Cir. 1998) 134 F3d 1383); California v. Ramos (1983) 463 US 992 [77 LEd2d 1171; 103 SCt 3446]; Coleman v. Calderon (9th Cir. 1998) 150 F3d 1105 [a commutation instruction is unconstitutional when it is inaccurate]; Coleman v. Calderon (9th Cir. 2000) 210 F3d 1047, 1051 [trial court’s jury instruction regarding the governor’s power to commute sentences was misleading and constitutionally infirm, and had a “substantial injurious effect” on the jury’s verdict, warranting reversal of the penalty phase]; but see People v. Prieto (2003) 30 C4th 226 [Shafer is inapposite because California jurors are told life sentence is without parole]; People v. Ashmus (1991) 54 C3d 932, 995; People v. Roybal (1998) 19 C4th 481, 524 [trial court correctly refused instruction that defendant “will never be released on parole … [and that the jury must] assume … defendant will not be released from prison ever”]; Ramdass v. Angelone (2000) 530 US 156 [147 LEd2d 125; 120 SCt 2113, 2119] [defendant not entitled to jury instruction on parole ineligibility as required by Simmons v. South Carolina (1994) 512 US 154 [129 LEd2d 133; 114 SCt 2187], because the defendant’s third conviction, which would have made him ineligible for parole, was not formally entered into the record by the trial judge until after the capital case ended].)
In People v. Hart (1999) 20 C4th 546, 656, the jury sent a note to the court at the commencement of the penalty trial which asked: “Does life in prison without the possibility of parole mean he will never get out under any circumstances?” In responding to this inquiry, the court did not inform the jury that because Hart had a prior conviction, the governor’s commutation power was far more limited than was suggested by the instruction which the court gave to the jury. However, the Supreme Court held that because the jury was generally instructed not to consider the possibility of commutation, “there is no reasonable possibility that the incompleteness of the trial court’s comments affected the result.” (See also People v. Snow (2003) 30 C4th 43, 124 [jury was told that the alternative to death was life imprisonment “without possibility of parole,” and that that phrase should be understood in its ordinary sense; instructions were sufficient to inform the jury that defendant would not be eligible for parole].)
In any event, Hart recognized that the instruction was incomplete and that a more complete instruction may be appropriate.
People v. Samuels (2005) 36 C4th 96, 141, Werdegar, J., concurring [“because some jurors may … believe a life prisoner will still be able to obtain release on parole sometime in the future … [T]he trial court should respond with a short statement explaining that, in unusual cases, future action by the judiciary or the Governor may permit the defendant to obtain parole, that such possibilities apply whether the jury imposes a sentence of death or of life without the possibility of parole, that the jury should assume such future actors will follow the law, and that the jury should not speculate on such possibilities and should assume the sentence it reaches will be carried out”].
Note: “Or” vs. “And” Both The California Supreme Court And The Governor Must Recommend Clemency Before It May Be Granted To A Twice-Convicted Felon. (Cal. Const. Art. V, §8.)
(See FORECITE F 766.3 Inst 2.)
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 13.14 [Fair And Reliable Sentencing Determination]
PRACTICE NOTES
Evidence And/Or Instruction That No LWOP Prisoner Has Been Released. It is safe to say that no person sentenced to LWOP, since reinstatement of the death penalty in 1978, has been paroled. Such a release would surely be the subject of extensive media attention should it ever occur. It should be possible to obtain records to support this proposition.
However, it is less clear as to how many LWOP prisoners, if any, have ever been released. LWOP was imposed upon habitual criminals per former PC 644 years ago. (See People v. Vaile (35) 2 C2d 441, 445 [42 P2d 321].) It has also been imposed by gubernatorial commutation of death sentences. (See Green v. Gordon (52) 39 C2d 230 [246 P2d 38]; for kidnapping for robbery without bodily harm (PC 209); and for assault with force likely to cause great bodily injury (PC 4500.)
Strategic Considerations. A complete explanation of the meaning of LWOP would seem to require discussion of the Governor’s commutation powers and the Legislature’s power to revise the sentencing statute. So far the courts have been unwilling to authorize an instruction that LWOP means the defendant will never be released. (See People v. Cox (91) 53 C3d 618, 680-81 [280 CR 692].) Since most instructions which fail to mention the Governor’s commutation powers would at least imply that the defendant will never be released, it may be necessary for counsel to agree that the commutation power be addressed in the instruction. The only way a sentence of life without parole or a sentence of death may ever be reduced is by an act of Executive Clemency by the Governor of California [upon recommendation of a majority of the California Supreme Court]. For example, in People v. Chessman (51) 38 C2d 166, 189-90 [238 P2d 1001], it was held that the jury was properly instructed that release from an LWOP sentence could occur by gubernatorial pardon or commutation or by legislative revision of the sentencing statute. Obviously the decision of whether to agree to such an instruction requires consideration of the potential prejudicial effect of referring to the Governor’s commutation power (see People v. Cudjo (93) 6 C4th 585, 630-33 [25 CR2d 390]) against the countervailing prejudice accruing from the jurors’ misunderstanding about the power of the courts and/or parole authorities to release the defendant after serving only 10 to 20 years. Given the apparent pervasiveness of this misunderstanding and its substantial impact on the verdict, this matter warrants close attention. Note also that this issue should be considered in light of how counsel will argue this point to the jury. It may be preferable to allow jury consideration in order to argue that the chance of Executive Clemency is remote. (See below.)
Whether Jury May Consider Likelihood of Executive Clemency. People v. Ramos (84) 37 C3d 136, 159 fn 12 [207 CR 800], holds that the jury may not consider the possibility of Executive Clemency. This could justify instructing the jury, “You must not consider the possibility of Executive Clemency in determining the appropriate sentence.” However, it could be argued under the logic of Simmons, which suggests that the jury should have a full and accurate understanding of the sentencing alternatives, that the jury should consider the unlikelihood of Executive Clemency. (See Gallego v. McDaniel (9th Cir. 1997) 124 F3d 1065 [failure of commutation instruction to explain the remoteness of executive clemency for a life sentence was constitutional error].
Argument As To Unlikelihood Of Executive Clemency. Counsel may wish to argue that Simmons allows the jury to consider, the likelihood or unlikelihood of Executive Clemency in order to permit argument to the jury on this point. The jurors will likely be aware of the severe political consequences which attach to the release of any violent offender, and on this basis they may be brought to understand just how remote Executive Clemency would be in a special circumstance first degree murder case. [Whether evidence could or should be brought on the likelihood of Executive Clemency is another matter which may warrant consideration.]
Requirement Of Supreme Court Recommendation. The Governor’s power to grant executive clemency and the requirement of Supreme Court recommendation for a twice convicted felon is set forth in Art. V §8 of the California Constitution. (See Coleman v. Calderon UNPUBLISHED (NDCAL 1997, No. C 89-1906 RMW) [conviction overturned because commutation instruction failed to inform jury that governor could not commute the sentence without consulting the Board of Prison Terms and obtaining the approval of four justices of the California Supreme Court; instruction was confusing and misleading by informing jury about commutation, and then inconsistently, directing jurors not to consider what it had just been told].) [See Brief Bank # B-727 for the Calderon briefing on this issue.]
RESEARCH NOTE: “Correcting Deadly Confusion: Responding to Jury Inquiries in Capital Cases,” by Stephen P. Garvey, Sheri Lynn Johnson and Paul Marcus (January 2002):
http://www4.law.cornell.edu/working-papers/open/garvey/ weeks.aspxl
CALJIC NOTE: See FORECITE F 8.84a.
F 766.3 Inst 4 LWOP Means LWOP; Death Means Death
*Add to CC 766:
A sentence of life without possibility of parole means that the defendant will remain in state prison for the rest of (his/her) life and will not be paroled at anytime. A sentence of death means that (he/she) will be executed in state prison.
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. Benavides (2005) 35 C4th 69, 114 [instruction not misleading and did not invite speculation].
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 13.14 [Fair And Reliable Sentencing Determination]
F 766.3 Inst 5 (a & b) “Death Is Worse Than LWOP”
*Add to CC 766:
Alternative a:
Under the law and regardless of your personal belief as to what is harder on somebody or what is more severe or what is the tougher penalty, the death penalty is the more severe penalty. Life in prison is not as severe as the death penalty. That is the law, and that is the law you have to follow. You can’t inject your own belief as to what you think is tougher or not.
[Source: People v. Harris (2005) 37 C4th 310, 361 [trial court did not err in giving the above instruction].]
Alternative b:
Some of you stated during voir dire that you believed life in prison without parole is a worse punishment then death.
I admonish you that for the purposes of this trial you must assume, as a matter of law, that death is the more severe punishment.
You are instructed that death is qualitatively different from all other punishments and is the most severe penalty the law can impose. Society’s next more severe punishment is life in prison without the possibility of parole. It would be a violation of your duty as a juror to vote for death under the assumption that you were voting for the least severe of the two available penalties.
[Source: adapted from People v. Murtishaw (1989) 48 C3d 1001, 1027; People v. Hernandez (1988) 47 C3d 315, 362-63.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Need For Instruction—The Supreme Court in People v. Ochoa (1998) 19 C4th 353, 478, assumed that death is the worst punishment “as a matter of law.” However, the court also cited People v. Bloom (1989) 48 C3d 1194, 1223 [“a jury might well conclude that death was ‘too good’ for the defendant and that life imprisonment with no hope of parole would be the more severe and more appropriate punishment”]. This observation militates in favor of specifically instructing the jury that death is the greater punishment. Otherwise, the jury may use the precise reasoning which Bloom identified, to turn the entire death penalty trial on its head and impose death on the defendant because it is viewed by the jury as the less severe punishment.
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 13.14 [Fair And Reliable Sentencing Determination]
