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F 8.85(c) n1 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 (93) 4 C4th 1233, 1337 [18 CR2d 796].)
F 8.85(c) n2 Defense Theory That Prior Criminal Activity Or Convictions Are Mitigating.
(See FORECITE F 8.85(b) n11.)
F 8.85(c) Inst 1
Absence Of Prior Felony Conviction As Mitigation
(PC 190.3(c))
*Modify CALJIC 8.85(c) to provide as follows:
The absence of any felony convictions prior to the crime[s] for which the defendant has been tried in the present proceedings is a mitigating factor.
Points and Authorities
[See F 8.85(b) Inst 1, ante.]
F 8.85(c) Inst 2
Prior Felony Conviction: Clarification Of The Term “Prior”
*Modify CALJIC 8.85(c) to provide as follows:
The presence or absence of any felony conviction committed prior to ____________ (insert date of capital offense) other than the crimes for which the defendant has been tried in the present proceedings.
Points and Authorities
It is beyond dispute that any prior felony conviction under 190.3(c) must have been committed prior to the commission of the capital offense for which the defendant is being tried. CJ 8.85(c) refers only to prior felony convictions without making it clear that the conviction must be prior to the felony offense. Accordingly, when appropriate, 8.85(c) should be modified as set forth above.
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 (92) 503 US 159 [117 LEd2d 309; 112 SCt 1093]; Sochor v. Florida (92) 504 US 527 [119 LEd2d 326; 112 SCt 2114]; Penry v. Lynaugh (89) 492 US 302, 318 [106 LEd2d 256; 109 SCt 2934]; Clemons v. Mississippi (90) 494 US 738 [108 LEd2d 725; 110 SCt 1441]; McCleskey v. Kemp (87) 481 US 279 [95 LEd2d 262; 107 SCt 1756.)