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F 8.85(j) n1 Minor Participation By Accomplice As Mitigation Only.
In People v. Proctor (92) 4 C4th 499, 553 [15 CR2d 340] the court noted that it had held many times that factor (j) “should not be considered as aggravating.” However, the court put in doubt the continuing validity of these cases by asserting that they are in “apparent conflict” with People v. Howard (92) 1 C4th 1132, 1195 [5 CR2d 268]. (Ibid.) As Justice Kennard observed in her dissent, “the opinion in Howard provided no reasoning or analysis to support the one sentence in that opinion that is arguably inconsistent with this otherwise broken line of authority, nor did it discuss or even acknowledge any of the contrary decisions. . . . The suggestion in Howard that factor (j) can be aggravating carries no persuasive force and should therefore be disapproved.” (Proctor 4 C4th at 559.) (Dis. Opn. of Kennard, J.)
F 8.85(j) Inst 1
Consideration of Leniency Received By Accomplice
You may consider the fact that defendant’s accomplice[s] received a more lenient sentence as a mitigating factor.
Points and Authorities
Despite the California Supreme Court’s rejection of instruction on accomplice leniency (e.g., People v. Gallego (90) 52 C3d 115, 201 [276 CR 679]; see also People v. Bemore (2000) 22 C4th 809, 857-858 [94 CR2d 840] [sentence received by accomplice is not constitutionally or statutorily relevant as factor in mitigation]) the United States Supreme Court has suggested that this factor is valid mitigation. In Parker v. Dugger (91) 498 US 308 [112 LEd2d 812; 111 SCt 731], the United States Supreme Court concluded that there was “no question” the defendant had presented valid nonstatutory mitigating evidence in a case in which the defendant’s attorney “emphasized to the jury that none of Parker’s accomplices received a death sentence (and the defendant’s accomplice), who admitted shooting (the victim), had been allowed to plead guilty to second degree murder.” (112 LEd2d at 822.) The Court commented: [E]very court to have reviewed the record here has determined that the evidence supported a finding of nonstatutory mitigating circumstances….We agree. (Id. at 823; but see People v. McDermott (2002) 28 C4th 946 [123 CR2d 654] [rejecting Parker v. Dugger[(91) 498 US 308 [112 LEd2d 812; 111 SCt 731]] argument].)
Accordingly, the 8th and 14th Amendment rights to jury consideration of any valid mitigation requires the above instruction.
By promoting a reliable, non-arbitrary, and individualized sentencing determination, 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., 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].)
