All posts by Julie Anne Ines

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Does Robbery Justify the Use of Deadly Force in Self Defense?

PC 197 permits use of deadly force to prevent a felony only if the felony is “forcible and atrocious.” (People v. Morales (2021) 69 Cal.App.5th 978, 991.)

Forcible and atrocious crimes are generally those crimes whose character and manner reasonably create a fear of death or serious bodily harm. (People v. Ceballos (1974) 12 Cal.3d 470, 479.) In Ceballos, the court identified murder, mayhem, rape, and robbery as examples of forcible and atrocious crimes. (Id. at p. 478.) However, as noted in People v. Morales, supra, 69 Cal.App.5th at 992–993, Ceballos involved a burglary, not a robbery, and contemplated the traditional common law robbery, which, unlike the modern understanding of robbery in California, did not include situations where very little force or threat of force is involved. Morales concluded that “[a] robbery therefore cannot trigger the right to use deadly force in self-defense unless the circumstances of the robbery gave rise to a reasonable belief that the victim would suffer great bodily injury or death.” (Id. at 992.)

 

Accordingly, the CALCRIM committee has proposed a revision of CC 505 to address “noninherently forcible and atrocious” crimes such as robbery by limiting their applicability to “circumstances in which [the defendant] reasonably believed that (he/she) would suffer great bodily injury or death.”

 

See https://www.courts.ca.gov/documents/calcrim22-01.pdf

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Revised Kill Zone Instruction Is Still Defective

People v. Canizales (2019) 7 Cal.5th 591, 607-09 concluded that CC 600 [September 2019 version] was deficient and recommended revisions of that instruction. (See CSC Calls For Revision Of Kill Zone Instruction (CC 600).)

Canizales explained that the instruction was flawed because it did not adequately define the term “kill zone” and failed to direct the jury to consider the circumstances of the attack in determining whether the defendant’s attempt to kill everyone around the primary target was undertaken as a mean of killing the primary target. (Ibid.)

CC 600 was heavily revised in light of Canizales, and it is now considerably longer and more complex. (CC 600, Revised April 2020.) But even this revised version of the instruction largely retains a defect:

 

“In articulating the elements of the kill zone theory, the revised instruction does not require the jury to find that the defendant intended to kill everyone in the area around the primary target in order to ensure the death of the primary target. Instead, the revised version provides: ‘A person may intend to kill a primary target and also [a] secondary target[s] within a zone of fatal harm or ‘kill zone.’ A ‘kill zone’ is an area in which the defendant used lethal force that was designed and intended to kill everyone in the area around the primary target.’ {Quoting CC 600.]” (In re Sambrano (2022) 79 Cal.App.5th 724, [pp 8-11]; Emphasis by Sambrano.)

Canizales held that unless the defendant intended to kill everyone in the area around the primary target in order to effectuate the killing of the primary target, the kill zone theory does not apply. (Canizales, supra, 7 Cal.5th at 607 [a kill zone is “an area in which the defendant intended to kill everyone present to ensure the primary target’s death”].)

However,

The revised instruction’s only allusion to that requirement appears in the last sentence of the instruction, which tells the jury, “If you have a reasonable doubt whether the defendant . . . intended to kill [the primary target] by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of [the other people in the zone].” (CALCRIM No. 600.) But jurors might well be confused when they discover in the final sentence that a reasonable doubt about whether the defendant intended to kill the primary target by killing everyone in the kill zone requires them to find the defendant not guilty, given that nowhere else does the instruction say an intent to kill the primary target by killing everyone in the kill zone is required. (Sambrano, supra.)

Furthermore, Sambrano questioned whether “it would ever be prudent” to give a kill-zone instruction:

Given the Supreme Court’s words of caution, the apparently ongoing difficulty in crafting an error-free instruction on the kill zone theory, and the absence of any requirement to give a kill zone instruction, it is not clear why it would ever be prudent to give such an instruction. It appears easy to commit error by instructing the jury on the kill zone theory, but it is literally impossible to err by declining to do so.

In re Sambrano (June 9, 2022, E078147) [pp. 8-11]; but see Reviewing Court Holds That Judge Correctly Instructed Jury With “Kill Zone” Theory

And,

If a court deems it appropriate to instruct a jury on the kill zone theory, the instruction could arguably be reduced to a single sentence (and without use of the term “kill zone”) along something like the following lines: If, having considered all the circumstances of the attack, you find beyond a reasonable doubt that the defendant intended to kill <insert name of primary target> by killing everyone in the area in which <insert name of primary target> was located, then you may infer, but are not required to infer, that the defendant intended to kill everyone in that area.

(In re Sambrano, supra at _____, fn. 3 [pp. 11 fn. 3].)

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Defendant’s Previous Conviction: Cautionary Instruction

It is beyond dispute that it is improper and prejudicial to permit the jurors to consider the fact that the defendant was previously tried and convicted for the same allegations. For example, in People v. Kessler (1963) 221 Cal.App.2d 187, 191, the court concluded that the unnecessary calling and identifying of a probation officer as a witness as an indirect method of using and referring to defendant’s former trial: “Unquestionably…denied [defendant] a fair trial.”

 

Juror exposure to information of the adverse result of a previous trial creates a presumption that prejudice had been generated by such conduct. (See Holmgren v. U.S. (1910) 217 US 509, 522 [30 SCt 588; 54 LEd2d 861]; see also Fullwood v. Lee (4th Cir. 2002) 290 F3d 663 [jury awareness that previous penalty verdict had been reversed on a “technicality” provided the basis for investigation of a potential jury misconduct claim].) Hence, every effort should be made to prevent the jury from learning about the prior trial and/or verdict.

 

Juror consideration of extraneous evidence regarding the result of a prior trial constitutes consideration of “testimonial assertions of persons whom defendant obviously had no opportunity to question.” (People v. Modesto (1967) 66 Cal.2d 695, 715.) In such a case the prior jurors are “enlisted as highly persuasive witnesses for the prosecution, witnesses whom the defendant could neither confront nor cross-examine.” (Ibid.) Hence, juror consideration of such extraneous evidence violates the defendant’s state (Article I §§15 and 16) and federal (6th and 14th Amendments) constitutional rights to confrontation. (See Pointer v. Texas (1965) 380 US 400; see also U.S. v. Bagley (1985) 473 US 667; Davis v. Alaska (1974) 415 US 308; Smith v. Illinois (1968) 390 US 129; Brookhart v. Janis (1966) 384 US 1.)

Reference to a former verdict is also prohibited by Penal Code 1180. (See People v. Peckham (1967) 249 Cal.App.2d 941, 946; see also People v. Burgener (2003) 29 C4th 833 [“proper solution” to potential prejudice from a previous trial is to “exclude any reference to the prior verdict”].)

Compare People v. Bloom (Apr. 21, 2022, S095223) [pp. 23-24]:

[Bloom] contends that the prosecution improperly asked questions that either obliquely referred to, or solicited responses that referred to, Bloom’s prior incarceration. But contrary to Bloom’s arguments, none of these references violated either Penal Code section 1180, which forbids references to former verdicts or findings, or his due process rights. None of the references to witnesses’ prior testimony directly revealed the verdict reached in Bloom’s prior trial. Nor did they encourage the jury to draw inferences that risked “implying prior criminality,” thus “prejudicing] defendant in the eyes of the jury.” (People v. Kessler (1963) 221 Cal.App.2d 187, 192.) It is true that the references would have led jurors to assume Bloom had previously been tried and that he had been detained before the retrial, but as both sides in the case acknowledged, that information was inevitably going to come out and on its own raised no unacceptable risk of prejudicing Bloom in the eyes of the jury.

 

SAMPLE INSTRUCTION # 1:

You may hear reference to a previous trial of this case. A previous trial did occur. But the defendant and the government are entitled to have you decide this case entirely on the evidence that has come before you in this trial. You should not consider the fact of a previous trial in any way when you decide whether the government has proven, beyond a reasonable doubt, that the defendant committed the crime.

[Source: 1st CIRCUIT PATTERN JURY INSTRUCTIONS – CRIMINAL 1.03 [Previous Trial] (1998).]

SAMPLE INSTRUCTION # 2:

You have heard evidence that the defendant has been tried before. Keep in mind, however, that you must decide this case solely on the evidence presented to you in this trial. You are not to consider the fact of a previous trial in deciding this case.

[Source: 9th CIRCUIT MODEL JURY INSTRUCTIONS – CRIMINAL 2.14 [Defendant’s Previous Trial] (2000).]

SAMPLE INSTRUCTION # 3:

During the course of this trial, you have heard that the defendant was on trial before. That is true. The defendant and the government are entitled, however, to have you decide this case entirely on the evidence that has come before you in this trial. You should not consider the fact of a previous trial in any way when you decide whether the government has proved beyond a reasonable doubt, that the defendant committed the crime.

[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 14 [Defendant’s Previous Trial: Jury Not To Consider] (1988).]

SAMPLE INSTRUCTION # 4:

The defendant has been tried before. However, this fact must not enter into or influence your deliberations in any way.

[Cf. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 1.06 [Retrial of Case] (Bar Association of the District of Columbia, 4th ed. 1993).]

SAMPLE INSTRUCTION # 5:

The case has been tried before. It has been submitted to you in this second trial as a result of proper legal procedures. The fact that there has been a previous trial, and the legal reasons why the case is being tried again, have no bearing whatever upon the issues presented to you or upon the decision you face.

To you this is a new case, and you must treat and consider it as such. Do not speculate about the previous trial, nor allow it to affect your consideration of this case.

[Cf. Leventhal, Charges to the Jury and Requests to Charge in a Criminal Case (New York) 4:71 [General Instructions-Retrial] (West, 1999).]

SAMPLE INSTRUCTION # 6:

You have heard evidence that there was a previous trial of the defendant(s) for the crime(s) charged here. However, you must decide this case solely on the evidence presented to you in this trial.

Do not consider the fact of a previous trial in any way when you decide if the prosecution has proved the defendant guilty beyond a reasonable doubt.

[Cf. SOUTH DAKOTA PATTERN JURY INSTRUCTIONS – CRIMINAL SDCL 4-1-6 (State Bar of South Dakota, 2000).]

SAMPLE INSTRUCTION # 7:

You have heard references to a previous trial of this case. Do not in any manner consider this fact or speculate as to the reason why the case is being tried again.

[Cf. CRIMINAL JURY INSTRUCTIONS – NEW YORK, CJI 5.40 [Reference From Prior Trials] (The New York Office of Court Administration, 1983).]

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CC 1141 Distributing Matter Showing Sexual Conduct by Minor: Commercial Benefit Defined

People v. Wimer (2022) 74 Cal.App.5th 113, 134-35 concluded that the trial court misstated the law when it instructed the jury on the fourth element of [PC 311.2(b).

Element four of CALCRIM-1141-A stated: “When the defendant acted, he intended to distribute, show, or exchange the matter to someone else for money or other commercial benefit.” The trial court equated “commercial benefit” with “the trade of obscene matter through the internet” and later responded to a jury question by stating: “The dissemination of obscene matter, as defined, on the internet with the intent to trade or induce others to trade the pornographic material is a ‘commercial purpose.’ To disseminate such material on the internet without such intent to trade or induce others to trade is ‘non commercial.’ ” (Italics added.) The court’s instructions to the jury made clear that the element of commercial consideration required nothing more than an intent to trade or induce others to trade in obscene matter over the Internet. As we have explained, that is an erroneous construction of [PC 311.2(b).] Commercial consideration requires proof that when the defendant disseminated the obscene matter, he intended to receive money or some other form of recompense as part of a commercial or profitmaking venture.

Accordingly, a definition such as the following should be added to CC 1141:

Commercial benefit means receipt of, or intent to receive, financial value or       compensation.

 

* The CALCRIM committee has recommended adding such a definition in September 2022. See https://www.courts.ca.gov/documents/calcrim22-01.pdf

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Substitution of Alternate Juror After Partial Verdict

When an alternate juror is substituted during deliberations, CALCRIM 3575 should be given instructing the jurors to disregard the earlier deliberations. (See People v. Cain (1995) 10 C4th 1, 64-65.) However, a special problem is presented when the substitution occurs after a partial verdict has been rendered. In fact, it has been suggested that the problem is so difficult that substitution should not be permitted. (See People v. Aikens (1983) 207 CA3d 209, 215-20, dissenting opn, [danger of undue influence is so high that no further deliberation should occur].)

In People v. Thomas (1990) 218 CA3d 1477, 1488, the court suggested that the predecessor of CALCRIM 3575, CJ 17.51, should be supplemented with a “strong admonition” to both the regular jurors and alternates that they are to “consider the facts unconstrained by any prior determination.” (See also, People v. Aikens, supra. at 211-215, majority opn, [CJ 17.51 good enough under the circumstances]; State v. Miley (OH 1992) 603 NE2d 1070, 1076 [substitution of a juror, after a partial verdict has been returned, for the purpose of continuing deliberations in order to reach a final verdict on the remaining count was plain error in violation of federal constitutional right to trial by jury].)

In light of these special considerations, a supplement to CALCRIM 3575 should be given when the substitution occurs after a partial verdict.

 

Sample Instruction [Add at end of CC 3575]:

 

You must also disregard the prior verdict(s) and deliberations upon which they were founded in deliberating upon the remaining unresolved verdict(s).

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Courtroom Restraint of Defendant May Create “Racialized Presumption of Dangerousness and Guilt”

Ervine Davenport was shackled without case-specific justification at his murder trial in state court in Kalamazoo, Michigan. The Michigan Supreme Court found a violation of Deck v. Missouri (2005) 544 U.S. 622 and remanded for an evidentiary hearing on prejudice under Chapman v. California (1967) 386 U.S. 18.

 

“On remand, the trial court conducted an evidentiary hearing in which it heard from all 12 jurors. Five remembered seeing Davenport’s restraints; the remaining seven did not. All 12 testified that Davenport’s shackles did not enter into their deliberations or influence their unanimous verdict. Based on this evidence, the trial court found that the State had carried its burden to show harmlessness beyond a reasonable doubt.” The Michigan Court of Appeals affirmed, and the MSC denied review.

 

With the state conceding error and contesting only prejudice, the 6th Circuit reversed on habeas corpus in reliance, inter alia, on a concern that the shackling of Davenport raised a “racialized presumption of dangerousness and guilt.”

 

“If a practice ‘involves such a probability that prejudice will result that it is deemed inherently lacking in due process,’ like shackling a defendant without case-specific reasons, ‘little stock need be placed in jurors’ claims to the contrary. Even though a practice may be inherently prejudicial, jurors will not necessarily be fully conscious of the effect it will have on their attitude toward the accused.’ [Quoting Holbrook.] Since Holbrook was decided, a voluminous body of social-science research has demonstrated support for Holbrook’s conclusion. See generally Jennifer L. Eberhardt, Biased: Uncovering the Hidden Prejudice that Shapes What We See, Think, and Do (2019). This research suggests that the shackling of Davenport, a 6’5” tall Black man weighing approximately 300 pounds, would tend to ‘prime’ racialized presumptions of dangerousness and guilt. See, e.g., Mark W. Bennett & Victoria C. Plaut, Looking Criminal and the Presumption of Dangerousness: Afrocentric Facial Features, Skin Tone, and Criminal Justice, 51 U.C. Davis L. Rev. 745, 785 (2018) (‘Repeated studies indicate Blacks with darker skin tones and stronger Afrocentric facial features “activate automatic associations with negative behavioral stereotypes of Black men, such as aggression, violence, and criminality.”’ (Citations omitted)); Justin D. Levinson et al., Guilty by Implicit Racial Bias: The Guilty/Not Guilty Implicit Association Test, 8 Ohio St. J. Crim. L. 187, 207 (2010) (‘[W]e found that participants held implicit associations between Black and Guilty…. [T]hese implicit associations were meaningful – they predicted judgments of the probative value of evidence.’)” [Footnote integrated into text.]

 

(Davenport v. MacLaren (6th Cir. 2020) 964 F.3d 448, 466 and footnote 13.)

 

Although the Davenport case was ultimately reversed by the USSC (Brown v. Davenport, 142 S.Ct. ___ [2022 WL 1177498] (April 21, 2022), the concerns identified by the 6th circuit may enter into counsel’s decision as to whether to request CC 204 or an alternative such as those suggested in FORECITE F 204 Inst 2 (a-g) Cautionary Instruction Regarding Physical Restraints.

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Death Penalty: Sympathy for Defendant’s Family — Instruction and Argument

CC 763 includes the following optional clarifications regarding the jurors’ consideration of sympathy for the defendant’s family in a death penalty case.

[Although you may consider sympathy or compassion for the defendant,
you may not let sympathy for the defendant’s family influence your
decision. [However, you may consider evidence about the impact the
defendant’s execution would have on (his/her) family if that evidence
demonstrates some positive quality of the defendant’s background or
character.]]

The CC Bench Notes re: Instructional Duty explains the use of these optional instructions as follows:

On request, give the bracketed sentence that begins with “You may not let sympathy for the defendant’s family.” (People v. Ochoa (1998) 19 Cal.4th 353, 456 [79Cal.Rptr.2d 408, 966 P.2d 442].) On request, give the bracketed sentence that begins with “However, you may consider evidence about the impact the defendant’s
execution.” (Ibid.)

These optional instructions and the supporting Bench Note are erroneous.

Ochoa did not hold that the instructions proposed by CC are correct. The Court merely concluded that there was no federal constitutional violation because neither the jury instructions nor the prosecutor’s argument — to which defense counsel did not object — prevented the jury from considering evidence relevant to Ochoa’s character or the circumstances of the offense charged. (Id. at 506.)

First, the court noted that the jury heard evidence of the emotional impact of a possible death sentence on Ochoa’s family. Id. at 505–06.) Further, the court examined the other instructions the trial court gave regarding what constituted a “mitigating factor,” noting that those instructions “did not forbid him to argue to the jurors to take sympathy for his family into account.” Id. at 504. Specifically, the court observed that the trial court instructed the jury that it could consider “unlimited” mitigating factors and explained that the “[m]itigating factors provided in the instructions [were] merely examples of some of the factors” the jury could consider in deciding whether a death sentence was warranted.” (Id.)

Thus, Ochoa does not authorize an affirmative instruction precluding the jurors from considering sympathy for the defendant’ family.

Moreover, since the decision in Ochoa the USSC has approved the ‘family sympathy defense’ as a competent defense penalty strategy.” (Cullen v. Pinholster (2011) 563 U.S. 170, 193-194.) Accordingly, the above quoted CC instruction which precludes consideration of sympathy for the defendant’s family violates the defendant’s state and federal constitutional rights to instruction on a valid defense theory.

“[A]s a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” (Mathews v. United States (1988) 485 US 58, 63; see also Keeble v. U.S. (1973) 412 US 205, 208.)

Moreover, “a criminal defendant is constitutionally entitled to present all relevant evidence of significant probative value in his favor….” (People v. Marshall (CA 1996) 13 C4th 799, 836 [55 CR2d 347]; see also Washington v. Texas (1967) 388 US 14, 19.) A failure to instruct on the defense theory encompassed by the defendant’s evidence undermines the very constitutional rights which allow the evidence to be presented to the jury. (See e.g., U.S. v. Hicks (4th Cir. 1984) 748 F2d 854, 857-58 [rights to trial by jury (6th Amendment) and due process (5th and 14th Amendments) abridged by failure to instruct on defense theory of the case.)

Similarly, under state law:

“A party is entitled upon request to correct, non-argumentative instructions on every theory of the case advanced by him which is supported by substantial evidence.  The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party’s theory to the particular case. [Citations.]” (Soule v. General Motors Corp. (94) 8 C4th 548, 572; see also People v. Gurule (2002) 28 Cal.4th 557, 660 [“criminal defendant has the right to instructions that pinpoint the theory of the defense case”].)

In other words, absent an appropriate instruction, the right to present evidence is entirely meaningless. (U.S. v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1201-1202; see also Conde v. Henry (9th Cir. 1999) 198 F.3d 734, 739-42.) Thus, when the defendant relies on the valid defense theory of sympathy for the defendant’s family it would be erroneous to deny a defense theory of the case instruction and/or to affirmatively instruct the jury — or allow the prosecutor to argue — that it cannot consider this theory.

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Defendant Has Sixth Amendment Right Of Autonomy Over The Defense

In People v. Bloom (Apr. 21, 2022, S095223) [pp. 34-35] Bloom was charged with killing 3 people. He admitted killing one but repeatedly objected to his lawyer admitting that he killed the other 2 and relying on a diminished mens rea defense to argue that Bloom was only guilty of manslaughter. Despite Bloom’s objections, the judge allowed defense counsel to argued that Bloom killed the three victims, but the killings were manslaughter, not first degree murder. On appeal Bloom argued that counsel’s concessions violated his Sixth Amendment right of autonomy over the defense under McCoy v. Louisiana (2018) 584 U.S. ___ [138 S.Ct. 1500].

In McCoy, the defendant shot and killed his estranged wife’s mother, stepfather, and son in their home. (McCoy, supra, 138 S.Ct. at pp. 1505-1506.) McCoy was indicted on three counts of first degree murder but maintained he was not involved in the killings because he was out of state and the victims were instead killed by corrupt police officers following a drug deal. (Id. at p. 1506.) In light of “overwhelming” evidence tying his client to the murders, McCoy’s counsel decided the best strategy to avoid a death sentence was to concede McCoy’s guilt and appeal to the jury’s mercy in view of McCoy’s” ‘serious mental and emotional issues'” (id. at p. 1507). McCoy, however, was” ‘completely] oppos[ed] to [his attorney] telling the jury that [he] was guilty of killing the three victims.'” (Id. at p. 1506.) The judged ruled that it was counsel’s role to” ‘make the trial decision'” about whether to concede his client’s guilt. Accordingly, counsel conceded McCoy’s guilt.

The United States Supreme Court held that counsel’s concession violated McCoy’s right, grounded in the Sixth Amendment, to “decide that the objective of the defense is to assert innocence.” (McCoy, supra, 138 S.Ct. at p. 1508.)

In Bloom, the CSC concluded “that McCoy forbids counsel from conceding guilt of the charged offense or lesser included offenses despite the client’s wish to maintain innocence. ” People v. Bloom (Apr. 21, 2022, S095223) [pp. 40]

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DNA: Strmix® Probabilistic Genotyping Technology Satisfies The Kelly Standard (People v. Davis (2022) 75 Cal.App.5th 694)

  • –STRmix® is generally accepted in the relevant scientific community

 

  • –Court could rely on validation witness with vested interest in the technology

 

  • –Proprietary software can achieve general acceptance without disclosure of source code
  • –Technology with subjective component can be generally accepted

 

  • –STRmix® not vulnerable to Evidence Code § 352 objection

 

  • –Not an improper expert opinion that the defendant is guilty
  • -CC 332 permitted jury to give whatever weight to and draw whatever conclusions from DNA’s expert testimony it deemed appropriate

Re: DNA generally see also FORECITE:

 

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Meaning Of LWOP: Strategy And Tactics

Simmons v. South Carolina, 512 U.S. 154 (1994), holds that a defendant is entitled to a penalty-phase jury instruction that (if true) life-sentenced prisoners will never be eligible for parole.  For many years, the Arizona Supreme Court held that Simmons does not apply in Arizona because LWOP prisoners are entitled to apply for executive clemency.  The ASC was summarily reversed on this point in Lynch v. Arizona, 578 U.S. 713 (2016).

 

Moreover, the instruction is required notwithstanding the hypothetical possibility that a future law will create parole eligibility that does not now exist.  Ramdass v. Angelone (2000) 530 U.S. 156, 171 (plurality opinion).  (Justices Thomas and Alito dissenting.)

 

Nevertheless, the CSC has consistently rejected Simmons arguments:

 

“We repeatedly have held, however, that trial courts are not required—either upon request, or on the court’s own motion—to instruct that a sentence of life without possibility of parole will inexorably be carried out, because such an instruction would be an incorrect statement of the law. [Citations.] We likewise have rejected the suggestion that Simmons v. South Carolina (1994) 512 U.S. 154, and its progeny mandate such an instruction. [Citations.]” ( People v. Whalen (2013) 56 Cal.4th 1, 88.) We have held that CALJIC No. 8.84, which was given in this case, adequately informs the jury that a defendant sentenced to life without the possibility of parole is ineligible for parole. (People v. Duenas (2012) 55 Cal.4th 1, 28.) We are not persuaded to revisit these prior holdings.

People v. Adams (2014) 60 Cal.4th 541, 581

Despite the CSC’s consistent rejection of such instructions there remain important strategic and tactical matters to consider.

  1. 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 (1991) 53 C3d 618, 680-81.) 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 (1951) 38 C2d 166, 189-90, 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 (1993) 6 C4th 585, 630-33) 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.)
  2. Whether Jury May Consider Likelihood Of Executive Clemency. People v. Ramos (1984) 37 C3d 136, 159 fn 12 holds that the jury may not consider the possibility of Executive Clemency. This could justify instructing the jury that “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].)
  3. 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.]
  4. Whether To Broach Public Misconception As To LWOP On Voir Dire–CAVEAT: A voir dire discussion of juror misconceptions about the meaning of LWOP may result in the entire panel learning about the governor’s commutation power.
  5. Argument On Nature Of LWOP In Lieu Of Instruction. People v. Gutierrez (2002) 28 C4th 1083 stated that counsel may properly argue “the full nature of a sentence of life in prison without the possibility of parole.” This may be a better approach than a jury instruction which could lessen the sense of personal responsibility the jurors should have, particularly given the fact that the defense argues last in a penalty trial.
  6. Instruction As To Meaning Of LWOP: Sample Argument When Instruction Refused. People v. Holt (1997) 15 C4th 619, 689 rejected the defendant’s argument that the term life without possibility of parole is a technical term requiring sua sponte definition by the trial court. In so doing, the court quoted with approval the following argument of defense counsel regarding the issue:

“‘[the defendant] is going to spend the rest of his life in prison and life without parole means what it says …,’ Counsel also told the jury that notorious murderers who had received parole hearings did so under the old law, under the present law defendant would not have parole hearings and ‘[h]e will not get out.’”

Accordingly, under the authority of Holt, counsel should be permitted to make such arguments, especially if defendant’s request to define life without parole is rejected. (See e.g., FORECITE PG VI(C)(10) Discussing Or Reciting Legal Principles During Argument As Alternative To Refused Instruction

 

See also FORECITE F 8.84c Juror Misconceptions About Parole From Pre-1978 Cases.