Return to CALJIC Part 5-8 – Contents
F 8.84.1 n1 Applicability Of Guilt Phase Instructions.
NOTE: An instruction advising the jury as to the applicability of the guilt phase instructions should inform the jury as to any specific penalty instructions which take precedence over the guilt phase instructions. (cf. People v. Cummings (93) 4 C4th 1233, 1336 [18 CR2d 796].)
In People v. Saunders (95) 11 C4th 475, 561 [46 CR2d 751] the court stated: “Because none of these instructions was, by its terms, limited to the guilt phase, and because no penalty phase instructions contradicted those instructions, ‘we believe a reasonable jury would correctly assume that those generic instructions continued to apply’.” (See also People v. Carter (2003) 30 C4th 1166, 1219 [“we strongly caution trial courts not to dispense with penalty phase evidentiary instructions”].)
F 8.84.1 n2 Applicability Of Guilt Phase Instruction.
(See Wade v. Calderon (9th Cir. 1994) 29 F3d 1312, 1320 [“… we cannot assume that the jury would carry the definition of torture over from the guilt instruction and apply it in its deliberations on the torture-murder special circumstance.”].)
F 8.84.1 n3 Applicability Of Guilt Phase Instructions.
It is not prejudicial error for the trial court to fail to reiterate the guilt phase instructions which apply to the penalty phase. (People v. Hawthorne (92) 4 C4th 43, 73-74 [14 CR2d 133]; People v. Wharton (91) 53 C3d 522, 600 [280 CR 631]; but see Wade v. Calderon (9th Cir. 1994) 29 F3d 1312, 1320, [… “we cannot assume that the jury would carry the definition of torture over from the guilt instruction and apply it in its deliberations on the torture-murder special circumstance”]; compare People v. Earp (99) 20 C4th 826, 900 [85 CR2d 857] [No juror reasonably would have understood the trial court’s penalty phase instruction to disregard instructions given at the guilt phase as permitting consideration of arrests for child molestation unsubstantiated by any evidence].)
F 8.84.1 n4 Applicability Of Guilt Phase Instructions: Limitation On Bad Character Evidence Presented At Guilt Phase.
Bad character evidence which is presented at the guilt phase to prove the defendant guilty of the charged murder may not be considered by the jury as evidence of bad character at the penalty phase since use of such evidence is not statutorily authorized as an aggravating factor. Hence, upon request, the jury should be given a limiting instruction regarding this evidence. (People v. Champion (95) 9 C4th 879, 946-47 [39 CR2d 547].)
F 8.84.1 n5 No Duty To Instruct Sua Sponte On Presumption Of Innocence Or Prosecutorial Burden At Penalty Phase.
People v. Davenport (95) 11 C4th 1171, 1228 [47 CR2d 800] held that the court has no sua sponte duty to instruct on the presumption of innocence and the prosecutorial burden at the penalty phase.
F 8.84.1 n6 Should Jury Be Reinstructed With Guilt Phase Instructions At The Penalty Trial.
CJ 8.84.1 (6th Ed.) has been modified to provide for reinstruction upon all applicable guilt phase instructions. In reliance upon People v. Babbitt (88) 45 C3d 660, 718 fn 26 [248 CR 69], the Use Note suggests that the modified instruction be given in lieu of CJ 1.00 and it “should be followed by all appropriate instructions beginning with CJ 1.01, concluding with CJ 8.88.” (See also People v. Carter (2003) 30 C4th 1166, 1222 [trial court erred in failing to reinstruct the jury with applicable evidentiary instructions (CJ 1.00 through 3.30) at penalty phase].) There are two problems with this modification.
First, if the jury is to be reinstructed upon the applicable guilt phase instructions, the reinstructions should not conclude with CJ 8.88. Certainly other instructions after CJ 8.88 would be relevant and appropriate.
Second, in some cases it may be distracting and confusing to the jury to reinstruct upon the multiplicity of guilt phase instructions. The sheer volume of guilt phase instructions may distract the jury from the few penalty instructions which are crucial to a reliable determination as to penalty. Hence, the 8th Amendment may be implicated by over-instruction upon marginally relevant guilt phase issues– especially over the objection of the defense. Moreover, as the California Supreme Court recognized in People v. Saunders (95) 11 C4th 475, 561 [46 CR2d 751], a reasonable jury would correctly assume that the generic guilt phase instructions continue to apply at the penalty trial. Hence, if requested by the defense, the court should omit or limit reinstruction on guilt instructions.
F 8.84.1 n7 Improper To Refer To The Prosecution as “The People.”
Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”
F 8.84.1 n8 Death Penalty Trial: Admissions/Confession — Cautionary Instruction Should Only Be Given On Request.
With reference to the giving of CJ 2.71, a “court is required to give the cautionary instruction at the penalty phase only upon defense request.” (People v. Livaditis (92) 2 C4th 759, 782-84 [9 CR2d 72].) In Livaditis the court observed that a defendant may not desire such an instruction at the penalty phase, because “[w]hether a particular statement is aggravating or mitigating is often open to interpretation.” (Id. at p. 783.) The court distinguished the holding in People v. Vega (90) 220 CA3d 310 [269 CR 413] that the jury would understand to apply the instruction only to statements that were inculpatory, on the grounds that “[a]t the penalty phase, the distinction between mitigation and aggravation is often more blurred than the distinction between a statement that incriminates and one that does not.” (Livaditis, 2 C4th at p. 784.) Offering as an example a statement in which a defendant states he is sorry he stabbed the victim, the court noted that such a statement is aggravating, because it admits guilt, but also mitigating, because it expresses remorse. (See also People v. Slaughter (2002) 27 C4th 1187, 1200 [120 CR2d 477].)
F 8.84.1 Inst 1
Cautionary & Limiting Penalty Instructions:
When Expert’s Opinion Of Death Penalty Is Elicited
The expert witness[es] testified regarding [his] [her] [their] views on the death penalty in general. This testimony was not offered for the purpose of determining whether or not the death penalty is appropriate in this case. Rather, [it] was offered and may be considered by you only for the limited purpose of determining what, if any, bias the witness has for or against the death penalty, and the extent to which such bias . . . bears on your evaluation of [the witness’s] credibility. [¶] The question of which penalty to impose is a matter for your determination, and you may not take into account any opinion expressed by any expert witness as to which penalty should be imposed.
Points and Authorities
People v. Mickle (91) 54 C3d 140, 196 [284 CR 511], holds that it is permissible to elicit a partisan expert’s philosophical views on capital punishment in general which might disclose some bias bearing on his or her credibility as a witness. When such evidence is elicited, Mickle authorizes a limiting instruction such as the one proposed above which was given in Mickle.
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].)
NOTE: The tactic of eliciting such opinions should be closely scrutinized.
F 8.84.1 Inst 2
Jury May Not Consider Deterrence Or Monetary Cost
In deciding whether death or life imprisonment without the possibility of parole is the appropriate sentence, you may not consider for any reason whatsoever the deterrent or non-deterrent effect of the death penalty or the monetary cost to the State of execution or maintaining a prisoner for life.
Points and Authorities
In People v. Thompson (88) 45 C3d 86, 132 [246 CR 245], the court held that it would not be error to give an instruction “to forestall consideration of deterrence or cost ….” Accordingly, such an instruction should be given upon request. (See People v. Bacigalupo (91) 1 C4th 103, 145-46 [2 CR2d 335]; see also People v. Welch (99) 20 C4th 701 [85 CR2d 203] [instructing the jury not to consider the deterrent effect of the death penalty or the monetary cost of executing a prisoner versus maintaining him in prison for life without possibility of parole “may be appropriate in some cases…”].) The above instruction is the one which was requested and refused in Bacigalupo.
Consideration of cost or deterrence would violate the 8th and 14th Amendments by allowing the jury to consider non-statutory aggravation. (See Clemons v. Mississippi (90) 494 US 738, ____ [108 LEd2d 725; 110 SCt 1441];People v. Williams (88) 45 C3d 1268, 1324 [248 CR 834].)
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 U.S. 738 [108 LEd2d 725; 110 SCt 1441]; McCleskey v. Kemp (87) 481 US 279 [95 LEd2d 262; 107 SCt 1756].)
CAVEAT: In People v. Marshall (96) 13 C4th 799, 859 [55 CR2d 347], the defendant argued that the prosecutor’s suggestion that the jury should refrain from considering the deterrent or nondeterrent effect of the death penalty led the jury to entertain a limited, mechanical view of its function, in contravention of the 8th Amendment. Although the California Supreme Court rejected this argument, any potential federal issue will likely be waived if the defendant requests such an instruction.
F 8.84.1 Inst 3
Jury Does Not Have Duty To Reach A Verdict
*Modify last sentence of last paragraph of CJ 8.84.1 as follows [added language is capitalized]:
Both the People and the Defendant have a right to expect that you will consider all of the evidence, follow the law, exercise your discretion conscientiously, and reach a just verdict IF YOU CAN.
Points and Authorities
(See FORECITE F 1.00k.)
