Return to CALJIC Part 5-8 – Contents
F 8.85(b) n1 Unadjudicated Violent Crimes (PC 190.3(b)).
In Delo v. Lashley (93) 507 US 272 [122 LEd2d 620, 627; 113 SCt 1222], the court held that the judge had no obligation to instruct on the mitigating circumstance of defendant’s lack of significant history of prior criminal activity when the defendant had failed to make any attempt to show that he lacked a criminal past. This case raises the question of whether defendants in California must similarly present evidence of their lack of prior criminal activity before obtaining instruction thereon. However, the California Supreme Court has determined that it is “the better practice for a court to instruct on all the statutory penalty factors, directing the jury to be guided by those that are applicable on the record.” (People v. Marshall (90) 50 C3d 907, 932 [269 CR 269].) Such an instruction better enables the jury to “place the individual defendant’s conduct in perspective” and also avoids the risk that a factor that is applicable on a given record may nevertheless be erroneously omitted. (Ibid.) Moreover, the California statute refers to “presence or absence” of prior criminal activity unlike the Missouri statute. NOTE: Even if an evidentiary showing is necessary, only a minimal showing is necessary to justify the instruction, such as the testimony of the defendant’s acquaintances or a presentence report. (Delo 122 LEd2d at 627-28.)
F 8.85(b) n2 Unadjudicated Violent Crimes: Sua Sponte Duty To Instruct Upon Available Defenses.
In People v. Montiel (93) 5 C4th 877 [21 CR2d 705], the court recognized that although there is no sua sponte duty at the penalty phase to instruct on elements of “other crimes” introduced in aggravation, when such instructions are given, they should be accurate and complete. (Montiel 5 C4th at 942.) Therefore, the court assumed, without deciding, that penalty instructions on the elements of aggravating “other crimes” should include, on the court’s own motion if necessary, any justified defenses such as intoxication. (Ibid.) NOTE: Montiel’s conclusion regarding intoxication instructions is based upon its assumption that “the court must instruct sua sponte on legally available defenses, such as intoxication which may negate specific intent, when such defenses are supported by substantial evidence. [Citation to People v. Sedeno (74) 10 C3d 703, 716].” However, Montiel does not discuss People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364] which held that intoxication instructions must be requested.
F 8.85(b) n3 Cure Of Invalid Aggravating Factor.
“[O]nly constitutional harmless-error analysis or reweighing at the trial or appellate level suffices to guarantee that the defendant received an individualized sentence.” (Stringer v. Black (92) 503 US 222 [117 LEd2d 367, 379; 112 SCt 1130].) “Where the death sentence has been infected by a vague or otherwise constitutionally invalid aggravating factor, the state Appellate Court or some other state sentencer must actually perform a new sentencing calculus if the sentence is to stand.” (Richmond v. Lewis (92) 506 US 40 [121 LEd2d 411, 422; 113 SCt 528]; see also Clemons v. Mississippi (90) 494 US 738, 745 [108 LEd2d 725; 110 SCt 1441].)
F 8.85(b) n4 Unadjudicated Violent Crimes: Applicable Only To Crimes Directed Against A Person.
Factor (b) of PC 190.3 encompasses only those threats of violent injury that are directed against a person or persons. (People v. Lewis (2001) 26 C4th 334, 391-92 [110 CR2d 272]; see also People v. Kirkpatrick (94) 7 C4th 988, 1015-16 [30 CR2d 818]; FORECITE F 8.85(b) n13.)
F 8.85(b) n5 Unadjudicated Violent Crimes: Sua Sponte Duty To Instruct On Elements
In People v. Cain (95) 10 C4th 1, 72-73 [40 CR2d 481], the court suggested that there may be some circumstances under which “the trial court would have a sua sponte obligation to instruct on elements or defenses” of uncharged violent criminal activity under PC 190.3(b). Hence, where the instructions are so vital to the jury’s evaluation of defendant’s prior actions, instruction on the elements and/or defenses may be required sua sponte. (Ibid.)
F 8.85(b) n6 Unadjudicated Violent Crimes: Duty To Instruct On Elements Applies Where Evidence Presented At Guilt Phase.
The rule in People v. Robertson (82) 33 C3d 21, 53 [188 CR 77], that unadjudicated crimes presented at the penalty phase must be proven beyond a reasonable doubt before the jury may consider them is equally applicable where the evidence was presented at the guilt phase. (People v. Champion (95) 9 C4th 879, 949-50 [39 CR2d 547].)
F 8.85(b) n7 Unadjudicated Violent Crimes: Escape Must Be Violent.
People v. Jackson (96) 13 C4th 1164, 1231-32 [56 CR2d 49] recognized but did not address the question of whether a “non-violent” escape may be admitted as prior violent criminal activity under PC 190.3(b). [Compare concurring opinions of Mosk and Baxter, 13 C4th at 1254-64.] In any event, however, if an escape is admitted into evidence, it may be advisable to modify the standard definition of escape (CJ 7.31), so as not to permit the jury to consider physical force against property as an aggravating factor. (See Jackson, 13 C4th at 1264, fn 4, Baxter concurring; see also FORECITE F 7.31a.)
F 8.85(b) n8 Applicability Of Accomplice Instructions To Penalty Phase.
The general rules requiring accomplice instructions apply at the penalty phase as well as the guilt phase of a capital trial. (People v. Williams (97) 16 C4th 153, 275-76 [66 CR2d 123].) When the prosecution seeks to introduce evidence of the defendant’s unadjudicated prior criminal conduct, the jury should be instructed at the penalty phase that accomplice testimony must be corroborated. (Ibid.) However, the corroboration requirement does not extend to cases where the jury has already found the defendant guilty of the aggravated prior crime. (Ibid.)
F 8.85(b) n9 Unadjudicated Violent Crimes: Continuous Course Of Criminal Activity/Conspiracy.
People v. Williams (97) 16 C4th 153, 242-43 [66 CR2d 123] held that all crimes committed during the continuous course of criminal activity that include force or violence may be considered under factor (b) as aggravation. This includes participation in a criminal conspiracy that was part of the continuous course of conduct.
F 8.85(b) n10 Accomplice Testimony Regarding Factor (b) Evidence.
When the prosecution seeks to introduce evidence of other unadjudicated criminal activity under factor (b), the accomplice corroboration instructions should be given at the penalty phase, People v. Williams (97) 16 C4th 153, 275-76 [66 CR2d 123]. However, this requirement does not apply to actual convictions as opposed to unadjudicated criminal activity. (Ibid.)
F 8.85(b) n11 Defense Theory That Prior Criminal Activity Or Convictions Are Mitigating.
Even though the defendant’s prior violent criminal acts (PC 190.3(b)(c)) are normally considered to relate to aggravation, it may be argued that they are also indicative of mitigation as a reflection of the poverty, deprivation and lack of available rehabilitation. (See e.g., People v. Roybal (98) 19 C4th 481, 527 [79 CR2d 487].) Furthermore, there may be mitigating circumstances relating to the particular acts or prior convictions which may reflect favorably on the defendant’s character. Accordingly, if this is the defense theory, the jury should be instructed in such a way that it understands the potential mitigating relevance of the prior criminal acts and felony convictions. In Roybal, the court concluded that the jury would not have misunderstood the instructions in this regard. However, the Roybal court did not discuss the issue in the context of the right to specific instruction on the defense theory of the case. (See FORECITE PG III(A).)
STRATEGY NOTE: If such instruction is refused, the matter may be appropriate for argument to the jury as a legal principle which is included within the more general instructions. (See FORECITE F 1.00l.)
F 8.85(b) n12 Prior Violent Criminal Activity (PC 190.3(b)): Consideration Of Greater Uncharged Offense.
Even though the defendant has pled guilty to a lesser crime, under PC 190.3(b) the prosecutor may introduce the underlying facts of the crime and have the jury instructed to consider whether the defendant actually committed a greater crime than the one which defendant admitted in the plea. (People v. Jones (98) 17 C4th 279, 312 [70 CR2d 793] [defendant pled to misdemeanor battery but jury was allowed to find that the offense was assault likely to cause great injury (PC 245 (a)(1)].)
However, there remains the question of whether, in such a situation, the jury should be instructed upon the principle of People v. Dewberry (59) 51 C2d 548, 555 [334 P2d 852] which instructs the jury to convict of the lesser crime if there is a reasonable doubt as to whether the greater or lesser was committed. (CJ 17.10; see also FORECITE F 17.10a.) In Jones the Supreme Court declined to consider whether a Dewberry instruction should have been given because the instruction “might have harmed defendant by signalling that the assault-based offense, for which there was strong evidence, was a more serious crime than simple battery, a misdemeanor.” (Jones, 98 DAR at 1033.)
Hence, before requesting such an instruction counsel should consider whether it will benefit the defendant. If it is determined that the defendant will benefit from the instruction, Jones should not be an impediment to giving the instruction if counsel makes it clear that the instruction is part of the defense theory (see FORECITE PG III(A)) and whatever potential harm which may arise from it is waived. (See FORECITE F 2.03 n9 [a criminal defendant may waive rights that exist for his or her own benefit].) The party who benefits from a cautionary or limiting instruction may object to the instruction for tactical reasons. (See also FORECITE PG VI(C)(1.1).)
F 8.85(b) n13 Unadjudicated Violent Crimes: Applicability To Arson.
It may be argued that arson does not qualify under PC 190.3(b). However, in People v. Lewis (2001) 26 C4th 334, 391-92 [110 CR2d 272] the California Supreme Court did not discuss whether there is any error in the trial court’s giving an instruction that the jury may consider “[a]rson (burning the property of Fresno County)” as an aggravating factor, nor did Justice Kennard comment on this instruction, even though she cited several California Supreme Court cases holding that violence to property is not sufficient to justify admitting evidence of violence or the threat of violence as an aggravating factor.
F 8.85(b) n14 Unadjudicated Violent Crimes: Prosecution May Obtain Instruction On Each Crime.
See People v. Michaels (2002) 28 C4th 486 [122 CR2d 285].
F 8.85(b) n15 Unadjudicated Violent Crimes: Accomplice Testimony Must be Corroborated.
See People v. McDermott (2002) 28 C4th 946 [123 CR2d 654] [where an accomplice testifies at penalty phase concerning other alleged violent criminal activity by defendant, there must be corroboration of the accomplice’s testimony].
F 8.85(b) n16 Unadjudicated Violent Crimes: Objection To Instruction On Elements As Prosecution Pinpoint Instruction.
There can be no doubt that CJ 8.86 and CJ 8.87 instruct the jurors regarding specific evidence in the form of the defendant’s past criminal activity. Such a focus on specific evidence has been condemned as improperly argumentative. (See e.g., People v. Wright (88) 45 C3d 1126, 1135-1138; see also FORECITE F 2.03 n8.) The California Supreme Court has consistently rejected challenges to such prosecution pinpoint instructions on the basis that the instructions actually benefit the defendant:
“Absent instructions like CALJIC Nos. 8.86 and 8.87, there is no assurance the jury will consider only proper aggravating evidence.” (People v. Yeoman (2003) 31 C4th 93, 151; see also, People v. Jackson (96) 13 C4th 1164, 1224 [CJ 2.03, CJ 2.04, CJ 2.52 and CJ 2.06 are not improper pinpoint instructions because the cautionary nature of the instructions benefits the defense].)
However, the fact that an instruction may benefit the defendant does not justify giving it over a defense objection. It is axiomatic that the party to whom a benefit inures may waive that benefit. (See FORECITE F 2.03 n9.)
Moreover, it is a fundamental premise of jury instruction practice that the party who benefits from a limiting or cautionary instruction should control whether or not the instruction is given. In fact, it is axiomatic that unless the benefitting party requests such an instruction, it should not be given under the assumption that the party made a tactical decision to forego the benefits of the instruction to avoid the greater prejudice of giving undue emphasis to the object of the instruction. (See FORECITE PG VI(C)(1.1).)
In sum, CJ 8.86 and CJ 8.87 should not be given over objection by the defense.
F 8.85(b) Inst 1
Absence Of Violent Criminal Activity As Mitigation
(PC 190.3(b))
*Modify CALJIC 8.85(b) to provide as follows:
The absence of any violent criminal activity by the defendant other than the crime[s] for which [he] [she] has been tried in the present proceedings is a mitigating factor.
Points and Authorities
The absence of other violent criminal activity and/or prior felony convictions “plainly is mitigating.” (People v. Bacigalupo (91) 1 C4th 103, 145-46 [2 CR 335] (Mosk, J. concurring); see also Lashley v. Armontrout (8th Cir. 1992) 957 F2d 1495, 1501; Aldridge v. Dugger (11th Cir. 1991) 925 F2d 1320, 1330; People v. Cox (91) 53 C3d 618, 674 [280 CR 692]: “As a matter of law, some factors can only be considered in mitigation, e.g., moral justification”; People v. Bonillas (89) 48 C3d 757, 793 [257 CR 895]: absence of premeditation and deliberation is mitigating; but see People v. Lucero (2000) 23 C4th 692, 730 [97 CR2d 871].)
It has been held that the trial court does not err in failing to identify each factor as “mitigating” or “aggravating” because many factors allow each side to advance “its own theory for assessing the same factor in its favor. . . . To require the trial court to attach one label or the other would lead to unproductive, insoluble debates and would unduly hamper a meaningful examination of the full range of relevant considerations.” (People v. Cox (91) 53 C3d 618, 675 [280 CR 692].)
However, these concerns do not apply to obviously mitigating factors such as lack of prior felony convictions. Hence, there should be no impairment to instruction, upon request, that such factors are mitigating when the evidence so establishes. (See People v. Marshall (90) 50 C3d 907, 930 [269 CR 269].) “[I]t is error for a court not to give an instruction if that instruction is both correct in law and applicable on the record . . . .” (People v. Benson (90) 52 C3d 754, 804 [276 CR 827].)
Moreover, the 8th Amendment requires that the jury be adequately instructed upon mitigating factors. (See Lockett v. Ohio (78) 438 US 586 [57 LEd2d 973; 98 SCt 2954].)
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: In People v. Crandell (88) 46 C3d 833, 884 [251 CR 227], it was observed that: “The absence of prior violent criminal activity and the absence of prior felony convictions are significant mitigating circumstances in a capital case, where the accused frequently has an extensive criminal past. [Citation.]” Hence, the above instructions could be supplemented to reflect this language.
For other FORECITE instructions relating to unadjudicated crimes. See FORECITE F 8.87 Inst 2 & FORECITE F 8.87 Inst 3.
F 8.85(b) Inst 2
Death Penalty:
Jury May Not Consider Non-Violent Acts Or Juvenile Adjudications
*Add to CJ 8.85(b) Inst 2:
You have heard evidence of [non-violent unlawful acts] [and] [juvenile adjudications] allegedly attributed to the defendant. These [acts] [and] [adjudications] are not aggravating factors. You must not consider them as providing any weight whatsoever in favor of a sentence of death.
Points and Authorities
In People v. Welch (99) 20 C4th 701, 770 [85 CR2d 203] the court assumed from the instructions, when read in context, that the jury would understand that the listing of aggravating factors was exclusive and non-violent acts or juvenile adjudications should not be considered. However, because this is a correct statement of the law, the defendant should have the right to clarify the matter for the jury upon request.
NOTE: There is a basis for arguing that non-violent prior acts are actually mitigation. (FORECITE F 8.85(c) n2.)
F 8.85(b) Inst 3
CAVEAT: When CALJIC 2.50 Given At The
Guilt Phase Of Capital Trial
*Add to CJ 8.85(b):
Previously you were instructed you could consider other offenses for limited purposes in deciding whether the prosecution met its burden of proof at the guilt trial. Those instructions allowed you to consider the other crimes if you found that the defendant committed them by a preponderance of the evidence.
Now for purposes of the penalty trial you must disregard those prior instructions and findings, if any. At the penalty trial the much more stringent standard of proof beyond a reasonable doubt applies. Before you may consider any other offense in aggravation at the penalty trial you must first find that the prosecution has proven the defendant guilty of that offense beyond a reasonable doubt.
Points and Authorities
If other crimes evidence are included in the guilt trial per the CJ 2.50 preponderance standard, special care should be taken in a capital case. The instructions should assure that the proof beyond a reasonable doubt standard is applied to the other crimes for purposes of the penalty phase. (See FORECITE F 8.85(b) n6; see generally People v. Robertson (82) 33 C3d 21, 54 [188 CR 77].)
