Return to CALJIC Part 5-8 – Contents
F 8.88 n1 Use of the Term “Totality” Improperly Implies That One Mitigating Factor May Not Outweigh All Factors In Aggravation.
CJ 8.88 instructs the jury that it must consider “the totality of the aggravating circumstances with the totality of the mitigating circumstances.” This instruction is misleading because one mitigating factor is sufficient to outweigh all others. (People v. Hayes (90) 52 C3d 577, 642 [276 CR 874].) [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-561.]
(See FORECITE F 8.88b.)
F 8.88 n2 Federal Constitutional Challenge To Pre-Brown Sentencing Instruction.
The original version of the CALJIC sentencing instruction required the jury to return a verdict of death upon finding that aggravation “outweighed” mitigation. Although the California Supreme Court has held that the existence of such language does not necessarily constitute reversible error, the Ninth Circuit has held it to be reversible error. (Murtishaw v. Woodford (9th Cir. 2001) 255 F3d 926, 967-69 [instruction that jury “shall” return a death sentence if aggravation outweighed mitigation was per se reversible constitutional error].) (See Brief Bank #B-535 for the amicus brief of CAP on this issue.)
F 8.88 n3 ¶3 (Issue #9): Even if Aggravation Outweighs Mitigation Jury May Still Vote for Life.
In People v. Noguera (92) 4 C4th 599, 642 [15 CR2d 400] the jury asked, “[i]f the jury finds aggravating circumstances exceed the mitigating circumstances, is it still possible for the jury to find the appropriate sentence is life without the possibility of parole?” The Supreme Court held that the trial judge did not abuse his discretion in refusing the defense request to respond with an unqualified “yes.” Hence, this suggests that the defendant has no right to specific instruction on this issue even though the law is clear that the jury may return a verdict of (LWOP) even if it finds that aggravation outweighs mitigation. (See also People v. Jackson (96) 13 C4th 1164, 1243 [56 CR2d 49] [CJ 8.88 “as a whole conveyed that the weighing process is ‘merely a metaphor for the jurors’ personal determination that death is the appropriate penalty under all the circumstances.’ [citation].”)
This state of affairs suggests that counsel may wish to make this point known to the jury during argument. Certainly such an argument would be proper given the propensity for the California Supreme Court to rely upon the argument of counsel to clarify erroneous or ambiguous jury instructions. (See People v. Brown (88) 45 C3d 1247, 1256 [248 CR 817].)
F 8.88 n4 Right To Instruction That Death Is The Greater Penalty.
The Supreme Court in People v. Ochoa (98) 19 C4th 353, 478 [79 CR2d 408] assumed that death is the worst punishment “as a matter of law.” However, the court also cited People v. Bloom (89) 48 C3d 1194, 1223 [259 CR 669] [“a jury might well conclude that death was ‘too good’ for the defendant and that life imprisonment with no hope of parole would be the more severe and more appropriate punishment”]. This observation militates in favor of specifically instructing the jury that death is the greater punishment. Otherwise, the jury may use the precise reasoning which Bloom identified—to turn the entire death penalty trial on its head and impose death on the defendant because it is viewed by the jury as the less severe punishment.
See FORECITE F 8.88e.
F 8.88 n5 Challenge To Restitution Order In Death Penalty Case.
See People v. Vieira (2005) 35 C4th 264, 305-06, fn. 14.
F 8.88a
F 8.88a Law Gives No Preference As To Appropriate Penalty.
See FORECITE F 766.2 Inst 3.
F 8.88b Life Verdict Permissible Even If Aggravating Factor Found.
See FORECITE F 766.2 Inst 4.
F 8.88c Consequences Of Failure To Agree At Penalty: Jury Should Be Informed That Guilt And Special Circumstance Verdicts Will Not Be Affected.
See FORECITE F 766.2 Inst 6.
F 8.88d
Single Mitigating Circumstance Sufficient For Life Verdict
*Add to CJ 8.88 as follows:
[One mitigating circumstance may be sufficient for you to return a verdict of life imprisonment without possibility of parole.]
Points and Authorities
People v. Sanders (95) 11 C4th 475, 557 [46 CR2d 751] held that an instruction such as the above “significantly reduced the risk of juror misapprehension [by] expressly [telling] the jury that …a single factor could outweigh all other factors.” (But see People v. Lucero (2000) 23 C4th 692, 701 [97 CR2d 871] [instruction that one mitigating factor was sufficient to outweigh all aggravating factors would have been argumentative unless it also told the jury that one aggravating factor is sufficient to outweigh all mitigating factors].)
However, People v. Jones (98) 17 C4th 279, 314 [70 CR2d 793] held that an instruction that “one mitigating circumstance may be sufficient to support a decision that death is not the proper penalty” was duplicative and, therefore, properly rejected. This conclusion was based on the fact that the court instructed the jury to “return a verdict of life imprisonment without possibility of parole if it found that the aggravating factors did not substantiallyoutweigh the mitigating factors, if it outweighed them at all.” However, the court failed to explain how the concept of a single mitigating factor justifying a verdict of life is encompassed within the language of the general instruction which was given. Moreover, the current version of CJ 8.88 does not contain the language relied upon by Jones. Instead, the instruction focuses upon the “totality of the aggravating circumstances” and “the totality of the mitigating circumstances.”
CAVEAT: The jury should not be given the impression that it is necessary to find any mitigating factors at all. (See FORECITE 8.85 Inst 3 [No Mitigation Necessary To Reject Death]. Therefore, the instruction should only be supplemented with an instruction such as FORECITE F 8.85 Inst 3.
STRATEGY NOTE: If such a request is rejected, at a minimum, counsel should be permitted to explain during argument that there is no specific instruction on this point because it is considered to be included in the general weighing instruction. (See FORECITE F 1.00l [counsel’s argument that a specific rule is included in a general instruction].)
See also FORECITE F 8.88 n3 [Even If Aggravation Outweighs Mitigation Jury May Still Vote For Life].
F 8.88e Right To Instruction That Death Is The Greater Penalty.
*Add to CJ 8.88:
Under the law and regardless of your personal belief as to what is harder on somebody or what is more severe or what is the tougher penalty, the death penalty is the more severe penalty. Life in prison is not as severe as the death penalty. That is the law and that is the law you have to follow. You can’t inject your own belief as to what you think is tougher or not.
[Source: People v. Harris (2005) 37 C4th 310, 361 [trial court did not err in giving the above instruction].]
Points and Authorities
The Supreme Court in People v. Ochoa (98) 19 C4th 353, 478 [79 CR2d 408] assumed that death is the worst punishment “as a matter of law.” However, the court also cited People v. Bloom (89) 48 C3d 1194, 1223 [259 CR 669] [“a jury might well conclude that death was ‘too good’ for the defendant and that life imprisonment with no hope of parole would be the more severe and more appropriate punishment”]. This observation militates in favor of specifically instructing the jury that death is the greater punishment. Otherwise, the jury may use the precise reasoning which Bloom identified—to turn the entire death penalty trial on its head and impose death on the defendant because it is viewed by the jury as the less severe punishment.
