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DP III(C)

INSTRUCTION CHECKLIST: PENALTY PHASE ISSUES [§DP-24]

  • NOTE: CSC = California Supreme Court; USSC = U.S. Supreme Court. The status of the issue is noted only if it has been directly considered. If no status is noted then the issue is unresolved by both the CSC and USSC. Each enumerated issue represents a point upon which an instructional request or objection may be made. CAVEAT 1: Rejection by California Supreme Court (“CSC”) doesn’t preclude preserving 8th/14th Amendment issues for federal review. CAVEAT 2: Rejection of sua sponte duty to instruct doesn’t preclude instructing on request.
  • 8.83 ¶ 3: Adverse inference from defendant’s failure to testify more fully [§DP-25].
    • 1. People v. Davenport (95) 11 C4th 1171, 1231 [47 CR2d 800] summarily rejected the appellant’s claim that the trial court had a sua sponte duty to instruct the jury not to draw adverse inferences from his failure to testify more fully.
  • 8.84 ¶ 2: Commutation, Parole & Judicial Review [§DP-26]
    • 1. Jury should be instructed on commutation issues before trial. CSC: Rejected. Only when jury raises commutation issue should court respond. (Manual 510, 92 Supp 170.)
    • 2. The following instructions are proper:
      • a. Okay to instruct that commutation applies to both sentences but not to consider this. (Manual, 92 Supp 170.)
      • b. LWOP means “just that” and jury should assume either sentence will be carried out. (92 Supp 170; R&O 43:25H.)
      • c. Okay to instruct jury not to consider possibility of escape.
    • 3. The CSC has held the following instructions not to be proper responses to jury inquiry:
      • a. That “LWOP means the defendant will not be paroled.” (People v. Cox (91) 53 C3d 618, 680-81 [280 CR 692]; Manual, 91 Supp 7, 92 Supp 171.)
      • b. Instruction that commutation for ex-felon is not granted unless at least four justices of the California Supreme Court agree. (People v. Whitt (90) 51 C3d 620, 655-57 [274 CR 252].)
    • 4. If judge gives Briggs-type instruction in response to inquiry, defendant should be allowed to present evidence or argument regarding commutation. (Manual, 91 Supp 7, 92 Supp 171.)
  • 8.84 ¶ 3: Jury Must Determine Penalty [§DP-27].
    • 1. Jury should be instructed at penalty phase in language of CALJIC 17.40 re: duty to reach verdict “if you can do so.” (Manual 511, see also People v. Harris (81) 28 C3d 935, 964 [171 CR 679].)
    • 2. Instruction that jury need not reach verdict. (Manual, 511; 91 Supp 8, 92 Supp 171.) CSC: No right to instruction absent evidence of deadlock. (People v. Miller (90) 50 C3d 954, 1009 [269 CR 492].)
    • 3. Consequences of failure to reach verdict. CSC: No sua sponte duty even if jury asks. (People v. Morris (91) 53 C3d 152, 227 [279 CR 720].)
    • 4. Jury not to consider availability of appellate review. CSC: Rejected sua sponte. (People v. Mincey (92) 2 C4th 408, 468-89 [6 CR2d 822].)
    • 5. Inquiry into a numerical division at penalty trial violates 6th (trial by jury), 8th (cruel/unusual punishment), and 14th (due process) Amendments. CSC: Rejected. (People v. Breaux (91) 1 C4th 281, 319 [3 CR2d 81].)
  • 8.84.1 ¶ 1 & 2: Applicability of Guilt Phase Instructions [§DP-28]
    • 1. Court should give either detailed guilt phase reinstruction or inform jury which guilt phase instructions apply. (Manual 512-13; but see 92 Supp 172.) The use note to CALJIC 8.84.1 recommends that the court utilize the “more cumbersome” procedure of reinstructing on all applicable guilt phase instructions as to whether or not to seek reinstruction. CAVEAT: Competing strategic considerations may apply. (See Manual 512.) Note also that the CALJIC use note erroneously limits reinstruction to 1.01 thru 8.88. (Manual 512-13.) CSC: The court should “expressly inform” the jury which guilt instructions apply. (People v. Babbitt) (88) 45 C3d 660, 718, n 26 [248 CR 69].) However, failure to do so sua sponte is harmless error. (People v. Cooper (91) 53 C3d 771, 846 [281 CR 90]; Manual 92 Supp 172.)
    • 2. If jury is reinstructed on guilt phase instructions CALJIC 8.84.1 should be supplemented to inform jury that the penalty determination is a “moral” judgment. (Manual 512; 91 Supp 8.) USSC: Sentence choice should be a “reasoned moral response . . . .” (Penry v. Lynaugh (89) 492 US 302, 319, 328 [106 LEd2d 256; 109 SCt 2934].)
    • 3. On request, court must instruct on elements of alleged offenses. (Manual p. 513). CSC: Proper on request by either side. (People v. Phillips (85) 41 C3d 29, 72-73, n 25 [222 CR 127].) (CAVEAT: See Manual at 512, 521 re: strategic considerations.)
    • 4. CALJIC 2.11 improperly invites speculation regarding non-statutory aggravating factors. (Manual 92 Supp 172.) CSC: Rejected. (People v. Mickey (91) 54 C3d 612, 702-03 [286 CR 801].)
    • 5. Right to cautionary instructions on admissions (CALJIC 2.70/2.71) at penalty phase. CSC: Upon request, no sua sponte duty. (People v. Livaditis (92) 2 C4th 759, 782-84 [9 CR2d 72]; but see con. op. of Mosk, J.)
    • 6. Accomplice corroboration applies to evidence offered to prove specific unadjudicated crimes (People v. Easley (88) 46 C3d 712, 733-34 [250 CR 855]: accomplice corroboration inapplicable to testimony as to the present offense.)
  • 8.84.1 (¶ 3): Must Not Be Influenced by Bias, Etc [§DP-29].
    • 1. Special supplemental non-bias instruction. (Manual 513; 91 Supp 8)
    • 2. Pinpoint instruction on factually grounded sympathy. (Manual 514; 91 Supp 8-9;) CSC: Jury must consider factually grounded sympathy. (E.g., People v. Easley (83) 34 C3d 858, 875-76 [196 CR 309].) USSC: 5 members expressed doubt that as to 8th Amendment basis for this instruction but did not expressly reject the point in Saffle v. Parks (90) 494 US 484 [108 LEd2d 415; 110 SCt 1257].
    • 3. Limiting instruction on evidence as to expert’s views on death penalty. (FORECITE F 8.84.1, Inst 1; 92 Supp 172-173.) CSC: Proper on request. (People v. Mickle (91) 54 C3d 140, 196 [284 CR 511].)
    • 4. Instruction on cost and deterrence. (92 Supp 172; R&O 43:25K.) CSC: Not required sua sponte or on request absent indication that jury is considering deterrence or cost. (People v. Benson (90) 52 C3d 754, 806-07 [276 CR 827].)
  • 8.85 Penalty Trial — Inapplicable Factors [§DP-30]
    • 1. Delete inapplicable factors. CSC: Rejected. (Manual 515, 91 Supp 9, 92 Supp 173; People v. Jones (91) 53 C3d 1115, 1147 [282 CR 465]; but see, People v. Marshall (90) 50 C3d 907, 933 [269 CR 269]: no sua sponte duty to instruct on inapplicable factors but it’s the “better practice.”
    • 2. Absence of a mitigating factor does not constitute aggravation. (FORECITE F 8.85 Inst 5; Manual 516; R&O 43:15A.) CSC: No sua sponte duty. (People v. Bonin (88) 46 C3d 659, 679 [250 CR 687].) Proper on request. (People v. Melton (88) 44 C3d 713, 769 [244 CR 867].) CAVEAT: This instruction could cure (waive) Issue 1 above.
    • 3. Clarification of the phrase “if applicable.” (FORECITE F 8.85 Inst 5; Manual 516.) CSC: (See 2 above.) CAVEAT: This instruction could cure (waive) Issue 1 above.
    • 4. Factors should be labeled as aggravating or mitigating. CSC: No right on request to identify each factor as aggravating or mitigating (People v. Cox (91) 53 C3d 618, 673 [280 CR 692].) See also, People v. Benson (90) 52 C3d 754, 802 [276 CR 827]: Jurors would “readily identify” which factors are mitigating and aggravating.
  • 8.85a Circumstances of Crime and Specials [§DP-31]
    • 1. Aggravation may not be predicated on the “bare fact” that the defendant committed a murder but must be based on the circumstances surrounding the murder. (Manual 516.)
    • 2. The absence of aggravation (eg. premeditation and deliberation) is a circumstance in mitigation. (Manual 516-17; 91 Supp 10.)
    • 3. Jury may not “double count” circumstances of the offense which are also special circumstances. (FORECITE F 8.85 Inst 7; Manual 519; but see 91 Supp 10; R&O § 43:16B; 43:89.) CSC: Proper on request. (People v. Melton (88) 44 C3d 713, 768-69 [244 CR 876].)
    • 4. Lingering doubt as to guilt (Manual 517-19; 92 Supp 174; R&O § 43:25M; CACJ FORUM July/Aug. 1991 pp. 47-9.) CSC: Proper on request; no sua sponte duty. (People v. Kaurish (90) 52 C3d 648, 705 [276 CR 788]; People v. Sully (91) 53 C3d 1195, 1246 [283 CR 144]: No sua sponte duty.) USSC: No 8th Amendment right to jury consideration of lingering doubt. (Franklin v. Lynaugh (88) 487 US 164 [101 LEd2d 155; 108 SCt 2320].)
    • 5. Lingering doubt as to nature or extent of defendant’s participation. (FORECITE F 8.85 Inst 10; 92 Supp 175.) CSC: Apparently approved on request. (See FORECITE F 8.85 Inst 10.) USSC: See 4 above.
    • 6. Felony murder special circumstance should not be considered worse than any other special. (Manual 517.)
    • 7. Cautionary instruction re: victim impact. (FORECITE F 8.85 Inst 8; 92 Supp 173-4.)
    • 8. Additional clarification of jury’s duties when victim impact evidence presented. (FORECITE F 8.87 Inst 1.)
    • 9. Further guidance as to what types of circumstances of the crime are aggravating. (92 Supp 174.) CSC: Rejected (e.g., People v. Kaurish (90) 52 C3d 648, 707 [276 CR 788].)
    • 10. Jury should not consider multiple felony special circumstances based on single act or course of conduct. (Manual 519; 91 Supp 10-11.) CSC: Approved. (People v. Morris (91) 53 C3d 152, 218 [279 CR 720].)
    • 11. Limitation of evidence admitted only as to special circumstances. (R&O § 43.25C.) CSC: Approved on request. (People v. Bigelow (84) 37 C3d 731, 748 [209 CR 328].
    • 12. At the penalty retrial or when a different penalty jury is empaneled the jury should be instructed as to the meaning and scope of the guilt phase verdicts. (Manual 518.)
  • 8.85(b) Unadjudicated Violent Crimes [§DP-32]
    • *See CAVEAT (Manual 521) concerning strategic considerations relating to these issues. However there should be no strategic reason for not raising the rejected issues assuming they will likely be rejected at trial.)
    • 1. Jury should not consider any unadjudicated crimes. (Manual 519-520.) CSC: Rejected.
    • 2. Limiting instruction on purpose for which non-violent crimes may be considered. (Manual 520, 539). CSC: Upon request. (e.g. People v. McLain (88) 46 C3d 97, 113 [249 CR 630].)
    • 3. Absence of violent criminal activity is mitigating. (FORECITE F 8.85(b) Inst 1; Manual 520.) CSC: No right to identify all factors (see Checklist 8.85(d) 1 post) but not specifically rejected as to this factor.
    • 4. Limiting instruction that criminal activity may not be considered for the same purpose under factors (b) and (c). (Manual 520-521.) CSC: Approved on request. (People v. Hamilton (88) 46 C3d 123, 146 [249 CR 320].)
    • 5. The “presence or absence” language of factors (b) and (c) impermissible suggests an either/or proposition making the factor aggravation, even if prior crimes are minimal. (91 Supp 11.)
    • 6. Violent conduct which has been reduced to a conviction may not be considered for two independent purposes under (b) and (c). (Manual 520; 91 Supp 11; 92 Supp 176.) CSC: Rejected. (E.g., People v. Webster (91) 54 C3d 411, 455-56 [285 CR 31].) USSC: (See Lowenfield v. Phelps (88) 484 U.S. 231, 241-46 [98 LEd2d 568; 108 SCt 546].)
    • 7. No instruction upon elements of nonviolent portions of unadjudicated violent crimes. CSC: Upon objection. (People v. Cooper (91) 53 C3d 771, 841 [281 CR 90].)
    • 8. Specific crimes upon which prosecution is relying should be enumerated. (People v. Thompson (88) 45 C3d 86, 127 [246 CR 245].)
  • 8.85(c) Prior Felony Convictions [§DP-33]
    • 1. Instruction on elements of prior convictions upon request by defense or prosecution. (Manual 521.) CSC: Yes. (E.g. People v. Adcox (88) 47 C3d 207, 256 [253 CR 55].)
    • 2. Absence of prior convictions is mitigating. (FORECITE F 8.85(c) Inst 1; Manual 520; 92 Supp 176.) CSC: No right to identify all factors (see 8.85d 1 post) but not specifically rejected as to this factor.
    • 3. “Presence or absence” language impermissible suggests an either/or proposition making the factor aggravating even if the priors are minimal. (91 Supp 11.)
  • 8.85(d) Extreme Mental or Emotional Disturbance [§DP-34]
    • 1. “Whether or not” language violates Davenport; it should be deleted and replaced with clarifying language. (Manual 522-3; 92 Supp 177.)
    • 2. “Mental or emotional disturbance” should be defined and clarified. (Manual 523-4; 92 Supp 177; see also F. 8.42a.)
    • 3. This factor need not be proven by expert testimony. (92 Supp 176-7.) CSC: Yes. Nature of wounds may indicate extreme mental or emotional disturbance. (People v. Haskett (90) 52 C3d 210, 229-30, n 5 [276 CR 80].)
    • 4. “Extreme” violates 8th and 14th amendments by precluding consideration of less than extreme mental or emotional disturbance. (91 Supp 11; R&O § 43:23c.) CSC: No duty to give sua sponte or on request; covered by factor (k). (People v. Morris (91) 53 C3d 152, 225-26 [279 CR 720]; People v. Cox (91) 53 C3d 618, 681 [280 CR 692].) (People v. McPeters (92) 2 C4th 1148, 1192 [9 CR2d 834], USSC: Rejected. (Blystone v. Pennsylvania (90) 494 US 299 [108 LEd2d 255; 110 SCt 1078].)
    • 5. If “extreme” is not deleted from factor (d) then less than extreme mental illness, etc. should be added to factor (k). (See checklist 8.85(k) 2, post.)
    • 6. This factor should be mitigating only. (91 Supp 12; 92 Supp 176.) CSC: Rejected. No right to explicitly label a factor as mitigating. (People v. McPeters (92) 2 C4th 1148, 1192 [9 CR2d 834]; People v. Benson (90) 52 C3d 754, 802 [276 CR 827]. (People v. Cox (91) 53 C3d 618, 673 [280 CR 692].)
  • 8.85(e) Victim as Participant [§DP-35]
    • 1. “Whether or not” language violates Davenport; it should be deleted and replaced with clarifying language. (Manual 522-3; 92 Supp 177.)
    • 2. Factor (e) invites irrational speculation in violation of 8th and 14th Amendments. Factor (e) presupposes that defendant could be convicted of murder for aiding and abetting a suicide but in California this is not true. (Manual 524.)
    • 3. If factor (d) is not deleted then an instruction should be requested clarifying 2 above and telling jurors that absence of this factor cannot be considered aggravation. (Manual 515-16, 524; 91 Supp 12.)
  • 8.85(f) Moral Justification [§DP-36]
    • 1. “Whether or not” language violates Davenport; it should be deleted and replaced with clarifying language. (Manual 522-3; 92 Supp 177.)
    • 2. Objection to the term reasonable as limiting consideration of an honest but unreasonable belief. (Manual 525.) CSC: Rejected. Covered by factor k. (People v. Mickey (91) 54 C3d 612, 694 [286 CR 801].)
    • 3. In light of Mickey (see 2 above), jury should be explicitly told that unreasonable belief may be considered under factor (k). (91 Supp 12; 92 Supp 177-8.)
    • 4. This factor can only be considered in mitigation. CSC: Rejected generally as to all factors but not as to this specific factor. (People v. Cox (91) 53 C3d 618, 673 [280 CR 692].)
  • 8.85(g) Duress [§DP-37]
    • 1. “Whether or not” language violates Davenport; it should be deleted and replaced with clarifying language. (Manual 522-3; 92 Supp 177.)
    • 2. Factor (g) is an irrational criterion in violation of the 8th and 14th amendments because in all cases the jury would already have considered and rejected duress at the trial. (Manual 525-6.)
    • 3. Factor (g) should be clarified to make it clear that it concerns mitigation and not excuse. (Manual 525-526.) Note however that People v. Smith (86) 187 CA3d 666, 679 [231 CR 897] (honest but unreasonable duress may negate criminal intent) has been disapproved. (People v. Bacigalupo (91) 1 C4th 103, 125-26 [2 CR2d 335]; People v. Anderson (87) 43 C3d 1104 [240 CR 585].)
    • 4. Factor (g) should be expanded to include threats of harm to third persons. (Manual 525-526.)
    • 5. The term duress should be defined. (Manual 525-526; see also FORECITE PG II(B): technical terms must be defined sua sponte.)
    • 6. “Substantial” violates 8th and 14th Amendments by precluding consideration of less than substantial mental or emotional disturbance. (Manual 525-6; 91 Supp 12-13; 92 Supp 178.) CSC: No sua sponte duty — included in factor (k). (People v. Cox (91) 53 C3d 618, 681 [280 CR 692].) USSC: Rejected. (Blystone v. Pennsylvania (90) 494 US 299 [108 LEd2d 255; 110 SCt 1078].)
    • 7. If “substantial” is not deleted from factor (g) then “less than substantial” duress should be included under factor (k). (See Instruction Checklist 8.85(k) 2 post; see also 8.85(f) 3, ante.)
    • 8. This factor should be mitigating only. (91 Supp 12; 92 Supp 176.) CSC: (See 8.85(f) 4, above.)
  • 8.85(h) Diminished Capacity [§DP-38]
    • 1. Clarification that prior rejection of mental evidence does not preclude consideration of such evidence as a reason not to impose death. (Manual 526.)
    • 2. Clarification of (h) or (k) that mental “impairment” need not have been operative at the time of the offense and need not have caused the defendant to commit the crimes. (See FORECITE F 8.85(h) Inst 1; Manual 526.) CSC: No sua sponte duty.
    • 3. Mental disease or defect should be defined to include the particular disorder at issue. (Manual 527.) No sua sponte duty but may be required on request. (People v. Bell (89) 49 C3d 502, 550 [262 CR 1].)
    • 4. Anti social personality as a mitigating circumstance. (Manual 527; 91 Supp 13.)
    • 5. Insanity as mitigating factor. (92 Supp 178.) CSC: Rejected. (People v. Haskett (90) 52 C3d 210, 232-34 [276 CR 80] — but 8th/14th Amendment issue remains. (See dissent 52 C3d at 252, fn 1.)
    • 6. Mental illness or defect may not be considered as aggravation. (Manual 527.) CSC: (See checklist 8.85(f) 7 ante.)
  • 8.85(i) Age [§DP-39]
    • 1. Death eligibility begins at age 18. (FORECITE F 8.85(i) Inst 1; Manual 528, 91 Supp 14.)
    • 2. Jury should consider psychological immaturity as mitigating factor. (FORECITE F 8.85(i) Inst 2; 92 Supp 179; R&O § 43.25E.)
    • 3. Jury may not infer that the life of an individual more advanced in age is worth less than that of a younger individual. (92 Supp 179.) CSC: Disapproved DA argument to this effect.
    • 4. Modification to provide that age may only be considered as mitigation. (Manual 528, 535; 91 Supp 14.) CSC: Rejected. USSC: See, Thompson v. Oklahoma (88) 487 US 815, 834 [101 LEd2d 702; 108 SCt 2687] (plurality opinion): recognizing importance of treating the defendant’s youth as a mitigating factor.
    • 5. Age factor is unconstitutional because it has become an “all purpose sentencing aggravator.” (Manual 527, 92 Supp 179, 91 Supp 14.) CSC: Rejected. (People v. Edwards (91) 54 C3d 787, 844 [1 CR2d 696].)
    • 6. Objection to Lucky definitions of age as unconstitutionally vague. (Manual 528; 91 Supp 14.)
  • 8.85(j) Accomplice and Limited Participation [§DP-40]
    • 1. Constitutional challenge. (Manual 528.)
    • 2. Clarification to distinguish between mitigation and excuse. (Manual 528.)
    • 3. Jury should be instructed on lesser sentence given to accomplice. (Manual 528, 91 Supp 15, 92 Supp 179.) CSC: No right even on request. (People v. Morris (91) 53 C3d 152, 225 [279 CR 720].) USSC: Accomplice leniency may be valid non-statutory mitigation. (See FORECITE F 8.85 Inst 11.)
  • 8.85(k) Any Other Mitigation [§DP-41]
    • 1. Clarify language to make sure full scope of the factor is understood to require consideration of any mitigating evidence. (Manual 529-30; 91 Supp 16; R&O § 43.23.) Note R&O § 43.22A erroneously requires that mitigating factors be established by “substantial evidence.” (See FORECITE proposed instruction F 8.85a Inst 1; Manual 91 Supp 16.)
    • 2. Pinpoint specific mitigating circumstances. (Manual 531-5; 91 Supp 16-17; 92 Supp 180-82.) Pinpoint specific facts upon which plea for sympathy is based. (R&O § 43.23B.) CSC: Rejected as to assertedly argumentative instruction. (People v. Gordon (90) 50 C3d 1223, 1276-77 [270 CR 451]: rejecting argument based on state right to pinpoint instruction (Sears), 8th Amendment (Lockett) and 14th Amendment due process (imbalance created by giving prosecution pinpoint instruction.) USSC: Unresolved but right to instruction suggested by Penry v. Lynaugh (89) 492 US 302 [106 LEd2d 256; 109 SCt 2934].)
    • 3. Expressly set forth the central role of sympathy and pity in the penalty determination. (Manual 536; 91 Supp 17; R&O § 43:23B) CSC: No sua sponte duty. (People v. Bonin (88) 46 C3d 659, 708 [250 CR 687]; see Checklist 8.88 ¶ 3, 19, post.)
    • 4. Sympathy may be based on the defendant’s background and/or courtroom appearance. (Manual 537; 91 Supp 17.) USSC: May be rejected. (91 Supp 17.)
    • 5. Effect of death verdict on victim’s family. CSC: Rejected. (People v. Cooper (91) 53 C3d 771, 844 [281 CR 90].)
    • 6. Jury may grant mercy without finding sympathy. (R&O § 42.23D.) CSC: Rejected. (People v. McPeters (92) 2 C4th 1148, 1195 [9 CR2d 834]; see also People v. Wright (90) 52 C3d 367, 441-43 [276 CR 731].)
  • 8.86/8.87 Proof of Other Crimes. (See also 8.85(b) & (c)) [§DP-42].
    • 1. Instruction on elements of unadjudicated priors phrased in terms of penalty phase issues. Note CAVEAT re: Strategic considerations. (Manual 538-9.) CSC: Upon request by either party.
    • 2. Limiting instruction when other crimes evidence admitted for purpose other than aggravation. (Comment to CALJIC 8.85(b).)
    • 3. Objection to CALJIC 8.87 and request for supplementary language requiring jury to determine whether or not the unadjudicated crimes involved force or violence. (FORECITE F 8.87 Inst 2; Manual 539.)
    • 4. Express prohibition against considering non-criminal non-statutory aggravation. (Manual 540; R&O § 43:16.)
    • 5. BRD instruction required as to prior felony convictions. (Manual 538.)
    • 6. BRD instruction required as to all aggravating factors. (Manual 538-540; R&O § 43:17.)
    • 7. Juror unanimity as to unadjudicated violent crimes. (See FORECITE F 8.87 Inst 2; Manual 541.)
  • 8.88 ¶ 2: Concluding [§DP-43]
    • 1. Jury need not find mitigation to impose life. (Manual 542-3; 91 Supp 18; 92 Supp 83-4.) CSC: Yes. (People v. Duncan (91) 53 C3d 955, 978-79 [281 CR 273].)
    • 2. Modify CALJIC 8.88 to highlight importance of factor (k) evidence. (Manual 542-3.)
    • 3. Jury may exercise mercy. CSC: Rejected. (People v. McPeters (92) 2 C4th 1148, 1195 [9 CR2d 834]: no right to “pure” mercy instruction.)
    • 4. Mitigation may be considered if there is any evidence to support it. (FORECITE F 8.85(a) Inst 1; Manual 542.) USSC: State may require mitigation to be proven by a preponderance of the evidence. (Walton v. Arizona (90) 497 US 639 [111 LEd2d 511, 526-27; 110 SCt 3047].)
    • 5. Jurors need not be unanimous to consider mitigation. (Mills v. Maryland (88) 486 US 367 [100 LEd2d 384; 108 SCt 1860]; FORECITE F 8.85 Inst 1; Manual 541; R&O § 43:25G.) CSC: No right to specific instruction even on request. (People v. Breaux (91) 1 C4th 281, 314 [3 CR2d 81]; but see 8.88 Inst 4 for proposed instruction preserving 8th Amendment issue for federal review.)
  • 8.88 ¶ 3: Concluding [§DP-44]
    • 1. Objection to open ended definition of aggravation in CALJIC and any definition framed in terms of “bad” things. (91 Supp 19-20; Compare R&O § 43:25B).)
    • 2. CALJIC definition of aggravation and mitigation should be clarified and expanded. (Manual 544-6.)
    • 3. Jurors need not be unanimous to consider mitigation. (Mills v. Maryland (88) 486 US 367 [100 LEd2d 384; 108 SCt 1860]; FORECITE F 8.85 Inst 1; Manual 541; R&O § 43:25G.) CSC: No right to specific instruction even on request. (People v. Breaux (91) 1 C4th 281, 314 [3 CR2d 81].)
    • 4. Jury should understand that evidence does not have to be good to be mitigating. (91 Supp 19; Compare R&O § 43.25B.)
    • 5. Term “warrants death” does not convey requirement that death be “appropriate.” (Manual 550; 91 Supp 20.) CSC: (People v. McPeters (92) 2 C4th 1148, 1193-94 [9 CR2d 834]: instruction adequate.)
    • 6. CALJIC language creates a presumption in favor of death. (Manual 548; 91 Supp 20; 92 Supp 187; 92 Supp 187.) CSC/USSC: Argument that CALJIC is defective rejected by California and U.S. Supreme Courts. However, no case has approved refusal of clarifying instruction such as proposed in R&O § 43:25L.
    • 7. The term “substantial” is unconstitutionally vague and should be clarified. (92 Supp 186; 91 Supp 20; Manual 549-50.) CSC: Rejected. (People v. McPeters (92) 2 C4th 1148, 1194 [9 CR2d 834].)
    • 8. If aggravation and mitigation are evenly balanced jury should vote for life. (92 Supp 185.)
    • 9. Even if aggravation outweighs mitigation jury may still vote for life. (92 Supp 187.)
    • 10. Language of statute and CALJIC 8.88 fail to adequately convey that aggravation must outweigh mitigation. (Manual 551; 91 Supp 20-21.)
    • 11. 8th Amendment requires all mitigation to be weighed together. (91 Supp 21.)
    • 12. Weight to be given to the factors is a matter for each juror to determine. One mitigating factor can outweigh several aggravating factors. (R&O § 43.24A.)
    • 13. Each juror retains ultimate responsibility to determine appropriate punishment. (R&O § 43:25D.)
    • 14. Reasonable doubt as to penalty requires life. (R&O § 43:25A, People v. Cancino (37) 10 C2d 223, 230 [73 P2d 1180]. CSC: Rejected. (People v. McPeters (92) 2 C4th 1148, 1194 [9 CR2d 834].)
    • 15. Jury should not consider defendant’s failure to testify at the penalty trial. (R&O § 43:25I.) CSC: Not required sua sponte. (People v. Morris (91) 53 C3d 152, 226 [279 CR 720].)
    • 16. Cautionary instruction regarding defendant’s death preference testimony. (R&O § 42:25J.) CSC: Required on request but not sua sponte. (People v. Guzman (88) 45 C3d 915, 962 [248 CR 467].)
    • NOTE: Regarding the general issue of dealing with the client’s “death preference” — see article by David D. Davis in June 1992 Champion (NACDL), “Capital Cases: When The Defendant Wants To Die.” [A copy of this article is available to FORECITE subscribers. Ask for Article Bank # A-68.]
    • 17. Written findings as to aggravation found by jury. (92 Supp 182, 184-5.) CSC: Rejected. (People v. Taylor (90) 52 C3d 719, 749 [276 CR 391].)
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