CC 763 instructs the jurors to consider, inter alia, the following factors in deciding whether to impose a death judgement:
(b) Whether or not the defendant has engaged in violent criminal
activity other than the crime[s] of which the defendant was
convicted in this case. Violent criminal activity is criminal activity
involving the unlawful use, attempt to use, or direct or implied
threat to use force or violence against a person. [The other violent
criminal activity alleged in this case will be described in these
instructions.]
(c) Whether or not the defendant has been convicted of any prior
felony other than the crime[s] of which (he/she) was convicted in
this case.
When the prosecution alleges that one or both of these factors is present it must prove the existence of the prior criminal activity and/or conviction(s) beyond a reasonable doubt. (See People v. Robertson (1982) 33 Cal.3d 21, 53–55; People v. Davenport (1985) 41 Cal.3d 247, 281.)
CC 764 and CC 765 purport to instruct on these requirements, inter alia, as follows:
CC 764 [para 4]:
Each of you must decide for yourself whether the People have proved that the defendant committed an alleged crime. You do not all need to agree whether an alleged crime has been proved. If any juror individually concludes that an alleged crime has been proved, that juror may give the evidence whatever weight he or she believes is appropriate. On the other hand, if any juror individually concludes that an alleged crime has not been proved, that juror must disregard the evidence completely. [Emphasis added.]
CC 765 [para 2]:
The People must prove (this/these) allegation[s] beyond a reasonable doubt. If you have a reasonable doubt whether (the defendant/<insert name of defendant>) was convicted of (the/an) alleged crime, you must completely disregard any evidence of that crime. [Emphasis added.]
These instructions violate fundamental 8th Amendment principles because they imply that the prosecution’s failure to prove the allegation –which can itself be a mitigating factor — is not to be considered by the jury. (i.e., CC 764: “if any juror individually concludes that an alleged crime has not been proved, that juror must disregard the evidence completely” and CC 765: “If you have a reasonable doubt whether (the defendant/<insert name of defendant>) was convicted of (the/an) alleged crime, you must completely disregard any evidence of that crime.”
In other words, the CC instructions erroneously fail to permit the jurors to consider the prosecution’s failure of proof as mitigating contrary to the established rule 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]” (People v. Pearson (2013) 56 Cal.4th 393, 413; see also People v. Bacigalupo (1991) 1 C4th 103, 145-46 (Mosk, J. concurring [absence of other violent criminal activity and/or prior felony convictions “plainly is mitigating”]; People v. Bonillas (1989) 48 C3d 757, 793 [absence of premeditation and deliberation is mitigating].)
As shown above, the aggravating factors (B) and (C) are absent as a matter of law unless they have been proved beyond a reasonable doubt (See Robertson and Davenport, supra), It follows that regardless of whether or not the defendant has affirmatively proved the “absence” of the alleged criminal activity and/or felony conviction, the inability of the prosecution to meet its burden of proof is itself a mitigating factor. (See People v. Pearson, supra.)
In sum, the CC instructions violate the 8th amendment which requires that the jury be adequately instructed upon mitigating factors. (See Lockett v. Ohio (78) 438 US 586; see also Payne v. Tennessee (1991) 501 U.S. 808, 822 [“We have held that a State cannot preclude the sentencer from considering `any relevant mitigating evidence’ that the defendant proffers in support of a sentence less than death …].)
Thus. the CC language should be modified/supplemented to preclude consideration of unproved crimes and convictions as aggravation but at the same time to permit the prosecution’s failure of proof as mitigation. (See e.g, samples below.)
Sample Instruction 1:
Modify last sentence of CC 764, paragraph 4, to provide as follows [added language is italicized]:
On the other hand, if any juror individually concludes that an alleged crime has not been proved, that juror must disregard the evidence completely and not consider it as an aggravating factor. However, the absence of proof beyond a reasonable doubt that the defendant committed an alleged crime and/or any affirmative evidence that he did not commit the crime is a mitigating factor.
Sample Instruction 2:
Modify last sentence of CC 765, paragraph 2, to provide as follows [added language is italicized]:
If you have a reasonable doubt whether (the defendant/<insert name of defendant>) was convicted of (the/an) alleged crime, you must completely disregard any evidence of that crime and not consider it as an aggravating factor. However, the absence of proof beyond a reasonable doubt that the defendant was convicted of (the/an) alleged crime is a mitigating factor.
