At the sentencing phase of a capital case the jury may properly consider evidence of lingering or residual doubt as a mitigating factor. However,
… there is no constitutional right to instructions on lingering doubt. [Citations.] Instructions to consider the circumstances of the crime [citations], together with defense argument highlighting the question of lingering or residual doubt, suffice to properly put the question before the penalty jury. [Citation]. (People v. Streeter (2012) 54 Cal.4th 205, 265-66, internal punctuation omitted); see also People v. Musselwhite (1998) 17 C4th 1216, 1273, [specific instruction on lingering doubt is not required, even on request, because lingering doubt is encompassed within the catch-all factor “k” language.].)
And more recently the Court has continued to reject defense arguments that a lingering doubt should be given whether requested or not. (See People v. McDaniel (Aug. 26, 2021, S171393) [pp. 1737] [“the circumstances of this case do not warrant departure from our precedent holding that the lingering doubt instruction is not constitutionally required. [Citation]”].)
This line of cases is founded on the assumption that the jurors will follow and abide by defense counsel’s argument that lingering doubt as to guilt is a mitigating factor. Thus, if a request for specific instruction (see e.g., F 763.3) ***LINK*** is denied, counsel should be free to make an argument to the jury such as the following:
The California Supreme Court has ruled that lingering doubt as to guilt is a mitigating factor which you may consider in deciding which penalty to impose. You have not been specifically instructed upon lingering doubt as a mitigating factor because the court has ruled that it is included in the general mitigation instruction. Therefore, the law requires you to read the general mitigation instruction to include lingering doubt as a potential mitigating factor which you should consider.
(See also FORECITE F 200.5 Inst 2; PG VI(C)(10); PG I(F).)
It might also be beneficial to inform the jury that this is why a more specific instruction on this point was refused. Visuals with the crucial language might also be useful. (See also
F 200.5 Inst 2 Counsel’s Argument That A Specific Rule Is Included In A General Instruction
In Musselwhite, the court said: “defendant provides no explanation why the factor (k)—derived instruction that was given to the jury—failed to convey the notion of residual doubt in his case.” [Original emphasis.]
Responses to this position could include the following:
- Evidence could be presented as to the empirical studies which have proven that jurors do not in fact fully understand the currently utilized penalty phase instructions. (See, PG II(K).)
- Since the Supreme Court has concluded that the lingering doubt factor is included within factor “k,” counsel should be free to rely on the Supreme Court’s position during argument. Thus, counsel might argue: “The California Supreme Court has ruled that lingering doubt as to guilt is a mitigating factor which you may consider in deciding which penalty to impose. You have not been specifically instructed upon lingering doubt as a mitigating factor because the court has ruled that it is included in the general mitigation instruction. Therefore, the law requires you to read the general mitigation instruction to include lingering doubt as a potential mitigating factor which you should consider.” (See FORECITE PG VI(C)(10); see also PG I(F).) It might also be beneficial to inform the jury that this is why a more specific instruction on this point was refused. Visuals with the crucial language might also be useful. (See also FORECITE F 200.5 Inst 2.)
By promoting a reliable, non-arbitrary, and individualized sentencing determination, 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., Sochor v. Florida (1992) 504 US 527 [119 LEd2d 326; 112 SCt 2114]; Penry v. Lynaugh (1989) 492 US 302, 318 [106 LEd2d 256; 109 SCt 2934]; Clemons v. Mississippi (1990) 494 US 738 [108 LEd2d 725; 110 SCt 1441]; McCleskey v. Kemp (1987) 481 US 279 [95 LEd2d 262; 107 SCt 1756].)
F 763.3 (Factor a) Inst 9 (a-e) Lingering Doubt
F 763.3 (Factor a) Inst 10 Definition Of Lingering Doubt
F 763.3 (Factor a) Inst 11 Lingering Doubt As To Extent Of Defendant’s Guilt
F 763.3 (Factor a) Inst 12 Instruction That Lingering Doubt Is Included In Factor (a) and/or Factor (k
F 200.5 Inst 2 Counsel’s Argument That A Specific Rule Is Included In A General Instruction
*Add to CC 200:
If counsel argues that a legal rule is included in one of the instructions, you must accept and abide by counsel’s argument as a correct statement of the law unless it conflicts with my instructions or I sustain an objection to counsel’s argument on that point. Thus, even if there is no specific instruction on the rule argued by counsel, you must treat it as the equivalent of an instruction to be considered and followed, if applicable, along with all the other instructions.
We have previously held that “`[t]here is no constitutional entitlement to instructions on lingering doubt.’ ( People v. Earp (1999) 20 Cal.4th 826, 903 [ 85 Cal.Rptr.2d 857, 978 P.2d 15].) Instructions to consider the circumstances of the crime (§ 190.3, factor (a)) and any other circumstance extenuating the gravity of the crime ( id., factor (k)), together with defense argument highlighting the question of lingering or residual doubt, suffice to properly put the question before the penalty jury.” ( People v. Demetrulias (2006) 39 Cal.4th 1, 42 [ 45 Cal.Rptr.3d 407, 137 P.3d 229].) The court here instructed the jury to consider the circumstances of the crime and any other circumstances extenuating the gravity of the crime. Defense counsel gave a lengthy argument about lingering doubt, in which he directly stated “lingering doubt [is] . . . an aspect of mitigation.” Defendant fails to convince us that the jury was not adequately informed that they could consider lingering doubt as a factor in mitigation.
People v. Hamilton (2009) 45 Cal.4th 863, 948-49
***
( People v. Hamilton, supra, 45 Cal.4th at p. 948, 89 Cal.Rptr.3d 286, 200 P.3d 898.)
The court here instructed the jury to consider the circumstances of the crime and any other circumstances extenuating the gravity of the crime. Defendant presented extensive evidence of lingering doubt as to his state of mind at the time he committed the crime, which was the only disputed issue open to lingering doubt. (Compare with People v. Gay, supra, 42 Cal.4th at pp. 1223–1226, 73 Cal.Rptr.3d 442, 178 P.3d 422 [prejudicial error to exclude lingering doubt evidence contesting defendant’s guilt as shooter when coupled with court’s instruction to jury to disregard defense counsel’s opening statement that it would hear lingering doubt evidence and instruction on conclusiveness of prior guilt jury’s findings].) Defense counsel extensively argued lingering doubt during opening and closing arguments, in which he urged the jury to reconsider defendant’s guilt and his state of mind. Thus, contrary to defendant’s claim, the trial court’s rulings did not remove the concept of lingering doubt from the jury’s consideration.
People v. Streeter (2012) 54 Cal.4th 205, 265-66
n the penalty phase, the prosecution and defense introduced the guilt-phase eye-witness testimony and ballistics evidence that McDaniel asserts is relevant to lingering doubt. In closing argument, defense counsel emphasized the ballistics evidence from the gun linked to Harris to suggest that McDaniel did not cause the “mayhem” alone. Defense counsel also referenced inconsistencies and gaps in the testimony of Angel Hill and Derrick Dillard to argue there was insufficient evidence that McDaniel himself created all the “carnage.”
Next, McDaniel argues that the trial court repeatedly instructed the jury that it “must accept” the guilt phase jury’s finding that McDaniel had personally killed Anderson, which left no room for them to consider lingering doubt. Compounding the error of this instruction, he claims, was the prosecutor’s argument that McDaniel had personally killed Anderson, which relied heavily on an appeal to the findings of the prior jury. McDaniel’s reliance on People v. Gay (2008) 42 Cal.4th 1195, 1224, where the trial court instructed the jury that the defendant’s responsibility had been “conclusively proven and that there would be no evidence presented in this case to the contrary, ” is inapposite. In Gay, the error that the trial court’s statements compounded was the trial court’s limitation of evidence related to lingering doubt in the penalty phase. (Ibid.) As discussed above, ample evidence of this lingering doubt was introduced. Moreover, a statement that the jury “must” accept the guilt-phase findings is qualitatively different than a statement that the defendant’s guilt has been “conclusively proven” and that no evidence would be introduced to the contrary. (Ibid.) Nor did the prosecutor’s statements that “the verdicts have significance in this case, ladies and gentleman, ” preclude the jury from considering lingering doubt. These comments merely conveyed the fact that the prior jury found McDaniel to be the actual shooter.
(Streeter, supra, 54 Cal.4th at p. 265; Hamilton, supra, 45 Cal.4th at p. 948.)
F 763.3 (Factor a) Inst 9 (a-e) Lingering Doubt
*Add to CC 763:
Alternative a:
The adjudication of guilt is not infallible and any lingering doubts you entertain on the question of guilt may be considered by you in determining the appropriate penalty, including the possibility that at some time in the future, facts may come to light which have not yet been discovered.
Alternative b:
It may be considered as a factor in mitigation if you have a lingering doubt as to the guilt of the defendant.
Alternative c:
Although proof of guilty beyond a reasonable doubt has been found, you may demand a greater degree of certainty for the imposition of the death penalty. The adjudication of guilt is not infallible and any lingering doubts you entertain on the question of guilt may be considered by you in determining the appropriate penalty, including the possibility that at some time in the future, facts may come to light which have not yet been discovered.
Alternative d:
Each individual juror may consider as a mitigating factor residual or lingering doubt as to whether defendant intentionally killed the victim. Lingering or residual doubt is defined as the state of mind between beyond a reasonable doubt and beyond all possible doubts.
Thus, if any individual juror has a lingering or residual doubt whether the defendant intentionally killed the victim, he or she must consider this as a mitigating factor and assign to it the weight you deem appropriate.
Alternative e:
Each individual juror may consider as a mitigating factor residual or lingering doubt as to whether defendant killed the victim. Lingering or residual doubt is defined as the state of mind between beyond a reasonable doubt and beyond all possible doubts.
Thus, if any individual juror has a lingering or residual doubt about whether the defendant killed the victim, he or she must consider this as a mitigating factor and assign to it the weight you deem appropriate.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Lingering Doubt Instruction—It is clearly proper to rely on lingering doubt as a factor in mitigation. (People v. Thompson (1988) 45 C3d 86; but see Franklin v. Lynaugh (1988) 487 US 164 [101 LEd2d 155; 108 SCt 2320], in which the United States Supreme Court stated that the 8th Amendment does not mandate consideration of lingering doubt.)
However, while there is no requirement of an instruction on lingering doubt, it is a proper consideration for a jury. (People v. Brown (2003) 31 C4th 518; see also People v. Johnson (1992) 3 C4th 1183, 1251-52, concurring opinion of Mosk (with Kennard) [recognizing that the trial court is required to expressly instruct on “lingering doubt” when “there is a reasonable likelihood that, in the absence of such an advisement, the jury will labor under a misconception in this regard”]. (Johnson, 3 C4th at 1261, Mosk Conc. Op.) However, Justice Mosk also expressed the view that CJ 8.85 is “inclusive” of “lingering doubt.” (Id. at 1262, fn 4.)
See also FORECITE F 763.3 Inst 11.
