SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 763.11 Death Penalty: Factors to Consider—Factor j: Minor Participation By Accomplice
F 762.12 Death Penalty: Factors to Consider—Factor k: “CatchalL”
TABLE OF CONTENTS
F 763.11 Death Penalty: Factors to Consider—Factor j: Minor Participation By Accomplice
F 763.11 (Factor j) Inst 1 (a & b) Role Of Others In The Crime
F 763.11 (Factor j) Inst 2 Vicarious Liability Not Applicable To Determination Of Sentence
F 762.12 Death Penalty: Factors to Consider—Factor k: “Catchall”
F 763.12 (Factor k) Inst 1 Failure To Clearly Allow Consideration Of Prospective Mitigation
F 763.12 (Factor k) Inst 2 Failure To Clearly Allow Consideration Of The Defendant’s Good Qualities
F 763.12 (Factor k) Inst 3 Jury Not Required To “Reach A Decision“
F 763.12 (Factor k) Inst 4 Jurors Should Consider Any Sympathetic Circumstances
F 763.12 (Factor k) Inst 5 Consideration Of Potential For Rehabilitation And For Leading A Useful Life In Prison
F 763.12 (Factor k) Inst 6 Mercy Can Itself Be A Mitigating Factor
F 763.12 (Factor k) Notes
F 763.12 (Factor k) Note 1 Consideration Of Remorse Under Factor K
Return to Series 700 Table of Contents.
F 763.11 Death Penalty: Factors To Consider—Factor j: Minor Participation By Accomplice
F 763.11 (Factor j) Inst 1 (a & b) Role Of Others In The Crime
*Add to CC 763, Factor j, as follows:
Alternative a:
The defendant’s role in the crime may be sufficiently minor to mitigate under this factor even if (his/her) participation was not sufficiently minor to constitute a defense to the charge.
Alternative b:
Consider whether the defendant’s participation in the crime was relatively minor, regardless of whether such minor participation would constitute a defense to the charge.
[Source: Pattern Jury Instructions—Eleventh Circuit—2003 OI 88.4.]
Points and Authorities
The defendant’s role in the crime can be minor even if it would not constitute a defense. Thus, CALCRIM 763 (Factor j) should be modified to assure the jurors understand this. (See generally Lockett v. Ohio (1978) 438 US 586 [98 SCt 2954; 57 LEd2d 973].)
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
F 763.11(Factor j) Inst 2 Vicarious Liability Not Applicable To Determination Of Sentence
*Add to CC 763, Factor j, as follows:
At the guilt phase, you were told that [those who directly and actively commit the crime and those who aid and abet the crime are equally guilty] [and] [a conspirator is liable for the natural and probable consequences of any act of a co-conspirator to further the object of the conspiracy]. These principles of [aiding and abetting] [and] [conspiracy] are not applicable to the determination of which sentence shall be imposed upon defendant __________. Your sentencing determination must be based entirely upon the individual culpability and characteristics of defendant __________ as set forth in these penalty phase instructions.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Need For Instruction—When guilt is predicated upon vicarious liability, the jury is instructed that a person who aids and abets the perpetrator of the crime is “equally guilty” of the crime committed by the perpetrator. (CC 400; but see FORECITE F 401.5 Inst 7.) A similar instruction is given with regard to a conspirator who participates in the conspiracy but does not personally commit the target offense. (CC 417.) These principles of vicarious liability are inapplicable to the penalty determination which must be based upon the individual culpability and characteristics of the defendant. It is “well established” that the 8th and 14th Amendments require “individualized sentencing determinations in death penalty cases.” (Stringer v. Black (1992) 503 US 222 [117 LEd2d 367, 378-39; 112 SCt 1130]; Clemons v. Mississippi (1990) 494 US 738, 752 [108 LEd2d 725; 110 SCt 1441].) The 8th and 14th Amendments allow a sentence of death to be imposed only upon a defendant “shown to be culpable due to his own actions, intentions, and expectations, not those of his cohorts.” (Green v. State (1984) 682 SW2nd 271, 287 (applying Enmund v. Florida (1982) 458 US 782 [73 LEd2d 1140; 102 SCt 3368]); see also, Tison v. Arizona (1987) 481 US 137 [95 LEd2d 127; 107 SCt 1676]; Martinez v. State (1994) 899 SW2d 655, 657.) Hence, the fact that the defendant played a lesser role in the offense should be given mitigating consideration and any aggravating facts which relate to the accomplice and not the defendant should not be used as aggravating evidence against the defendant.
CC 763 seeks to convey this point to the jury with the following language: “You shall consider, take into account and be guided by the following factors, if applicable … (j) whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.”
This instruction is inadequate for several reasons. First, this instruction does not address conspiracy at all. Second, to the extent that it addresses aiding and abetting, it does not specifically inform the jury that the “equally guilty” concept should not be considered in determining the penalty. Third, the instruction is specifically limited to situations where the defendant’s participation in the commission of the offense was “relatively minor.” This unnecessarily limits the jury’s consideration of the extent to which the defendant actually participated in the offense. For example, the defendant may have actually participated in a robbery in which the codefendant was the triggerman. Under these circumstances, the jury might not consider that the defendant’s participation was “relatively minor” and, therefore, under the current CALCRIM instruction, would not give mitigating effect to the fact that the accomplice was the triggerman. Hence, CC 763 (factor j) should be modified to inform the jury to consider all aspects of the relative participation of the defendant and the accomplice in order to reliably correlate the appropriate sentence to the defendant’s actual participation. (In this regard it should be noted that “factor (k)”—the “catch all” factor—does not encompass the concept discussed herein because it merely informs the jury to consider “any other circumstances which extenuate the gravity of the crime….” Thus, the fact that the defendant was not the triggerman does not extenuate the gravity of the crime—the crime is just as severe regardless of who pulled the trigger—and, therefore, under factor (k), the jury is not told to consider any circumstances which minimized the defendant’s culpability for that crime.)
Accordingly, CC 763 should be replaced and/or supplemented in order to assure that a reliable, individualized sentence is imposed in accord with the 8th Amendment of the federal constitution.
See also, FORECITE F 763.3 (Factor a) Inst 11 [lingering doubt as to extent of defendant’s guilt].
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 13.5 [Fair And Reliable Sentencing Determination]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 8.85 Inst 14.
F 763.12 Death Penalty: Factors To Consider—Factor k: “Catchall”
F 763.12 (Factor k) Inst 1 Failure To Clearly Allow Consideration Of Prospective Mitigation
*Modify CC 763, Factor k, as follows [added language is underlined; deleted language is stricken]:
Any other circumstance factor, whether related to these charges or not, that:
1. Lessens the gravity of the crime[s] even though the circumstance is not a legal excuse or justification. In reaching your decision, you may consider;
OR
2. Makes you feel sympathy or compassion for the defendant or anything you consider to be a mitigating factor, regardless of whether it is one of the factors listed above.
OR
3. Shows something about the defendant’s background, personality or character that you consider to be mitigating [even if based on [prospective consideration] [future conduct]] [such as (his/her) alleged capacity to lead a productive life in prison]
OR
4. Anything else you consider to be mitigating.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—The jury must be free to consider any relevant mitigating factor. (See Lockett v. Ohio (1978) 438 US 586 [57 LEd2d 973; 98 SCt 2954].) However, CC 763, Factor (k) fails to assure that the jurors will consider prospective factors such as the defendant’s ability to lead a productive life in prison. This is so because CC 763(k) in context with Factors (a)-(j) implies that mitigation is something which “lessons the gravity of the crime(s).” As with Factor (k), Factors (a) – (j) concern either the crime itself or the defendant’s prior criminal acts or conviction. Hence, even though the second sentence of CC 763(k) allows the jurors to consider “anything you consider to be a mitigating factor” there is nothing in any of the other mitigating factor language, including the first sentence of CC 763(k) that suggests a “mitigating factor” can be based on prospective considerations such as leading a productive life in prison.
“Circumstances” vs. “Factor”—The term “circumstances” furthers the misconception that Factor (k) only relates to present or past events and not to prospective factors.
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
F 763.12 (Factor k) Inst 2Failure To Clearly Allow Consideration Of The Defendant’s Good Qualities
*Modify CC 763, Factor k, as follows [added language is underlined; deleted language is stricken]:
Any other circumstance factor, whether related to these charges or not, that:
1. Lessens the gravity of the crime[s] even though the circumstance is not a legal excuse or justification. In reaching your decision, you may consider;
OR
2. Makes you feel sympathy or compassion for the defendant or anything you consider to be a mitigating factor, regardless of whether it is one of the factors listed above.
OR
3. Shows something about the defendant’s background, personality or character that you consider to be mitigating [even if based on non-crime related factors such as, but not limited to, good acts committed by the defendant as a child] [___________].
OR
4. Anything else you consider to be mitigating.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—The jury must be free to consider any relevant mitigating factor. (See Lockett v. Ohio (1978) 438 US 586 [57 LEd2d 973; 98 SCt 2954].) However, CC 763, Factor (k) fails to assure that the jurors will consider factors such as positive acts committed by the defendant and positive, redeeming aspects of his or her background, personality or character. This is so because CC 763(k) in context with Factors (a) – (j) implies that mitigation is something which “lessons the gravity of the crime(s).” As with Factor (k), Factors (a) – (j) concern either the crime itself or the defendant’s prior criminal acts or conviction. Hence, even though the second sentence of CC 763(k) allows the jurors to consider “anything you consider to be a mitigating factor” there is nothing in any of the other mitigating factor language, including the first sentence of CC 763(k) that suggests a “mitigating factor” can be based on considerations such as positive acts committed by the defendant and positive, redeeming aspects of his or her background, personality or character.
“Circumstances” vs. “Factor”—The term “circumstances” furthers the misconception that Factor (k) only relates to present or past events and not to positive acts committed by the defendant and positive, redeeming aspects of his or her background, personality or character.
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
F 763.12 (Factor k) Inst 3Jury Not Required To “Reach A Decision”
*Modify CC 763, Factor (k), sentence 2 as follows [added language is underlined; deleted language is stricken]:
In attempting to reaching your decision, you may consider sympathy or compassion for the defendant or anything you consider to be a mitigating factor, regardless of whether it is one of the factors listed above.
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 763.12 (Factor k) Inst 4 Jurors Should Consider Any Sympathetic Circumstances
*Add to CC 763, Factor (k):
You must consider any mitigating or sympathetic circumstances of the crime, and of defendant’s character, background, history, or mental or physical condition.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Need For Instruction—The above language was included in the 2005 draft (702 ADP) but deleted, without explanation, from the final version. Without this language, important mitigating circumstances may not be considered by the jurors in violation of the 8th and 14th Amendments. “It is not enough simply to allow the defendant to present mitigating evidence to the sentencer.” (Penry v. Lynaugh (1989) 492 US 302, 319 [106 LEd2d 256; 109 SCt 2934].) Rather, the trial judge’s instructions must convey “that the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence.” (Buchanan v. Angelone (1998) 522 US 269, 276 [139 LEd2d 702; 118 SCt 757].)
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 13.5 [Fair And Reliable Sentencing Determination]
FORECITE CG 13.11 [Jury Must Consider Mitigating Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 763.12 (Factor k) Inst 5 Consideration Of Potential For Rehabilitation And For Leading A Useful Life In Prison
*Add to CC 763:
Evidence that the defendant has the potential to be rehabilitated and to lead a useful life in prison may be considered as mitigation.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—See Brown v. Payton (2005) 544 US 133 [161 LEd2d 334; 125 SCt 1432] [jurors entitled to consider post-crime mitigation]; see also Lockett v. Ohio (1978) 438 US 586 [98 SCt 2954; 57 LEd2d 973]; People v. Schmeck (2005) 37 C4th 240, 302 [similar instruction given].)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 13.11 [Jury Must Consider Mitigating Evidence]
F 763.12 (Factor k) Inst 6 Mercy Can Itself Be A Mitigating Factor
*Add to CC 763
The appropriateness of the exercise of mercy can itself be a mitigating factor you may consider.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Mercy Instruction – See Kansas v. Marsh (2006) 548 US 163 [165 LEd2d 429; 126 SCt 2516, 2526 and fn. 3] [observing that mercy instruction “forecloses the possibility of Furman-type error . . .”]; People v. Carter (2003) 30 C4th 1166 fn 25.)
See also FORECITE F 8.85 Inst 1; F 8.85 Inst 17; F 8.85 Inst 19.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 13.11 [Jury Must Consider Mitigating Evidence]
F 763.12 (Factor k) Notes
F 763.12 (Factor k) Note 1 Consideration Of Remorse Under Factor K
See FORECITE F 763.13 Note 1. See also FORECITE F 763.13 for instructions on remorse/lack of remorse.
