SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 763.3 Death Penalty: Factors to Consider—Factor a: Circumstances Of The Offense
TABLE OF CONTENTS
F 763.3 (Factor a) Inst 1 Victim Impact: Limited To Damage Defendant Knew Or Should Have Known He Was Doing
F 763.3 Inst 2 (a-d) Victim Impact: Cautionary Instruction
F 763.3 (Factor a) Inst 3 Victim Impact: Clarification of Statutory Scheme In Light Of Victim Impact Evidence
F 763.3 (Factor a) Inst 4 Fact Of Conviction Not Aggravation
F 763.3 (Factor a) Inst 5 No Double Counting Of Special Circumstances Facts If Already Considered Under Factor (a)
F 763.3 (Factor a) Inst 6 Circumstances Of The Crime May Be Aggravating, Mitigating Or Neither
F 763.3 (Factor a) Inst 7 Special Circumstances Merely Establish Death Eligibility
F 763.3 (Factor a) Inst 8 Defendant’s Role As Accomplice Rather Than Perpetrator As Mitigation
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)
Return to Series 700 Table of Contents.
F 763.3 (Factor a) Inst 1 Victim Impact: Limited To Damage Defendant Knew Or Should Have Known He Was Doing
You may not consider any victim impact evidence unless it was foreseeably related to personal characteristics of the victim which were actually known to or as they appeared to the defendant at the time of the crime.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
Victim Impact Limited To What Defendant Knew Or Should Have Known—Payne v. Tennessee (1991) 501 US 808 contains language which seems to limit the consideration of victim impact to the damage that the defendant knew or should have known that he was doing.
This language should be followed instead of the broader California Supreme Court opinions which violate the 8th Amendment by allowing sentencing based on arbitrary and unreliable factors. (See People v. Fierro (1991) 1 C4th 173, 260 (conc. and dis. opn. Kennard, J., [relying on South Carolina v. Gathers (1989) 490 US 805, 811-12; overruled on other grounds in Payne v. Tennessee, supra, 501 US 808.
As They Appeared To The Defendant—See CALCRIM 505, paragraph 3; see also FORECITE F 820.5 Inst 3.
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 13.13 [Improper Aggravation]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 763.3 Inst 2 (a-d) Victim Impact: Cautionary Instruction
Alternative a:
Evidence has been introduced for the purpose of showing the specific harm caused by the defendant’s crime. Such evidence, if believed, was not received and may not be considered by you to divert your attention from your proper role of deciding whether defendant should live or die. You must face this obligation soberly and rationally, and you may not impose the ultimate sanction as a result of an irrational, purely subjective response to emotional evidence and argument. On the other hand, evidence and argument on emotional though relevant subjects may provide legitimate reasons to sway the jury to show mercy.
Alternative b:
The prosecution has introduced what is know as victim impact evidence. Victim impact evidence is not the same as an aggravating circumstance. Proof of an adverse impact on the victim’s family is not proof of an aggravating circumstance. Rather, victim impact evidence may be considered, if at all, only to the extent you find it is part of the circumstances of the murder conviction for which you are now determining whether to sentence defendant to death or life imprisonment without the possibility of parole. In assessing to what extent, if any, you should consider the victim impact evidence in your deliberations, you may not consider any victim impact evidence unless it was foreseeably related to “personal characteristics of the victim that were [actually] known to the defendant at the time of the crime. Your consideration of the victim impact evidence must be limited to a rational inquiry into the culpability of the defendant, not an emotional response to the evidence. You may not be influenced by sympathy, passion or public opinion arising from victim impact evidence.
[Source: State v. Nesbit (Tenn. 1998) 978 SW2d 872; People v. Fierro (91) 1 C4th 173, 260 (con. and dis. opn. Kennard, J.); relying on South Carolina v. Gathers (1989) 490 US 805, 811-12 [104 LEd2d 876, 883], overruled on other grounds in Payne v. Tennessee (1991) 501 US 808 [115 LEd2d 720; 111 SCt 2597]; State v. Taylor (La. 1996) 669 S2d 364, 372; see also Cargle v. State (Ok. Cr. App. 1995) 909 P2d 806, 828-29; New Jersey v. Muhammad (N.J. 1996) 145 NJ 23 [678 A2d 164]; Evans v. State (Md. 1994) 637 A2d 117, 132-33; Pennsylvania v. Means (2001) 773 A2d 143.]
Alternative c:
The prosecution has introduced what is know as victim impact evidence. This evidence has been introduced to show the financial, emotional, psychological and physical effects of the victim’s death on the members of the victim’s immediate family. You may consider this evidence in determining an appropriate punishment. However, your consideration must be limited to a rational inquiry into the culpability of the defendant, not emotional response to this evidence.
[Source: Given by the Hon. Alfred Delucchi, Judge of the Superior Court, in People v. Thomas Franklin Wheelock, Alameda County Superior Court Action No. 139206A.]
Alternative d:
Evidence has been introduced for the purpose of showing the specific harm caused by the defendant’s crime. That is victim impact. This evidence is not to be considered by you as a separate aggravating circumstance. It may only be considered as evidence of the circumstances of the crime.
You must face your duty with regard to sentencing soberly and rationally, and you may not impose a death sentence as a result of a purely subjecting response to emotional evidence and argument regarding the victim.
On the other hand, evidence and argument on emotional, though relevant, subjects regarding the defendant may provide reason to impose life without the possibility of parole.
[Source: Given by the trial court in People v. Donald Bowcutt, Siskiyou County Superior Court Action No. 54216.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—In People v. Edwards (1991) 54 C3d 787, the California Supreme Court, following Payne v. Tennessee (1991) 501 US 808 [115 LEd2d 720; 111 SCt 2597], held that factor (a) of section 190.3 allows evidence and argument on the specific harm caused by the defendant including the impact on the family of the victim. This holding only encompasses evidence that logically shows that the harm was caused by the defendant. (Edwards, at 835-36.)
Edwards discussed several principles which limit consideration of such evidence: (1) “[T]here are … limits on emotional evidence and argument”; (2) “[T]he jury must face its obligation soberly and rationally, and should not be given the impression that emotion may reign over reason”; (3) “[E]vidence and argument on emotional though relevant subjects … could provide legitimate reasons to sway the jury to show mercy or to impose the ultimate sanction”; and (4) “[I]rrelevant information or inflammatory rhetoric that diverts the jury’s attention from its proper role or invites an irrational, purely subjective response should be curtailed.” (Edwards quoting People v. Haskett (1982) 30 C3d 841, 864.) (See also People v. Robinson (2005) 37 C4th 592, 651-52 [recognizing the danger that victim impact evidence may be unfairly prejudicial].)
In light of these principles, an instruction should be given limiting the jury’s consideration of victim impact evidence. (See Cargle v. State (Okla. App. 1995) 909 P2d 806, 836; Lane, J. concurring [sentencing “is not a matter of balancing or comparing lives” and it is “not a contest to determine who has the better right to live and who most deserves to die”].)
By promoting a reliable, non-arbitrary, and individualized sentencing determination and by protecting against jury consideration of matters which are constitutionally irrelevant, constitutionally protected, arbitrary, 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. (U.S. Const., 8th and 14th Amendments; Dawson v. Delaware (1992) 503 US 159 [117 LEd2d 309; 112 SCt 1093]; 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].)
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
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 13.13 [Improper Aggravation]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES: As set forth above, the specific harm must be caused by the defendant. When appropriate, counsel may request an instruction on the jury’s duty to find causation as a preliminary fact per EC 403. (See FORECITE F 319 Inst 1.)
A special instruction on the statutory factors should be given when victim impact evidence is presented. (See FORECITE F 763.3 Inst 3.)
CAVEAT: “Singling out a category of evidence for special consideration may cause the jury to give it undue weight in its deliberations.” (People v. Wright (1988) 45 C3d 1126, 1153.) [See also FORECITE F 100.1 Inst 5.] On the other hand, failure to request a cautionary instruction may waive an important appellate issue. These conflicting considerations should be weighed in each individual case.
CALJIC NOTE: See FORECITE F 8.85 Inst 8.
F 763.3 (Factor a) Inst 3 Victim Impact: Clarification Of Statutory Scheme In Light Of Victim Impact Evidence
*Add to CC 763(5)(Factor a):
The determination of punishment turns on the personal moral culpability of the defendant.
Such culpability is assessed in accordance with the specified factors of aggravation and mitigation upon which I have already instructed you.
For purposes here, “aggravation” means that which increases the defendant’s personal moral culpability above the level of blameworthiness that inheres in the capital offense. By contrast, “mitigation” means that which reduces his culpability below that level.
Thus, the circumstances of the crime itself can be either aggravating or mitigating. Their character depends on the greater or lesser blameworthiness they reveal—ranging, for example, from the most intentional of willful, deliberate, and premeditated murders to the most accidental of felony murders.
Other violent criminal activity is similar. Its presence is aggravating, suggesting as it does that the capital offense is the product more of the defendant’s basic character than of the accidents of his situation. Its absence is obviously mitigating, carrying the opposite suggestion.
So too prior felony convictions. Their existence is aggravating. They reflect on the relatively greater contribution of character than situation. Moreover, they reveal that the defendant had been taught, through the application of formal sanction, that criminal conduct was unacceptable—but had failed or refused to learn his lesson. By contrast, the nonexistence of such convictions plainly is mitigating.
The age of the defendant can also be either aggravating or mitigating.
The existence of any of the following circumstances, however, is mitigating and mitigating only: extreme mental or emotional disturbance; victim participation or consent; reasonable belief in moral justification or extenuation; extreme duress or substantial domination; impairment through mental disease or defect or through intoxication; status as an accomplice and minor participant; and any other extenuating fact. By contrast, the nonexistence of any of these circumstances is not and cannot be aggravating. The absence of mitigation does not amount to the presence of aggravation.
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 defendant has a right to clear instructions which “guide and focus the jury’s objective consideration of particularized circumstances of the individual offense and the individual offender….” [Citations and internal punctuation omitted.] (People v. Benson (1990) 52 C3d 754, 806.)
Moreover, the above instruction is especially appropriate in light of the “practically unimpeded” introduction of “victim impact” evidence which “always threatens to pass the bounds of materiality and often does….” (Bacigalapo (1991) 1 C4th 103, 152, Mosk, J., concurring.)
By promoting a reliable, non-arbitrary, and individualized sentencing determination and by protecting against jury consideration of matters which are constitutionally irrelevant, constitutionally protected, arbitrary, 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. (U.S. Const., 8th and 14th Amendments; Dawson v. Delaware (1992) 503 U.S. 159 [117 LEd2d 309; 112 SCt 1093]; 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].)
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.
NOTE: The defendant’s background can only be mitigating. (People v. Hardy (1992) 2 C4th 86, 207.)
See Article Bank # A-75 for the article discussing victim impact by Michael Ogul, Assistant Public Defender, Alameda County.
See FORECITE F 763.3 n3.
CALJIC NOTE: See FORECITE F 8.87 Inst 1.
F 763.3 (Factor a) Inst 4 Fact Of Conviction Not Aggravation
*Add to CC 763, Factor a, as follows:
The bare fact that the defendant has suffered a murder conviction is not an aggravating factor.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Basis For Instruction—See People v. Siripongs (1988) 45 C3d 548, 581 [jury may not impose the death penalty simply because defendant had committed murder…”]; People v. Stansbury (1993) 4 C4th 1017, 1064-65 [if the fact of the murder conviction was aggravating there would be a presumption of death]; but see People v. Wader (1993) 5 C4th 610, 659 [instruction not required].
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 13.13 [Improper Aggravation]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 763.3 (Factor a) Inst 5 No Double Counting Of Special Circumstances Facts If Already Considered Under Factor (a)
Add to CC 763:
You may not consider the special circumstances which you found to be true as aggravation under Factor (a).
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Basis For Instruction—See CALCRIM 763, paragraph 7; compare People v. Ayala (2000) 24 C4th 243, 288-90 with People v. Ochoa (2001) 26 C4th 398, 457.
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 13.13 [Improper Aggravation]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
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