SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 764 Death Penalty: Evidence Of Other Violent Crimes
TABLE OF CONTENTS
F 764.2 Inst 1 (a & b) Jury Must Determine Whether Unadjudicated Acts Were “Violent” And “Criminal”
F 764.2 Inst 2 Death Penalty: Jury May Not Consider Non-Violent Acts Or Juvenile Adjudications
F 764.2 Inst 3 When Uncharged-Act-Instruction (e.g., CALCRIM 375) Given At The Guilt Phase Of Capital Trial
F 764.2 Inst 4 (a-c) Evidence Presented For A Limited Purpose
F 764.2 Inst 5 Unadjudicated Violent Crimes: Continuous Course Of Criminal Activity /Conspiracy
F 764.2 Inst 6 Defense Theory That Prior Criminal Activity Or Convictions Are Mitigating
F 764.2 Inst 7 Clarification Of Difference Between Factor (b) And Factor (c)
F 764.2 Inst 8 Limiting Instruction: Unadjudicated “Other Crimes” Evidence Offered For Reasons Other Then Aggravation Under PC 190.3(b)
F 764.2 Inst 9 Other Criminal Activity Not To Be Considered Under Factor (a)
F 764.2 Inst 10 Instruction Should Refer To “Felony” Offenses Not Merely “Crimes”
Return to Series 700 Table of Contents.
F 764.1 Titles And Identification Of Parties
F 764.1 Inst 1 Death Penalty: Evidence Of Other Violent Crimes—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 764.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 764.2 Inst 1 (a & b) Jury Must Determine Whether Unadjudicated Acts Were “Violent” And “Criminal”
*Add at end of CC 764:
Alternative a:
You may not consider as aggravation any evidence of unadjudicated acts allegedly committed by defendant [alleged prior convictions suffered by defendant] unless you first determine beyond a reasonable doubt that (1) the defendant committed the acts; (2) the acts involved the use or attempted use of force or violence or the expressed or implied threat to use force or violence against other persons; [(3) the acts were criminal].
Alternative b:
You must not consider as to aggravation any evidence of criminal activity by the defendant which did not involve the use or attempted use of force or violence or which did not involve the expressed or implied threat to use force or violence.
[Source: People v. Williams (1988) 44 C3d 883, 949 fn. 35.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Violence Against Person—CALCRIM 764 fails to require a finding that the unadjudicated offense or prior conviction involved violence to a person. However, the prosecution is obligated to prove beyond a reasonable doubt unadjudicated acts offered as aggravation under 190.3(c). (People v. Morales (1989) 48 C3d 527, 565.) To do so, not only must the prosecutor prove that defendant committed the acts in question, but under the plain language of factor (b), it must also be proven that the acts were “violent” and “criminal.” (See e.g., People v. Figueroa (1986) 41 C3d 714.) Moreover, the violence must be against another person as opposed to property. (See People v. Lewis (2001) 26 C4th 334, 391-92.)
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. (8th and 14th Amendments.) (E.g., 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]; see also EC 403.)
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.
NOTE: [See Brief Bank # B-926for additional briefing and an unpublished opinion on this issue.]
CAVEAT: By strategically failing to request instruction on the elements of the offense, counsel may be waiving defendant’s right to a factual finding on criminality since, without the elements, the jury has no way of making such a determination.
CALJIC NOTE: See FORECITE F 8.87 Inst 3.
F 764.2 Inst 2 Death Penalty: Jury May Not Consider Non-Violent Acts Or Juvenile Adjudications
*Add to CC 764 (Mitigating Factor b):
You have heard evidence of [non-violent unlawful acts] [and] [juvenile adjudications] allegedly attributed to the defendant. These [acts] [and] [adjudications] are not aggravating factors. You must not consider them as providing any weight whatsoever in favor of a sentence of death.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Need For Instruction—In People v. Welch (1999) 20 C4th 701, 770 the court assumed from the instructions, when read in context, that the jury would understand that the listing of aggravating factors was exclusive and non-violent acts or juvenile adjudications should not be considered. However, because this is a correct statement of the law, the defendant should have the right to clarify the matter for the jury upon request.
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.
NOTE: There is a basis for arguing that non-violent prior acts are actually mitigation. (FORECITE F 8.85(c) n2.)
CALJIC NOTE: See FORECITE F 8.85(b) Inst 2.
F 764.2 Inst 3 When Uncharged-Act-Instruction (e.g., CALCRIM 375) Given At The Guilt Phase Of Capital Trial
*Add to CC 764 (Mitigating Factor b):
Previously, you were instructed you could consider other offenses for limited purposes in deciding whether the prosecution met its burden of proof at the guilt trial. Those instructions allowed you to consider the other crimes if you found that the defendant committed them by a preponderance of the evidence.
Now, for purposes of the penalty trial, you must disregard those prior instructions and findings, if any. At the penalty trial, the much more stringent standard of proof beyond a reasonable doubt applies. Before you may consider any other offense in aggravation at the penalty trial, you must first find that the prosecution has proven the defendant guilty of that offense beyond a reasonable doubt.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Need For Instruction—If other crimes evidence are included in the guilt trial per the preponderance standard (e.g., CC 375), special care should be taken in a capital case. The instructions should assure that the proof beyond a reasonable doubt standard is applied to the other crimes for purposes of the penalty phase. (See FORECITE F 764 Note 1; see generally People v. Robertson (1982) 33 C3d 21, 54.)
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.
CALJIC NOTE: See FORECITE F 8.85(b) Inst 3.
F 764.2 Inst 4 (a-c) Evidence Presented For A Limited Purpose
*Add to CC 764 as follows:
Alternative a:
Evidence has been introduced in the guilt and penalty phases of this trial that may show that the defendant engaged in criminal activity which you may not consider as a factor in aggravation. You may consider only the crimes which I will define for you in determining whether or not the defendant has engaged in criminal activity which involves the use of or the express or implied threat to use force or violence.
[Source: People v. Jennings (1988) 46 C3d 963, 985.]
Alternative b:
Evidence of a defendant’s character and background cannot be used as a factor in aggravation. The prosecutor may rebut evidence of good character or childhood deprivation or hardship with evidence relating directly to the particular incidents or character traits on which the defendant seeks to rely, and may argue that this mitigating factor is inapplicable, but (such) evidence may not be used affirmatively as a circumstance in aggravation.
[Source: People v. Edelbacher (1989) 47 C3d 983, 1033.]
Alternative c:
In the sanity phase, reference was made to a “violent act” allegedly committed by defendant prior to the offenses for which he is presently on trial. In the sanity phase, it did not matter whether such an act actually occurred. I allowed questions on the subject even though there was no independent evidence that any such act ever occurred.
In the penalty phase, by contrast, it does matter whether such an act actually took place. At this time, therefore, I must tell you that all of the evidence that exists indicates that if any prior violent act occurred, it was fully justified. In considering which penalty to impose, consequently, it would be highly improper for you to consider the prior act referred to in the sanity phase in any way that is adverse to the defendant. It has—and should have—absolutely no bearing on the determination you are to make at this time.
[Source: People v. Coddington (2000) 23 C4th 529.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Need For Instruction—Evidence of other bad acts will often be admitted for a limited purpose and not as substantive evidence in aggravation. While this may occur for many reasons, such as to prove identity under EC 1101(b), or during a sanity phase, it most commonly occurs when bad acts are brought up in penalty phase rebuttal to impeach positive character evidence presented by the defense.
There is no sua sponte duty for the courts to instruct on the fact that the evidence was admitted for a limited purpose, but it should do so if requested by the defense. (People v. McLain (1988) 46 C3d 97; People v. Jennings (1988) 46 C3d 963; People v. Edelbacher (1989) 47 C3d 983; People v. Hart (1999) 20 C4th 546; People v. Coddington (2000) 23 C4th 529.)
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 764.2 Inst 5 Unadjudicated Violent Crimes: Continuous Course Of Criminal Activity/Conspiracy
*Add to CC 764:
You may only consider the following acts under Factor b if you find beyond a reasonable doubt that they were part of a continuous course of conduct.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Continuous Course Of Conduct—People v. Williams (1997) 16 C4th 153, 242-43 held that all crimes committed during the continuous course of criminal activity that include force or violence may be considered under factor (b) as aggravation. This includes participation in a criminal conspiracy that was part of the continuous course of conduct.
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.
CALJIC NOTE: See FORECITE F 8.85(b) n9.
F 764.2 Inst 6 Defense Theory That Prior Criminal Activity Or Convictions Are Mitigating
*Add to CC 764:
The criminal acts alleged under Factor b may be considered by you as either aggravating, mitigating, or neither one.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Relation Of Other Crimes To Mitigation—Even though the defendant’s prior violent criminal acts (PC 190.3(b)(c)) are normally considered to relate to aggravation, it may be argued that they are also indicative of mitigation as a reflection of the poverty, deprivation and lack of available rehabilitation. (See e.g., People v. Roybal (1998) 19 C4th 481, 527.) Furthermore, there may be mitigating circumstances relating to the particular acts or prior convictions which may reflect favorably on the defendant’s character. Accordingly, if this is the defense theory, the jury should be instructed in such a way that it understands the potential mitigating relevance of the prior criminal acts and felony convictions. In Roybal, the court concluded that the jury would not have misunderstood the instructions in this regard. However, the Roybal court did not discuss the issue in the context of the right to specific instruction on the defense theory of the case. (See FORECITE PG III(A).)
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.
STRATEGY NOTE: If such instruction is refused, the matter may be appropriate for argument to the jury as a legal principle which is included within the more general instructions. (See FORECITE F 1.00l.)
CALJIC NOTE: See FORECITE F 8.85(b) n11.
F 764.2 Inst 7 Clarification Of Difference Between Factor (b) And Factor (c)
*Add to CC 764 as follows:
I admonish you to be guided by the essential difference between factors (b) and (c). Unadjudicated conduct or acts are not aggravating factors unless they were proven beyond a reasonable doubt to be violent crimes committed by the defendant. Then and only then, such conduct or acts may be considered as aggravating under factor (b), but not factor (c). Unadjudicated conduct which was not proven beyond a reasonable doubt to be a violent crime committed by the defendant, such as ____________ <insert example from the evidence, if possible, of non-factor (b) conduct> is not aggravating under either factor (b) or factor (c).
The only evidence that is aggravating under factor (c) is an actual felony conviction. Unadjudicated acts, whether violent or not, may not be considered under factor (c).
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 interplay of factors (b) and (c) is a source of juror confusion which should be explained when appropriate.
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.
CAVEAT: Requesting such an instruction may open the door to a prosecution instruction on permissible “double-counting” of factors (b) and (c). Although there is no pattern instruction which amplifies this, the California Supreme Court has repeatedly held that the jury may “double count” prior violent criminal acts which led to convictions. (See e.g., People v. Hamilton (1988) 46 C3d 123; People v. Lewis (1990) 50 C3d 262; People v. Melton (1988) 44 C3d 713; People v. Lewis (2001) 26 C4th 598.)
In Hamilton, the California Supreme Court suggested that the jury might, upon request, be specifically instructed that it may “double count.”
F 764.2 Inst 8 Limiting Instruction: Unadjudicated “Other Crimes” Evidence Offered For Reasons Other Then Aggravation Under PC 190.3(b)
*Add to CC 763/764, paragraph 5:
The following evidence was not admitted for purposes of aggravation, and, therefore, you may not consider it under factor (b) or any other aggravating factor.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Need For Instruction—There are many reasons why “other crimes” evidence may be admitted for non-aggravation purposes. For example:
a. Rebuttal. (People v. Rodriguez (1986) 42 C3d 730.)
b. Evidence produced by defendant to show mental impairment. (People v. Rich (1988) 45 C3d 1036; People v. Williams (1988) 44 C3d 1127.)
c. Evidence produced by the prosecution as circumstances of the crime. (People v. Williams (1988) 44 C3d 1127.)
When evidence is admitted for such non-aggravation purposes, a limiting instruction should be given on request. (See e.g., People v. Rich (1988) 45 C3d 1036, 1121.)
[See also generally F 303].
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 764.2 Inst 9 Other Criminal Activity Not To Be Considered Under Factor (a)
*Modify CC 763, Factor (b), sentence 1 as follows [added language is underlined]:
(b) Whether or not the defendant has engaged in violent criminal activity other than the murder of __________ <insert name of murder victim> and any other crimes charged against the defendant in this case.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Factor (b) And (c) Not Applicable To Crimes Charged In The Present Proceeding—See People v. Miranda (1987) 44 C3d 57, 106.
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 764.2 Inst 10 Instruction Should Refer To “Felony” Offenses Not Merely “Crimes”
*Modify CC 764 as follows:
Change all references from crime, crimes and crime[s] to felony, and felonies
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – Under the express statutory language “Factor c” only applies to prior felony offenses. By using the term “crime” or “crimes” in the body of the instruction CC 764 may confuse or mislead the jury. (See PC 190.3(c).)
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.
