SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 765 (Factor c) Death Penalty: Conviction For Other Felony Crimes
TABLE OF CONTENTS
F 765.1 Titles And Identification Of Parties
F 765.1 Inst 1 Death Penalty: Conviction For Other Felony Crimes—Title
F 765.1 Inst 2 Identification Of Prosecution And Defendant
F 765.2 Prior Felony Convictions: Instructions And Notes
F 765.2 Inst 1 Absence Of Prior Felony Conviction As Mitigation (PC 190.3(c))
F 765.3 Death Penalty: Conviction For Other Felony Crimes—Burden Of Proof Issues
F 765.3 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 765.2 Inst 2 Duty To Instruct That Facts Underlying Prior Conviction Under Factor C Must Be Proved Beyond A Reasonable Doubt
F 765 Notes
F 765 Note 1 Death Penalty: Conviction For Other Felony Crimes—CALCRIM Cross-References And Research Notes
F 765 Note 2 Prior Felony Convictions: Instructions Given Must Be Correct
F 765 Note 3 Defense Theory That Prior Criminal Activity Or Convictions Are Mitigating
F 765 Note 4 Reasonable Doubt Instruction Required For “Factor c” Felony Convictions
Return to Series 700 Table of Contents.
F 765.1 Titles And Identification Of Parties
F 765.1 Inst 1 Death Penalty: Conviction For Other Felony Crimes—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 765.1 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 765.2 Prior Felony Convictions: Instructions And Notes
765.2 Inst 1 (a-d) Absence Of Prior Felony Conviction As Mitigating (PC 190.3(c))
*Modify CC 763 (factor c), as follows:
Alternative a [add to CC 76 (c)]:
The absence of any felony convictions of the defendant besides the crime[s] in this case is a mitigating factor.
Alternative b [specify aggravating and mitigating factors per FORECITE F 763.2 Inst 9 [Specification Of Which Factors Are Aggravating And Mitigating]].
Alternative c [modify CC 763(c) to provide as follows]:
(c) Whether or not the defendant has been convicted of any felony of which the defendant has been convicted other than the murder of ______ <insert name of murder victim> besides the crime[s] in this case.
Alternative d:
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.
[Source: People v. Crandell (1988) 46 C3d 833, 884.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Absence Of Prior Convictions Is Mitigating— The absence of other violent criminal activity and/or prior felony convictions “plainly is mitigating.” (See PC 190.3(c); see also People v. Bacigalupo (1991) 1 C4th 103, 145-46 (Mosk, J. concurring); People v. Crandell (1988) 46 C3d 833, 834; Lashley v. Armontrout (8th Cir. 1992) 957 F2d 1495, 1501; Aldridge v. Dugger (11th Cir. 1991) 925 F2d 1320, 1330.)
However, CC 763(c) does not so inform the jury. Instead it misstates the statutory requirement for factor (c) aggravation and mitigation. Factor (c) requires the trier of fact to take into account the following: “[t]he presence or absence of any prior felony conviction.”(PC190.3(c).) The CALCRIM language, however, requires consideration of “any felony of which the defendant has been convicted other than the murder of.” The instruction incorrectly states the law in that it fails to acknowledge, and precludes consideration of, the statutory mitigator which occurs when a prior felony conviction is absent. It thus violates the Due Process Clause of the federal constitution by precluding the “substantial and legitimate expectation [of a criminal defendant] that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion.”(Hicks v. Oklahoma (1980) 447 US 343, 346.)
[Compare Draft CALCRIM 702 ADP, which correctly identified the presence of a prior felony conviction as a potential aggravating factor and identified the absence of a felony conviction as a mitigating factor only. See FORECITE F 763.2 Inst 9 [Specification Of Which Factors Are Aggravating And Mitigating].
Moreover, the 8th Amendment requires that the jury be adequately instructed upon mitigating factors. (See Lockett v. Ohio (1978) 438 US 586 [57 LEd2d 973; 98 SCt 2954].)
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]
F 765.2 Inst 2 Duty To Instruct That Facts Underlying Prior Conviction Under Factor C Must Be Proved Beyond A Reasonable Doubt
*Add to CC 765:
The prosecution must also prove every essential fact and element underlying the alleged prior conviction 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.]
Propriety Of Instruction—See People v. Hinton (2006) 37 C4th 839, 910-11 [recognizing but not resolving the issue].
Identification Of Parties—See FORECITE F 100.2 Note 1.
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]
F 765.3 Death Penalty: Conviction For Other Felony Crimes—Burden Of Proof Issues
F 765.3 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 765 NOTES
F 765 Note 1 Death Penalty: Conviction For Other Felony Crimes—CALCRIM Cross References And Research Notes
CALCRIM Cross-References:
CALCRIM 764
Research Notes:
See CLARAWEB Forum, Homicide—Series 500-700.
F 765 Note 2 Prior Felony Convictions: Instructions Given Must Be Correct
Even though the trial court has no sua sponte duty to instruct upon the elements of other crimes introduced at the penalty phase as aggravating factors, if instructions are given, the court has a duty to instruct correctly. (People v. Cummings (1993) 4 C4th 1233, 1337.)
CALJIC NOTE: See FORECITE F 8.85(c) n1.
F 765 Note 3 Defense Theory That Prior Criminal Activity Or Convictions Are Mitigating
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); see also FORECITE F 315.1.2 Inst 2.)
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 200.5 Inst 2.)
F 765 Note 4 Reasonable Doubt Instruction Required For “Factor c” Felony Convictions
People v. Kennedy (2005) 36 CA4th 595, 637-38 held that a reasonable doubt instruction was not required as to the prior felony conviction aggravator per PC 190.3(c). However, in People v. Williams (2010) 49 C4th 405, 459 the Court reversed its position on this issue:
Upon reflection, we have concluded that as a matter of state law, juries should be instructed upon the beyond-a-reasonable-doubt standard as to section 190.3, factor (c) evidence. The applicability of this standard is well settled with respect to evidence of prior violent criminal activity admitted pursuant to section 190.3, factor (b), and in our view juries may find it difficult to understand the technical distinction between the two types of evidence of prior criminality and to apply differing standards to them. To the extent a contrary conclusion is suggested by language in prior decisions, those decisions are disapproved. (See, e.g., People v. Kennedy, supra, 36 C4th 595, 637; People v. Pinholster, supra, 1 C4th 865, 965; People v. Wright, supra, 52 C3d 367, 437; People v. Morales, supra, 48 C3d 527, 566; People v. Gates, supra, 43 C3d 1168, 1202.)
