Instruction Concerning Double-Counting of Aggravating Factor must Be Requested
July 28th, 2016

People v. Salazar (2016) 63 C4th 214, 254 held that the double counting instruction must be requested:

“Defendant claims his prior murder conviction was improperly used both as a special circumstance under section 190.2, subdivision (a) and as an aggravating factor under section 190.3, factors (b) and (c). He contends the jury should have been instructed not to ‘double count’ the conviction in this fashion. He acknowledges that in People v. Proctor (1992) 4 C4th 499, 550, we held such an instruction is only available upon request…. To the extent defendant argues that the same incident may not be considered as a special circumstance and as an aggravating factor, he is incorrect. To the extent he argues that an instruction on double counting an aggravating factor is required in the absence of a request, we are not persuaded to change our settled view.”  [Citations omitted.]

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