It is appropriate to instruct the jurors on specific factors relevant to a given factual issue. (See e.g., People v. Wright (1988) 45 C3d 1126, 1149 [eyewitness identification factors]; People v. Gurule (2002) 28 C4th 557, 660 [defense right to pinpoint instruction on defense theory]; U.S. v. Pierra (9th Cir. 2001) 254 F3d 872 [same]; see also FORECITE F 315.1.2 Inst 2.)
Moreover, lists of factors for the jurors’ consideration are included in a number of the standard CALCRIM instructions. (See list below.)
However, when the jurors are instructed using a list format it may be appropriate to supplement the standard instruction with various clarifying, limiting, and/or cautionary instructions (See e.g., FORECITE F 105.2 Inst 2 and F 105 Note 1.
The following CALCRIM instructions include multiple specific factors for juror consideration:
CC 105/CC 226 Witnesses
“Among the factors you may consider are….”
- Eyewitness Identification
“You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. In evaluating identification testimony, consider the following questions….”
CC 330 Testimony of Child 10 Years of Age or Younger
“In evaluating the child’s testimony, you should consider all of the factors”
CC 331 Testimony of Person With Developmental, Cognitive, or Mental Disability
In evaluating the testimony of a person with a (developmental disability[,]/ [or] [a] (cognitive[,]/ [or] mental[,]/ [or] communication) impairment), consider all of the factors surrounding that person’s testimony, including his or her level of cognitive development.
CC 332 Expert Witness Testimony
“… consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion.”
CC 441, CC 442 Solicitation
“If you find the defendant guilty of solicitation, you must decide how many crimes (he/she) solicited. When deciding this question, consider the following factors….”
CC 540B Felony Murder: First Degree [Reckless Indifference]
[When you decide whether the defendant acted with reckless indifference to human life, consider all the evidence. No one of the following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant acted with reckless indifference to human life. Among the factors you may consider are ….”
CC 540B Felony Murder: First Degree [Major Participant]
[When you decide whether the defendant was a major participant, consider all the evidence. No one of the following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant was a major participant. Among the factors you may consider are…”
CC 549 DELETED & replaced with Bench Note in CC 540 re: “one continuous transaction” [“In deciding whether the act causing the death and the felony were part of one continuous transaction, you may consider the following factors: . . .”]
CC 590 Gross Vehicular Manslaughter While Intoxicated
The combination of driving a vehicle while under the influence of (an alcoholic beverage/ [and/or] a drug) and violating a traffic law is not enough by itself to establish gross negligence. In evaluating whether the defendant acted with gross negligence, consider the level of the defendant’s intoxication, if any; the way the defendant drove; and any other relevant aspects of the defendant’s conduct.
CC 703. Special Circumstances [Reckless Indifference]
[When you decide whether the defendant acted with reckless indifference to human life, consider all the evidence. No one of the following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant acted with reckless indifference to human life.
Among the factors you may consider are….”
CC 703. Special Circumstances [Major Participant]
[When you decide whether the defendant was a major participant, consider all the evidence. No one of these following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant was a major participant. Among the factors you may consider are….”
- Second Degree Murder With Prior Prison for Murder
The factors for the jury to consider under PC 190.05(e) are identical to the factors to be considered in a death penalty trial. Thus, the court needs to change only the penalties that the jury must choose between.
CC 763 Death Penalty: Factors to Consider—Not Identified as Aggravating or Mitigating
“Under the law, you must consider, weigh, and be guided by specific factors, where applicable, some of which may be aggravating and some of which may be mitigating. I will read you the entire list of factors. Some of them may not apply to this case. If you find there is no evidence of a factor, then you should disregard that factor. [para] The factors are….”
CC 766. Death Penalty: Weighing Process
“In reaching your decision, you must consider, take into account, and be guided by the aggravating and mitigating circumstances. Each of you is free to assign whatever moral or sympathetic value you find appropriate to each individual factor and to all of them together. Do not simply count the number of aggravating and mitigating factors and decide based on the higher number alone. Consider the relative or combined weight of the factors and evaluate them in terms of their relative convincing force on the question of punishment..”
CC 840 Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition/ CC 852 Domestic Violence/ CC 2701 Violation of Court Order/ CC 3163 Great Bodily Injury: Domestic Violence
“Factors that may determine whether people are cohabiting include, but are not limited to, (1) . . ., (2) . . ., (3) . . ., (4) . . ., (5) . . .,”
CC 1156 Loitering: For Prostitution
“In deciding whether the defendant acted with intent to commit prostitution, you may consider whether (he/she)….”
CC 1201 Kidnapping: Child or Person Incapable of Consent/ CC 1215 Kidnapping
“…consider other factors such as….”
CC 1243 Human Trafficking/ CC 1244 Causing Minor to Engage in Commercial Sex Act/ CC 3184 Sex Offenses: Sentencing Factors/ CC 3414 Coercion
“When you decide whether the other person (used duress/ [or] used coercion/ [or] deprived the defendant of personal liberty or violated the defendant’s personal liberty), consider all of the circumstances, including the age of the defendant, (his/her) relationship to the other person [or the other person’s agent[s]], and the defendant’s handicap or disability, if any.”
CC 1300 Criminal Threat
In deciding whether a threat was sufficiently clear, immediate, unconditional, and specific, consider the words themselves, as well as the surrounding circumstances.
CC 2840 [failure to file tax return is a factor to consider]/ CC 2842/CC 2843 [another factor to consider re: unreported taxable income.]
CC 2980 Contributing to Delinquency of Minor
“The manner in which a less serious injury, if any, was inflicted, any history of repeated infliction of injuries on the child or the child’s siblings, or a combination of these and other actions by the parent or guardian may be relevant to whether the child is at substantial risk of serious physical harm.] [para] The following factors may bear on such a determination:….”
- Collective or Cooperative Cultivation Defense
In deciding whether a collective meets these legal requirements, consider the following factors….”