Propriety of Juror and Factual Finding Re: Aggravating Circumstance
December 11th, 2015

The California Supreme Court has expressly ruled that the determination of whether there were aggravating circumstances to permit an enhanced sentence is not an issue which should be presented to a jury. (People v. Sandoval (2007) 41 Cal. 4th 825.) The Court of Appeal has ruled that the prosecution is not permitted to allege aggravating circumstances in an accusatory pleading. (People v. Superior Court (2007) 159 Cal. App. 4th 1.) Thus, CC 3250 should never be given.


Although not discussed by the CC’s Bench Notes, assuming that the defendant has the right to a jury trial on the factual finding at issue, the court would have a sua sponte duty to instruct on the finding, just as it has a sua sponte duty to instruct on any necessary element of a crime. (See e.g. CC 2541, Bench Notes; People v. Reynolds (1988) 205 Cal. App. 3d 776, overruled in part by People v. Flood (2008) 18 Cal. 4th 470.)

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