Tag Archives: Death Penalty

CALCRIM Committee Acknowledges “Tension” Between Its Death Penalty Instructions and the Federal Constitution
October 8th, 2020

In the September 2020 revisions to the Bench Notes for CC 766 and CC 767 deleted the following optional sentence: “In making your decision about penalty, you must assume that the penalty you impose, death or life without the possibility of parole, will be carried out.” This sentence, which is based on the holding in […]

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Death Penalty Aggravation: Jury Properly Instructed to Consider Prior Robbery Under Factor (B) Instead of Factor (A)
May 19th, 2020

The capital trial in People v. Spencer (2018) 5 Cal.5th 642, 691 included a charge for an armed robbery he committed with a group of men five days before the capital murder, and defendant was convicted of that robbery.  The jury was properly instructed to consider that robbery under Penal Code section 190.3, factor (b), […]

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Death Penalty: Consciousness of Guilt as Aggravation — Limiting Instruction Must Be Requested
May 9th, 2020

In People v. Anderson (2018) 5 Cal.5th 372 the defendant, after the capital murder occurred in San Diego, traveled to Oregon, was arrested there, and later made plans to escape from the county jail in Oregon.  The CSC held that the evidence was not only admissible at the culpability phase to show consciousness of guilt, […]

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Ring Claim Down But Not Out
April 28th, 2020

California Law Violates USSC Precedents Including Hurst v. Florida (2016) _U.S._ 136 S. Ct. 616 October 7th, 2018   it was suggested that counsel should request an instruction that the jury “could impose a death sentence only if it found that aggravating factors outweighed mitigating factors beyond a reasonable doubt,” based on Ring v. Arizona […]

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Instructions Must Not Interfere With Jurors’ Ability to Consider Their Personal Religious, Philosophical, and Secular Normative Values During Penalty Deliberation
November 17th, 2019

During the penalty instructions in People v. Gomez (Ruben P.) (2018) 6 Cal.5th 243 the judge said that jurors “are sometime tempted in this phase of the case to refer to biblical references.  Don’t bring the Bible and, don’t refer to those.” The CSC concluded that it is not improper for jurors to consider their […]


Should Penalty Phase Jury Be Instructed to Consider Both the Defendant’s Chronological and Psychological Age?
November 10th, 2019

CJ 763(i) tells the jury to consider “the defendant’s age at the time of the crime[s]” in deciding whether or not the defendant should be sentenced to death. This factor should permit the jurors to consider the defendant’s chronological and/or psychological age in mitigation.   In Roper v. Simmons (2005) 543 U.S. 551, 570, 125 […]

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How Should the Jury Be Instructed in a Death Penalty Case in Which the Defendant Asked for the Death Penalty?
October 25th, 2019

In People v. Anderson (2018) 5 Cal.5th 372, 423 the defendant asked the jury at the punishment phase to give him the death penalty. The California Supreme Court held that the instruction set forth below “was sufficient to protect defendant from an unreliable verdict.”   Sample Instruction:   Each of you remains obligated to decide […]

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Should Accomplice Corroboration Instruction Be Repeated at Penalty Phase?
October 18th, 2019

In People v. Gomez (2018) 6 Cal 5th 243 the trial court failed to reinstruct the jury during the penalty phase that independent evidence must corroborate accomplice testimony.  The CSC concluded that any error was harmless.  The jury had concluded the defendant was guilty in four of five murders charged.  The prosecutor did not focus […]

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Death Penalty Mitigation: Jurors Should Consider “Any Credible Evidence” Of Mitigating Factors
September 24th, 2019

People v. Powell (2018) 6 Cal.5th 136, 186, while not holding that such instructions were required, concluded that the standards applicable to mitigation evidence were sufficiently explained by the standard CALJIC instructions and an instruction advising “the jury that mitigating factors need not be proven beyond a reasonable doubt and that a mitigating factor may […]

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Should Consciousness Of Guilt Instructions Such As Flight Be Limited To The Determination Of Guilt In Death Penalty Case?
August 19th, 2019

People v. Anderson (2018) 5 Cal. 5th 372, 391-93 recognized that evidence showing consciousness of guilt, such as flight or escaping from jail, is generally admissible within the trial court’s discretion. Thus, the existence of alternate explanations for the defendant’s behavior does not necessarily defeat the court’s discretion to admit consciousness-of-guilt evidence. However, when consciousness […]

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