Tag Archives: Death Penalty

Defense Theory: Defendant On Medication And No Longer Violent
December 20th, 2022

Defense counsel is entitled to expressly argue that defendant will not present any future danger in prison because he has been on medication provided by custodial authorities for several years and that medication has eliminated his violent tendencies.  (People v. Parker (2017) 2 Cal.5th 1184, 1231.)   Thus, upon request the defense should have the […]

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Jury May Not Consider Victim’s Family Desire For Execution Of Defendant At Death Penalty Sentencing Phase
November 30th, 2022

At the penalty phase of a death penalty trial the prosecution may not elicit the views of a victim or victim’s family as to the proper punishment. (Booth v. Maryland (1987) 482 U.S. 496, 508-509.) The high court overruled Booth in part, but it left intact its holding that “the admission of a victim’s family […]

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Conviction of Armed Robbery at Guilt Trial Is Relevant to Death Penalty Sentencing Under Factor (a), Not (b)
October 10th, 2022

Defendant’s capital trial 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), other violent criminal activity, instead of factor (a), the […]

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Limiting Ability of Penalty Phase Jurors to Consider Consciousness of Guilt As Non-Statutory Aggravation
October 3rd, 2022

When consciousness of guilt evidence is admitted at the guilt trial of a death penalty trial that evidence may include “ ‘aggravating evidence of a type not statutorily authorized.’ [Citation.]” (People v. Anderson (2018) 5 Cal.5th 372, 393.) For example, consciousness of guilt may be interpreted by the jurors “as evidence of bad character, and […]

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Aggravating Circumstances: Report of Rumors Is Not Evidence of “Solid Value”
September 26th, 2022

In People v. Penunuri (2018) 5 Cal.5th 126, 168-169 the judge erred in allowing evidence of other violent criminal activity under Penal Code section 190.3, factor (b), concerning a nonfatal shooting that was committed two months before the capital murders because there was insufficient evidence that defendant “committed that assault” and “[t]here was no direct […]

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Justice Liu Again Calls for the CSC to Revisit the Question of Whether PC 190.3 Factor(b) Violates Apprendi
July 26th, 2022

The Due Process Clause of the federal constitution (Fifth and Fourteenth Amendments) protect the accused against conviction except upon proof beyond a reasonable doubt of every essential fact and element of the charge. (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368]; see also Fiore v. White (2001) 531 US […]

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Death Penalty: Sympathy for Defendant’s Family — Instruction and Argument
June 21st, 2022

CC 763 includes the following optional clarifications regarding the jurors’ consideration of sympathy for the defendant’s family in a death penalty case. [Although you may consider sympathy or compassion for the defendant, you may not let sympathy for the defendant’s family influence your decision. [However, you may consider evidence about the impact the defendant’s execution […]

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Meaning Of LWOP: Strategy And Tactics
May 18th, 2022

Simmons v. South Carolina, 512 U.S. 154 (1994), holds that a defendant is entitled to a penalty-phase jury instruction that (if true) life-sentenced prisoners will never be eligible for parole.  For many years, the Arizona Supreme Court held that Simmons does not apply in Arizona because LWOP prisoners are entitled to apply for executive clemency.  […]

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Justice Liu Identifies Defect in California Death Penalty Process
October 20th, 2021

Writing for a unanimous court, Justice Liu’s opinion in People v. McDaniel ____ Cal 5th _____(Aug. 26, 2021, S171393) rejected McDaniel’s arguments concerning the state constitutional and statutory right to jury trial.   However, Justice Liu added a 30-page concurring opinion concerning a related federal constitutional issue based on Apprendi v. New Jersey (2000) 530 […]

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Death Penalty Mitigation: Prosecutor’s Failure to Prove Other Violent Crimes or Felony Convictions Is a Mitigating Circumstance
October 15th, 2021

CC 763 instructs the jurors to consider, inter alia, the following factors in deciding whether to impose a death judgement: (b) Whether or not the defendant has engaged in violent criminal activity other than the crime[s] of which the defendant was convicted in this case. Violent criminal activity is criminal activity involving the unlawful use, […]

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