Tag Archives: Death Penalty


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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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 […]


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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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