Tag Archives: Death Penalty


Instructions Must Not Interfere with Jurors’ Ability to Consider Their Personal Religious, Philosophical, and Secular Normative Values During Penalty Deliberation
July 8th, 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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California Law Violates USSC Precedents Including Hurst v. Florida (2016) _U.S._ 136 S. Ct. 616
October 7th, 2018

The United States Supreme Court has repeatedly held that the Fifth, Sixth, and Fourteenth Amendments require any fact other than a prior conviction be proven to a jury beyond a reasonable doubt if the existence of that fact serves to increase the statutory maximum penalty for the crime. Cunningham v. California, 549 U.S. 270, 281-82, […]


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Impact of Defendant’s Inability to Remember His Commission of the Offense on Whether He Should be Executed.
September 6th, 2018

Madison v. Alabama (17-7505) will be argued in the United States Supreme Court on October 2, 2018.   Questions presented: “1. Consistent with the Eighth Amendment, and this Court’s decisions in Ford and Panetti, may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense? See […]


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Death Penalty; Factor B (Other Violent Conduct) – Judge Decides Whether Prior Conduct is:
July 30th, 2018

In People v. Manibusan (2013) 58 Cal.4th 40 the California Supreme Court held that although the jury decides whether alleged acts of other violent criminal activity (PC 190.4 (b)) occurred, “the characterization of those acts as involving an express or implied use of force of violence, or the threat thereof, is a legal matter for […]


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Death Penalty; Factor B (Other Violent Conduct) – Applies to Aiders and Abettor
July 23rd, 2018

Aggravating evidence of other violent criminal activity under Penal Code section 190.3, factor (b), includes other crimes in which defendant was an aider and abettor “‘whether or not the defendant’s actions were themselves violent….’” (People v. (George Brett) Williams (2013) 56 Cal.4th 630, 685)


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Death Penalty: Factor B (Other Violent Conduct) — Notice
July 17th, 2018

People v. Whalen (2013) 56 Cal.4th 1, 73-74 held that the prosecution’s notice of other violent conduct offered in aggravation was sufficient where it “identified the alleged prior convictions by date, county of conviction, and type of offense … [and] also identified the alleged other criminal activity by date or approximate date, location, and type […]


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Use Of The Term “Expert“ In Jury Instruction As Improper Comment On The Evidence
April 6th, 2017

As recently recognized by the United States Supreme Court, the effect of testimony on a jury can be “heightened due to the source of the testimony.” (Buck v. Davis (2/22/2017) ___US___[187 Led 2d 35].) For example, when testimony in a death penalty trial regarding the defendant’s future dangerousness comes from a “medical expert bearing the […]


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Standard of Prejudice: Penalty Phase Error
October 10th, 2016

People v. Grimes (2016)1 Cal.5th 698, 721-23 held that under California law trial court’s erroneous exclusion of evidence is harmless as to penalty unless there is a “reasonable possibility” that the jury would have rendered a different verdict had the erroneously excluded evidence been presented to the jury.  The “reasonable possibility” standard is “the same, […]


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Death Penalty Mitigation: Fetal Alcohol Evidence (FAE)
October 3rd, 2016

In Trevino v. Davis (5th Cir. 2016) 829 F.3d 328 the district court erred by concluding that evidence of Fetal Alcohol Effect (FAE) was “double-edged,” suggesting future dangerousness, so there was no prejudice from trial counsel’s failure to develop it.  According to petitioner’s habeas expert, “his history of FAE clearly had an impact on his […]


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CC 703: Felony Murder: Special Circumstance Liability — Factors Re: Major Participant Determination
September 16th, 2016

PC 190.2(d) was designed to codify the holding of Tison v. Arizona (1987) 481 U.S. 137 [95 L. Ed. 2d 127, 107 S. Ct. 1676], “which articulates the constitutional limits on executing felony murderers who did not personally kill.” (People v. Banks (2015) 61 Cal. 4th 788, 794.) “Tison and a prior decision on which […]


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