Criminal Law

763. Death Penalty: Factors to Consider - Not Identified as Aggravating or Mitigating

In reaching your decision, you must consider and weigh the aggravating and mitigating circumstances or factors shown by the evidence.

An aggravating circumstance or factor is any fact, condition, or event relating to the commission of a crime, above and beyond the elements of the crime itself, that increases the wrongfulness of the defendant's conduct, the enormity of the offense, or the harmful impact of the crime. An aggravating circumstance may support a decision to impose the death penalty.

A mitigating circumstance or factor is any fact, condition, or event that makes the death penalty less appropriate as a punishment, even though it does not legally justify or excuse the crime. A mitigating circumstance is something that reduces the defendant's blameworthiness or otherwise supports a less severe punishment. A mitigating circumstance may support a decision not to impose the death penalty.

Under the law, you must consider, weigh, and be guided by specific factors, some of which may be aggravating and some of which may be mitigating. I will read you the entire list of factors. Some of them may not apply to this case. If you find there is no evidence of a factor, then you should disregard that factor.

The factors are:

(a) The circumstances of the crime[s] that the defendant was convicted of in this case and any special circumstances that were found true.

(b) Whether or not the defendant has engaged in violent criminal activity other than the murder of <insert name of murder victim>. Violent criminal activity involves the unlawful use or attempted use of force or violence or the direct or implied threat to use force or violence. [The other violent criminal activity alleged in this case will be described in these instructions.]

(c) Any felony of which the defendant has been convicted other than the murder of <insert name of murder victim>.

(d) Whether the defendant was under the influence of extreme mental or emotional disturbance when (he/she) committed the murder of <insert name of murder victim>.

(e) Whether the victim participated in the defendant's homicidal conduct or consented to the homicidal act.

(f) Whether the defendant reasonably believed that circumstances morally justified or extenuated (his/her) conduct in committing the murder of <insert name of murder victim>.

(g) Whether at the time of the murder the defendant acted under extreme duress or under the substantial domination of another person.

(h) Whether, at the time of the offense, the defendant's capacity to appreciate the criminality of (his/her) conduct or to follow the requirements of the law was impaired as a result of mental disease, defect, or intoxication.

(i) The defendant's age at the time of the murder of <insert name of murder victim>.

(j) Whether the defendant was an accomplice to the murder and (his/her) participation in the murder was relatively minor.

(k) Any other circumstance, whether related to these charges or not, that lessens the gravity of the crime[s] even though the circumstance is not a legal excuse or justification. In reaching your decision, you may consider sympathy or compassion for the defendant or anything you consider to be a mitigating factor, regardless of whether it is one of the factors listed above.

Do not consider the absence of a mitigating factor as an aggravating factor.

[You may not consider as an aggravating factor anything other than the factors contained in this list that you conclude are aggravating in this case. You must not take into account any other facts or circumstances as a basis for imposing the death penalty.]

[Even if a fact is both a "special circumstance" and also a "circumstance of the crime," you may consider that fact only once as an aggravating factor in your weighing process. Do not double-count that fact simply because it is both a "special circumstance" and a "circumstance of the crime."]

[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 would have on (his/ her) family if that evidence demonstrates some positive quality of the defendant's background or character.]]

Bench Notes

Instructional Duty

The court has a sua sponte duty to instruct the jury on the factors to consider in reaching a decision on the appropriate sentence. (Lockett v. Ohio (1978) 438 U.S. 586, 604-605 [98 S.Ct. 2954, 57 L.Ed.2d 973]; People v. Benson (1990) 52 Cal.3d 754, 799 [276 Cal.Rptr. 827, 802 P.2d 330].)

Although not required, "[i]t is . . . the better practice for a court to instruct on all the statutory penalty factors, directing the jury to be guided by those that are applicable on the record." (People v. Marshall (1990) 50 Cal.3d 907, 932 [269 Cal.Rptr. 269, 790 P.2d 676], cert. den. sub nom. Marshall v. California (1991) 498 U.S. 1110 [111. S.Ct. 1023, 112 L.Ed.2d 1105]; People v. Miranda (1987) 44 Cal.3d 57, 104-105 [241 Cal.Rptr. 594, 744 P.2d 1127]; People v. Melton (1988) 44 Cal.3d 713, 770 [244 Cal.Rptr. 867, 750 P.2d 741].) The jury must be instructed to consider only those factors that are "applicable." (Williams v. Calderon (1998) 48 F.Supp.2d 979, 1023.)

When the court will be instructing the jury on prior violent criminal activity in aggravation, give the bracketed sentence that begins with "The other violent criminal activity alleged in this case." (See People v. Robertson (1982) 33 Cal.3d 21, 55 [188 Cal.Rptr. 77, 655 P.2d 279]; People v. Yeoman (2003) 31 Cal.4th 93, 151 [2 Cal.Rptr.3d 186, 72 P.3d 1166].) The court also has a sua sponte duty to give CALCRIM No. 764, Death Penalty: Evidence of Other Violent Crimes in addition to this instruction.

When the court will be instructing the jury on prior felony convictions, the court also has a sua sponte duty to give CALCRIM No. 765, Death Penalty: Conviction for Other Felony Crimes in addition to this instruction.

Insert the name of the murder victim in the blanks provided.

On request, the court must instruct the jury not to double-count any "circumstances of the crime" that are also "special circumstances." (People v. Melton, supra, 44 Cal.3d at p. 768.) When requested, give the bracketed paragraph that begins with "Even if a fact is both a 'special circumstance' and also a 'circumstance of the crime'."

On request, give the bracketed sentence that begins with "You may not let sympathy for the defendant's family." (People v. Ochoa (1998) 19 Cal.4th 353, 456 [79 Cal.Rptr.2d 408, 966 P.2d 422].) On request, give the bracketed sentence that begins with "However, you may consider evidence about the impact the defendant's execution." (Ibid.)

Authority

Death Penalty Statute. Pen. Code, § 190.3.

Jury Must Be Instructed to Consider Any Mitigating Evidence and Sympathy. Lockett v. Ohio (1978) 438 U.S. 586, 604-605 [98 S.Ct. 2954, 57 L.Ed.2d 973]; People v. Benson (1990) 52 Cal.3d 754, 799 [276 Cal.Rptr. 827, 802 P.2d 330]; People v. Easley (1983) 34 Cal.3d 858, 876 [196 Cal.Rptr. 309, 671 P.2d 813].

Should Instruct on All Factors. People v. Marshall (1990) 50 Cal.3d 907, 932 [269 Cal.Rptr. 269, 790 P.2d 676], cert. den. sub nom. Marshall v. California (1991) 498 U.S. 1110 [111 S.Ct. 1023, 112 L.Ed.2d 1105].

Must Instruct to Consider Only "Applicable Factors". Williams v. Calderon (1998) 48 F.Supp.2d 979, 1023; People v. Marshall (1990) 50 Cal.3d 907, 932 [269 Cal.Rptr. 269, 790 P.2d 676], cert. den. sub nom. Marshall v. California (1991) 498 U.S. 1110 [111 S.Ct. 1023, 112 L.Ed.2d 1105].

Mitigating Factor Must Be Supported by Evidence. Delo v. Lashley (1993) 507 U.S. 272, 275, 277 [113 S.Ct. 1222, 122 L.Ed.2d 620].

Aggravating and Mitigating Defined. People v. Dyer (1988) 45 Cal.3d 26, 77-78 [246 Cal.Rptr. 209, 753 P.2d 1]; People v. Adcox (1988) 47 Cal.3d 207, 269-270 [253 Cal.Rptr. 55, 763 P.2d 906].

On Request Must Instruct to Consider Only Statutory Aggravating Factors. People v. Hillhouse (2002) 27 Cal.4th 469, 509 [117 Cal.Rptr.2d 45, 40 P.3d 754], cert. den. sub nom. Hillhouse v. California (2003) 537 U.S. 1114 [123 S.Ct. 869, 154 L.Ed.2d 789]; People v. Gordon (1990) 50 Cal.3d 1223, 1275, fn. 14 [270 Cal.Rptr. 451, 792 P.2d 251].

Mitigating Factors Are Examples. People v. Melton (1988) 44 Cal.3d 713, 760 [244 Cal.Rptr. 867, 750 P.2d 741]; Belmontes v. Woodford (2003) 335 F.3d 1024, 1060 [reprinted as amended at Belmontes v. Woodford (2003) 350 F.3d 861, 876].

Must Instruct to Not Double-Count. People v. Melton (1988) 44 Cal.3d 713, 768 [244 Cal.Rptr. 867, 750 P.2d 741].

Secondary Sources

3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, §§ 462, 466-467, 475, 480, 483-484, 493-497.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death Penalty, §§ 87.23, 87.24 (Matthew Bender).

Commentary

Aggravating and Mitigating Factors—Need Not Specify

The court is not required to identify for the jury which factors may be aggravating and which may be mitigating. (People v. Hillhouse (2002) 27 Cal.4th 469, 509 [117 Cal.Rptr.2d 45, 40 P.3d 754], cert. den. sub nom. Hillhouse v. California (2003) 537 U.S. 1114 [123 S.Ct. 869, 154 L.Ed.2d 789].) "The aggravating or mitigating nature of the factors is self-evident within the context of each case." (Ibid.) However, the court is required on request to instruct the jury to consider only the aggravating factors listed. (People v. Hillhouse, supra, 27 Cal.4th at p. 509; People v. Gordon (1990) 50 Cal.3d 1223, 1275, fn. 14 [270 Cal.Rptr. 451, 792 P.2d 251].) In People v. Hillhouse, supra, 27 Cal.4th at p. 508, fn. 6, the Supreme Court stated, "we suggest that, on request, the court merely tell the jury it may not consider in aggravation anything other than the aggravating statutory factors." The committee has rephrased this for clarity and included in the text of this instruction, "You may not consider as an aggravating factor anything other than the factors contained in this list that you conclude are aggravating in this case."

Although the court is not required to specify which factors are the aggravating factors, it is not error for the court to do so. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1269 [74 Cal.Rptr.2d 212, 954 P.2d 475].) In People v. Musselwhite, supra, 17 Cal.4th at p. 1269, decided prior to Hillhouse, the Supreme Court held that the trial court properly instructed the jury that "only factors (a), (b) and (c) of section 190.3 could be considered in aggravation . . ." (italics in original).

(New January 2006)