California Criminal Jury Instructions (CALCRIM) (2017)

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

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763.Death Penalty: Factors to Consider—Not Identified as
Aggravating or Mitigating (Pen. Code, § 190.3)
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.
Amitigating 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, where applicable, 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] of which the defendant was
convicted 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 crime[s] of which the defendant was
convicted in this case. Violent criminal activity is criminal activity
involving the unlawful use, attempt to use, or direct or implied
threat to use force or violence against a person. [The other
violent criminal activity alleged in this case will be described in
these instructions.]
(c) Whether or not the defendant has been convicted of any prior
felony other than the crime[s] of which (he/she) was convicted in
this case.
(d) Whether the defendant was under the influence of extreme
mental or emotional disturbance when (he/she) committed the
crime[s] of which (he/she) was convicted in this case.
(e) Whether the victim participated in the defendant’s homicidal
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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 crime[s] of which (he/she) was convicted in this case.
(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 crime[s] of which (he/she)
was convicted in this case.
(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. These
circumstances include 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.]]
New January 2006; Revised August 2006, June 2007, April 2008, December 2008
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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]; 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.
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 442].) 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
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(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) 350 F.3d
861, 897.
• Must Instruct to Not Double-Count. People v. Melton (1988) 44 Cal.3d 713,
768 [244 Cal.Rptr. 867, 750 P.2d 741].
• Threats of Violence Must Be Directed at Persons. People v. Kirkpatrick
(1994) 7 Cal.4th 988, 1016 [30 Cal.Rptr.2d 818, 874 P.2d 248].
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. (Ibid.;People v. Gordon (1990) 50 Cal.3d 1223, 1275,
fn. 14 [270 Cal.Rptr. 451, 792 P.2d 251].) In People v. Hillhouse, 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
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contained in this list that you conclude are aggravating in this case.” (People v.
Hillhouse (2002) 27 Cal.4th 469, 509, fn. 6 [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].)
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).
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