Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2024) Homicide CALCRIM No. 763. Death Penalty: Factors to Consider - Not Identified as Aggravating or Mitigating (Pen. Code, § 190.3)

CALCRIM No. 763. Death Penalty: Factors to Consider - Not Identified as Aggravating or Mitigating (Pen. Code, § 190.3)

Judicial Council of California Criminal Jury Instructions (2024 edition)

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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.]

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

502

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) The defendant’s age at the time of the crime[s] of which (he/she)

was convicted in this case.

(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.

[You must disregard any jury instruction given to you in the guilt [and

sanity] phase[s] of this trial if it conflicts with your consideration and

weighing of these factors.]

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

HOMICIDE CALCRIM No. 763

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character.]]

New January 2006; Revised August 2006, June 2007, April 2008, December 2008,

March 2021, March 2023, September 2023

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.)

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’.”

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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.)

The bracketed sentence that begins with “You must disregard any jury instruction”

may be given unless the jury did not hear a prior phase of the case. (See People v.

Arias (1996) 13 Cal.4th 92, 171 [51 Cal.Rptr.2d 770, 913 P.2d 980], cert. den. sub

nom. Arias v. California (1997) 520 U.S. 1251 [117 S.Ct. 2408, 138 L.Ed.2d 175].)

AUTHORITY

• Death Penalty Statute. Pen. Code, § 190.3.

• Jury Must Be Instructed to Consider Any Mitigating Evidence and Sympathy.

Lockett v. Ohio, supra, 438 U.S. at pp. 604-605; People v. Benson, supra, 52

Cal.3d at p. 799; 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, supra, 50 Cal.3d at p. 932.

• Must Instruct to Consider Only “Applicable Factors”. Williams v. Calderon

(1998) 48 F.Supp.2d 979, 1023; People v. Marshall, supra, 50 Cal.3d at p. 932.

• 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, supra, 44 Cal.3d at p. 760;

Belmontes v. Woodford (2003) 350 F.3d 861, 897.

• Must Instruct to Not Double-Count. People v. Melton, supra, 44 Cal.3d at p.

768.

• 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].

• This Instruction Upheld Against Due Process Challenge to Victim-Impact

Factors. People v. Tran (2022) 13 Cal.5th 1169, 1220-1221 [298 Cal.Rptr.3d

150, 515 P.3d 1210].

• Mercy Equivalent to Sympathy or Compassion. People v. Thomas (2023) 14

Cal.5th 327, 407 [304 Cal.Rptr.3d 1, 523 P.3d 323].

HOMICIDE CALCRIM No. 763

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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, supra, 27 Cal.4th at p. 509.)

“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,

supra, 50 Cal.3d at p. 1275, fn. 14.) In People v. Hillhouse, the California 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.” (People v.

Hillhouse, supra, 27 Cal.4th at p. 509, fn. 6.)

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 Musselwhite, 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 . . .”(Id. (italics in original).)

SECONDARY SOURCES

3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, §§ 545,

549-550, 563, 568, 571-572, 584-591.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death

Penalty, §§ 87.23, 87.24 (Matthew Bender).

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Page last reviewed May 2024