CALCRIM No. 764. Death Penalty: Evidence of Other Violent Crimes

Judicial Council of California Criminal Jury Instructions (2023 edition)

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764.Death Penalty: Evidence of Other Violent Crimes
The People allege as an aggravating circumstance that (the defendant/
<insert name of defendant>) committed <insert
specific description of alleged offense[s]>.
The People must prove beyond a reasonable doubt that (the defendant/
<insert name of defendant>) committed [each of] the alleged
crime[s]. [Consider each of the alleged crimes separately.] If you have a
reasonable doubt whether (the defendant/ <insert name of
defendant>) committed (the/an) alleged crime, you must completely
disregard any evidence of that crime. If the People have proved that (the
defendant/ <insert name of defendant>) committed (the/an)
alleged crime, you may consider the evidence of that alleged crime as an
aggravating circumstance.
[To decide whether the defendant committed <insert specific
description of alleged offense[s]>, please refer to the separate instructions
that I (will give/have given) you on (that/those) crime[s].]
Each of you must decide for yourself whether the People have proved
that the defendant committed an alleged crime. You do not all need to
agree whether an alleged crime has been proved. If any juror
individually concludes that an alleged crime has been proved, that juror
may give the evidence whatever weight he or she believes is appropriate.
On the other hand, if any juror individually concludes that an alleged
crime has not been proved, that juror must disregard the evidence
completely.
You may not consider any other evidence of alleged criminal activity as
an aggravating circumstance [except for the alleged prior felony
conviction[s] about which I will now instruct you].
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct that alleged prior crimes offered in
aggravation must be proved beyond a reasonable doubt. (People v. Robertson (1982)
33 Cal.3d 21, 53-55 [188 Cal.Rptr. 77, 655 P.2d 279]; People v. Davenport (1985)
41 Cal.3d 247, 281 [221 Cal.Rptr. 794, 710 P.2d 861].) Evidence of prior crimes is
limited to offenses involving the “use or attempted use of force or violence or the
express or implied threat to use force or violence.” (Pen. Code, § 190.3(b).)
The prosecution must specify what prior crimes are alleged in aggravation and the
court has a sua sponte duty to instruct the jury to consider only evidence relating to
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those alleged crimes. (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 has a sua sponte duty to give any necessary instructions on defenses to
the alleged prior crimes, including instructions on voluntary intoxication as a
defense. (People v. Montiel (1993) 5 Cal.4th 877, 942 [21 Cal.Rptr.2d 705, 855 P.2d
1277].)
When requested by the defense, the court must instruct on the elements of the
alleged prior offense. (People v. Brown (2003) 31 Cal.4th 518, 571 [3 Cal.Rptr.3d
145, 73 P.3d 1137]; (People v. Cox (2003) 30 Cal.4th 916, 964 [135 Cal.Rptr.2d
272, 70 P.3d 277]; People v. Anderson (2001) 25 Cal.4th 543, 589, fn. 14 [106
Cal.Rptr.2d 575, 22 P.3d 347] [rule not changed by Apprendi v. New Jersey (2000)
530 U.S. 466, 475-476, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435]], cert. den. sub
nom. Anderson v. California (2002) 534 U.S. 1136 [122 S.Ct. 1082, 151 L.Ed.2d
982].) However, the court is not required to instruct on the elements sua sponte.
(People v. Brown, supra, 31 Cal.4th at p. 571; People v. Cox, supra, 30 Cal.4th at p.
964.) The defense may, for tactical reasons, prefer not to have the jury hear the
elements.
Give the bracketed portion in the final paragraph when the court is also instructing
the jury on prior felony convictions alleged in aggravation. (See CALCRIM No.
765, Death Penalty: Conviction for Other Felony Crimes.)
If the case involves only one defendant, the court should use the word “defendant”
throughout the instruction. If the case involves codefendants tried jointly, the court
should insert the name of the specific defendant alleged to have committed the prior
crimes in the places indicated in the instruction.
AUTHORITY
• Factor (b). Pen. Code, § 190.3.
• Must Instruct on Reasonable Doubt. People v. Robertson (1982) 33 Cal.3d 21,
53-55 [188 Cal.Rptr. 77, 655 P.2d 279]; People v. Davenport (1985) 41 Cal.3d
247, 281 [221 Cal.Rptr. 794, 710 P.2d 861].
• Must Instruct Jury to Consider Only Specified Prior Crimes Evidence. 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].
• Instruct on Elements Only When Requested. People v. Brown (2003) 31 Cal.4th
518, 571 [3 Cal.Rptr.3d 145, 73 P.3d 1137]; People v. Cox (2003) 30 Cal.4th
916, 964 [135 Cal.Rptr.2d 272, 70 P.3d 277]; People v. Anderson (2001) 25
Cal.4th 543, 589, fn. 14 [106 Cal.Rptr.2d 575, 22 P.3d 347], cert. den. sub nom.
Anderson v. California (2002) 534 U.S. 1136 [122 S.Ct. 1082, 151 L.Ed.2d 982].
• Defense Instructions to Uncharged Crimes. People v. Montiel (1993) 5 Cal.4th
877, 942 [21 Cal.Rptr.2d 705, 855 P.2d 1277].
• Constitutional to Admit Evidence of Uncharged Crimes. People v. Balderas
CALCRIM No. 764 HOMICIDE
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(1985) 41 Cal.3d 144, 205 [222 Cal.Rptr. 184, 711 P.2d 480]; People v. Brown
(2003) 31 Cal.4th 518, 571 [3 Cal.Rptr.3d 145, 73 P.3d 1137].
• No Unanimity Requirement. People v. Benson (1990) 52 Cal.3d 754, 811 [276
Cal.Rptr. 827, 802 P.2d 330].
RELATED ISSUES
Need Not Instruct on Presumption of Innocence
The court is not required to instruct on the presumption of innocence regarding
alleged prior crimes. (People v. Benson (1990) 52 Cal.3d 754, 809-810 [276
Cal.Rptr. 827, 802 P.2d 330].)
No Unanimity Requirement
“We see nothing improper in permitting each juror individually to decide whether
uncharged criminal activity has been proved beyond a reasonable doubt and, if so,
what weight that activity should be given in deciding the penalty.” (People v.
Benson (1990) 52 Cal.3d 754, 811 [276 Cal.Rptr. 827, 802 P.2d 330].)
No Requirement to Instruct Jury Must Find “Violence or Threat of Violence”
Beyond a Reasonable Doubt
The court is required to instruct the jury that the alleged prior crime must be proved
beyond a reasonable doubt. However, the court does not have to instruct the jury
that the fact that the alleged crime involved violence or the threat of violence must
be proved beyond a reasonable doubt. (People v. Ochoa (2002) 26 Cal.4th 398, 453
[110 Cal.Rptr.2d 324, 28 P.3d 78], cert. den. sub nom. Ochoa v. California (1999)
535 U.S. 1040 [122 S.Ct. 1803, 152 L.Ed.2d 660].)
May Use Same Conduct Under Factor (b) and Factor (c)
“Where violent ‘criminal activity’ results in a ‘prior felony conviction,’ it shows
both a propensity for violence and an inability or unwillingness to be deterred by
prior criminal sanctions. The jury was entitled to consider the relevance of
defendant’s prior conviction for both purposes under factors (b) and (c).” (People v.
Whitt (1990) 51 Cal.3d 620, 654 [274 Cal.Rptr. 252, 798 P.2d 849] [emphasis in
original]; People v. Yeoman (2003) 31 Cal.4th 93, 156 [2 Cal.Rptr.3d 186, 72 P.3d
1166].)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 558-561.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.23, 87.24 (Matthew Bender).
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