CALCRIM No. 765. Death Penalty: Conviction for Other Felony Crimes

Judicial Council of California Criminal Jury Instructions (2020 edition)

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765.Death Penalty: Conviction for Other Felony Crimes
The People allege as an aggravating circumstance that (the defendant/
<insert name of defendant>) was convicted of
<insert name of felony conviction> on <insert date of
conviction>.<Repeat for each felony conviction alleged.>
The People must prove (this/these) allegation[s] beyond a reasonable
doubt. If you have a reasonable doubt whether (the defendant/
<insert name of defendant>) was convicted of (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>) was convicted of (the/an) alleged prior crime, you may
consider the fact of that prior conviction as an aggravating circumstance.
You may not consider any other evidence of alleged criminal activity as
an aggravating circumstance [except for the alleged criminal activity I
discussed in the previous instruction].
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct that alleged prior felony convictions
offered in aggravation must be proved beyond a reasonable doubt. (See 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].)
The prosecution must specify what convictions are alleged in aggravation, and the
court has a sua sponte duty to instruct the jury to consider only evidence relating to
those prior convictions. (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].)
To be admissible under factor (c), the defendant must have been convicted of the
other felony offense prior to the commission of the offenses charged in the current
case. (People v. Balderas (1985) 41 Cal.3d 144, 205 [222 Cal.Rptr. 184, 711 P.2d
480]; People v. Kaurish (1990) 52 Cal.3d 648, 702 [276 Cal.Rptr. 788, 802 P.2d
278].)
Give the bracketed portion in the final paragraph when the court is also instructing
the jury on prior violent crimes alleged in aggravation. (See CALCRIM No. 764,
Death Penalty: Evidence of Other Violent Crimes.)
In People v. Benson (1990) 52 Cal.3d 754, 811 [276 Cal.Rptr. 827, 802 P.2d 330],
the Supreme Court held that the jury need not be unanimous about whether prior
violent crimes offered under factor (b) have been proved beyond a reasonable doubt.
534
The Supreme Court has not ruled on whether this also applies to prior felony
convictions offered under factor (c). If the court determines that the jury need not be
unanimous about whether prior felony convictions have been proved beyond a
reasonable doubt, the court may, on request, add the following paragraph:
Each of you must decide for yourself whether the People have proved that the
defendant was convicted of an alleged crime. You do not all need to agree
whether an alleged conviction has been proved. If any juror individually
concludes that an alleged conviction 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 conviction has not been
proved, that juror must disregard the evidence completely.
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 been convicted of
the prior felony in the places indicated in the instruction.
AUTHORITY
• Factor (c). Pen. Code, § 190.3.
• 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].
• Must Pre-Date Current Offense. People v. Balderas (1985) 41 Cal.3d 144, 205
[222 Cal.Rptr. 184, 711 P.2d 480]; People v. Kaurish (1990) 52 Cal.3d 648, 702
[276 Cal.Rptr. 788, 802 P.2d 278].
• Defendant May Raise Constitutional Challenge to Prior. People v. La Fargue
(1983) 147 Cal.App.3d 878, 890 [195 Cal.Rptr. 438].
• Out-of-State Convictions. People v. Lang (1989) 49 Cal.3d 991, 1038-1039
[264 Cal.Rptr. 386, 782 P.2d 627].
• Constitutional to Admit Evidence of Prior Convictions. People v. Kaurish
(1990) 52 Cal.3d 648, 701 [276 Cal.Rptr. 788, 802 P.2d 278].
RELATED ISSUES
Out-of-State Felony Convictions
“In the absence of limitation, a reference to ‘prior felony convictions’ is deemed to
include any prior conviction which was a felony under the laws of the convicting
jurisdiction.” (People v. Lang (1989) 49 Cal.3d 991, 1038-1039 [264 Cal.Rptr. 386,
782 P.2d 627].) Thus, the out-of-state prior does not have to qualify as a felony
under California law. (Ibid.)
Constitutional Challenge
The defendant may bring a constitutional challenge to the validity of the prior
conviction. (People v. La Fargue (1983) 147 Cal.App.3d 878, 890 [195 Cal.Rptr.
438].) If the conviction is from another country, the defendant may challenge the
HOMICIDE CALCRIM No. 765
535
prior on the basis that the foreign jurisdiction does not provide the procedural
safeguards mandated by the United States Constitution. (Ibid.)
Evidence of Charges and Underlying Facts Not Admissible, Only Conviction
“Because the . . . burglaries were nonviolent crimes, only evidence authenticating
defendant’s conviction for these crimes was relevant and admissible under section
190.3, factor (c). Unlike violent criminal activity admissible under factor (b), the
charges leading to a conviction of a nonviolent crime are inadmissible.” (People v.
Kaurish (1990) 52 Cal.3d 648, 703 [276 Cal.Rptr. 788, 802 P.2d 278] [emphasis in
original]; People v. Stanley (1995) 10 Cal.4th 764, 819 [42 Cal.Rptr.2d 543, 897
P.2d 481] [facts admissible under factor (b) but not under factor (c)].)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 562.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.23, 87.24 (Matthew Bender).
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536

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