NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Capital Punishment Handbook: State Law Summaries - California

        a.     History
        b.     Capital Offenses
        c.     Representation In Capital Cases
        d.     Trial Of Capital Offense
        e.     Capital Sentencing: Penalty Hearing
        f.     Aggravating Circumstances
        g.     Mitigating Circumstances
        h.     Automatic Application For Modification Of Verdict
        i.      Appellate Review Of Capital Sentences: Standard Of Review
        j.      Proportionality Review
        k.     Appeal Of Death Judgment
        l.      Collateral Remedies: Habeas Corpus
        m.    Appellate Review Of Collateral Proceedings
        n.     Procedural Bar/Waiver/Exhaustion
        o.     Execution
        p.     Competency For Execution
        q.     Stays Of Execution
        r.     Clemency Procedures

In 1972, the California Supreme Court declared that the state death penalty law violated the California constitutional prohibition against “cruel or unusual punishment.” Peoplev. Anderson, 6 Cal. 3d 628, 493 P.2d 880, 100 Cal. Rptr. 152, cert. denied, 406 U.S.958 (1972). That same year, California voters responded to Anderson by approving Proposition 17, a constitutional amendment sanctioning capital punishment. However, the U.S. Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972), rendered four months after Anderson, blocked Proposition 17 from reviving the death penalty.

As a result of Furman, California adopted a mandatory death penalty scheme in 1973. The statute imposed the death sentence for first degree murder if the trier of fact found particular enumerated special circumstances. However, following the U.S. Supreme Court’s decision in Gregg v. Georgia, 428 U.S. 153 (1976), the California Supreme Court issued a unanimous decision striking down California’s mandatory death penalty law. Rockwell v. Superior Court, 18 Cal. 3d 420, 556 P.2d 1101, 134 Cal. Rptr. 650 (1976).

The state legislature responded rapidly to Rockwell. Adopted in 1977, over a gubernatorial veto, California Senate Bill 155 endeavored to conform California’s procedures to Gregg and its companion cases. The bill provided that a person convicted of first degree murder could be sentenced to death if the trier of fact found one of seven “special circumstances” and decided on death after weighing the aggravating and mitigating factors. One year later, the electorate approved Proposition 7, which expanded the list of special circumstances for which death could be imposed and altered procedures for weighing mitigating and aggravating circumstances in capital cases. The California Supreme Court has upheld California Senate Bill 155 and the subsequent initiative.

In the 1990 election, California voters approved Propositions 114 and 115, which enlarged the list of special circumstances for which a death sentence could be  imposed. Proposition 115 also amended the state constitution, preventing any interpretation affording greater rights to defendants than those afforded by the federal Constitution; however, the state supreme court invalidated this provision, ruling that it amounted to a qualitative constitutional revision which could not be accomplished through the initiative process. See Raven v. Deukmejian, 52 Cal. 3d 336, 801 P.2d 1077, 276 Cal. Rptr. 326 (1990).

Gregg v. Georgia, 428 U.S. 153 (1976) (ruling mandatory death sentencing schemes unconstitutional).

Furman v. Georgia, 408 U.S. 238 (1972) (invalidating as unconstitutional state capital death statutes which granted juries unguided discretion to impose the death penalty).

People v. Alvarez, 14 Cal. 4th 155, 926 P.2d 365, 58 Cal. Rptr. 2d 385 (1996) (holding California death penalty law not superseded by 1994 three strikes law (codified at California Penal Code §§ 667 and 1170), cert. denied, 522 U.S. 829 (1997).

Yoshisato v. Superior Court, 2 Cal. 4th 978, 831 P.2d 327, 9 Cal. Rptr. 2d 102 (1992) (holding Propositions 114 and 115 complementary and effective to extent no conflict between them).

Raven v. Deukmejian, 52 Cal. 3d 336, 801 P.2d 1077, 276 Cal. Rptr. 326 (1990) (rejecting contention that death penalty provisions in Proposition 115 were unconstitutional; however, finding provision in Proposition 115 preventing construction of state constitution to afford greater rights than those afforded by U.S. Constitution unconstitutional as qualitative amendment of state constitution, not allowed by initiative process).

People v. Jackson, 28 Cal. 3d 264, 618 P.2d 149, 168 Cal. Rptr. 603 (1980) (ruling California death penalty statute weighing aggravating and mitigating circumstances constitutional), cert. denied, 450 U.S. 1035 (1981).

Rockwell v. Superior Court, 18 Cal. 3d 420, 556 P.2d 1101, 134 Cal. Rptr. 650 (1976) (striking down California’s mandatory death penalty sentencing scheme).

People v. Anderson, 6 Cal. 3d 628, 493 P.2d 880, 100 Cal. Rptr. 152 (ruling California’s death penalty cruel and unusual punishment under California constitution), cert. denied, 406 U.S. 958 (1972).

The death penalty is statutorily authorized for first degree murder committed under special circumstances. The alternative sentence for a capital crime is life imprisonment without parole. Other capital offenses include treason, train wrecking, perjury resulting in execution of an innocent person, killing by a convict under life sentence, and sabotage causing death. There is no reported case involving a capital conviction for any of these latter crimes.

California Penal Code § 190.5 prohibits imposition of the death penalty on a person who was under 18 years old at the time of the commission of the crime. Furthermore in 2005, in Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court held that the Eighth and Fourteenth Amendments forbid the imposition of the death penalty on those who were under the age of 18 at the time their crimes were committed.

The United States Supreme Court held in Atkins v. Virginia, 536 U. S. 304 (2002), that the execution of the mentally retarded constitutes cruel and unusual  punishment prohibited by the Eighth Amendment. See § 1.6. Accordingly, in 2003, the California Legislature added Penal Code § 1376, prohibiting the execution of the mentally retarded. “Mentally retarded” is defined as the condition of significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before the age of 18. Section 1376 also provides that a defendant in any case in which the prosecution seeks the death penalty may apply for an order directing that a mental retardation hearing be held and requires the court to order a hearing to determine whether a defendant is mentally retarded upon submission of a declaration by a qualified expert opining that the defendant is mentally retarded. At the request of the defendant, the court must conduct the hearing without a jury prior to the commencement of the trial, or if the defendant does not request a court hearing at that time, to conduct the hearing at the conclusion of the trial. The defense has the burden of proving by a preponderance of the evidence that the defendant is mentally retarded. The penalty for a mentally retarded defendant found guilty of murder in the first degree where special circumstances which would otherwise make him or her eligible for imposition of the death penalty have been found, is life without possibility of parole. If, after a mental retardation hearing, the court or jury finds that the defendant is not mentally retarded, the trial must proceed as in any other case in which a sentence of death is sought by the prosecution, and the criminal jury must not be informed of the prior proceedings or the findings concerning the defendant's claim of mental retardation.

United States Supreme Court:

Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed).

Atkins v. Virginia, 536 U.S. 304 (2002) (holding that executing the mentally retarded violates the Eighth Amendment’s prohibition against cruel and unusual punishment).

California Supreme Court:

People v. Smithey, 20 Cal. 4th 936, 978 P.2d 1171, 86 Cal. Rptr. 2d 243 (1999) (declining to rule on constitutionality of executing the mentally retarded upon finding that defendant is not mentally retarded by other state standards; note concurring opinion of Mosk, J., stating that execution of mentally retarded now violates Eighth Amendment because of “evolving standards of decency”), cert. denied, 529 U.S. 1026 (2000).

Cal. Mil. & Vet. Code § 1672(a) (West 1988) (defining death caused in acts hindering defense or preparation for war as capital offense).

Cal. Penal Code § 128 (West 1999) (defining perjury causing conviction and execution of innocent person as a capital offense).

Cal. Penal Code § 190 (West Supp. 2006) (providing that first degree murder is a capital offense).

Cal. Penal Code § 219 (West 1999) (providing that train wrecking which results in death is a capital offense).

Cal. Penal Code § 1376 (West Supp. 2006) (prohibiting imposition of death penalty on defendant who is mentally retarded; providing for hearing to determine mental retardation).

In capital cases, the trial court will appoint counsel to represent an indigent defendant at all preliminary and trial proceedings. Effective January 1, 2003, California Rule of Court 4.117 establishes qualifications for appointed trial counsel in capital cases; however, the rule provides that it is not intended to be a standard by which to measure if the defendant received effective assistance of counsel. Even if the defendant can but does not employ counsel, the court will assign counsel after a reasonable time. The trial court may appoint capital co-counsel upon a written request by the first appointed attorney. Capital defendants are entitled to “reasonably necessary” compensation of trial expert and investigative services upon request to the court. Capital trial counsel, whether retained by the defendant or court-appointed, continue to represent the defendant until the entire record on the automatic appeal is certified.

California Supreme Court:

People v. Dent, 30 Cal.4th 213, 65 P.3d 1286, 132 Cal. Rptr. 2d 527 (2003) (holding that trial court committed reversible error in denying defendant’s request to represent himself because “it was a death penalty case”).

People v. Marshall, 15 Cal. 4th 1, 931 P.2d 262, 61 Cal. Rptr. 2d 84 (1997) (holding that a motion for self-representation may properly be denied when made in passing anger, frustration, or ambivalence, or made for the purpose of delay or to frustrate the orderly administration of justice).

People v. Windham, 19 Cal. 3d 121, 560 P.2d 1187, 137 Cal. Rptr. 8 (1977) (holding that defendant must make an unequivocal assertion of his right to self-representation within a reasonable time prior to the commencement of trial; if not, trial court has discretion to grant or deny motion), cert. denied, 434 U.S. 848 (1977). 

In re Anderson, 69 Cal. 2d 613, 447 P.2d 117, 73 Cal. Rptr. 21 (1968) (holding counsel will be provided to indigent capital defendants in California Supreme Court postconviction review, postconviction review of state court judgments in the U.S. Supreme Court, and applications for executive clemency and sanity hearings), cert. denied, 406 U.S. 971 (1972).

Cal. Gov’t Code § 68660, et seq. (West Supp. 2006) (creating California Habeas Corpus Resource Center; appointing capital postconviction counsel; prohibiting postconviction counsel representation by trial or appellate counsel; providing minimum rate of $125 hourly compensation (in 2005, raised to $130).

In California, the superior court is the trial court for capital murder. California’s death penalty statute provides for a bifurcated trial procedure with a jury participating in both the guilt and penalty phases. In addition to determining whether the defendant is guilty of first degree murder, the guilt phase jury also must determine beyond a reasonable doubt whether at least one statutory special circumstance exists before the defendant is eligible for the death penalty. Even if the court convicts the defendant at a bench trial or the defendant pleads guilty, a jury still determines the truth of a special circumstance unless both the defense and the state waive a jury determination. If the state alleges a special circumstance requiring proof of the commission or attempted commission of a crime, the state must charge and prove the crime.

The trier of fact must make special findings for each special circumstance, stating whether each is or is not true. The jury must find beyond a reasonable doubt that at least one special circumstance is “true” for the case to proceed to a capital penalty phase.

If a defendant is found guilty by a jury, but the jury is unable to reach a unanimous verdict as to whether one or more of the charged special circumstances is true or whether all of the special circumstances are not true, the court must impanel a new jury to retry the special circumstances. If the second jury also is unable to reach a unanimous verdict on one or more of the special circumstances, the court can either impanel a third jury to try the undetermined special circumstances or impose a twentyfive-year to life sentence.

The special circumstances enumerated in California Penal Code § 190.2(a) are:

(4) murder committed by destructive device, bomb, or explosive planted, hidden, or concealed;

(5) murder committed to avoid or prevent arrest or to escape from lawful custody;

Under § 190.2(c), when a defendant’s guilt of first degree murder is based on evidence that the defendant aided and abetted another in killing, rather than the defendant personally committed the killing, a special circumstance cannot be found “true” unless the prosecution also proves beyond a reasonable doubt that the defendant harbored the specific intent to kill and intentionally aided in a killing. People v. Anderson, 43 Cal. 3d 1104, 742 P.2d 1306, 240 Cal. Rptr. 585 (1987).

Webster v. Woodford, 369 F.3d 1062 (9th Cir.) (holding in a pre-AEDPA capital case that petitioner’s due process rights were not denied by a judicial expansion of California’s definition of death-qualifying special circumstances-- “immediatepresence” element of robbery and what constituted “lying in wait for murder (that lying in wait could occur without physical concealment)--because the California Supreme Court’s construction was readily foreseeable), cert. denied, 125 S. Ct. 626 (2004).

Morales v. Woodford, 388 F.3d 1159 (9th Cir. 2004) (holding in a pre-AEDPA capital case that California’s special circumstance of lying in wait did not violate the Eighth Amendment on its face because it was not unconstitutionally vague and was not overly broad such that it applied to every defendant convicted of a murder; also holding that the trial court gave an improper instruction on a torture special circumstance, but the error was harmless; but see the opinion of McKeown, J, concurring in part and dissenting in part, expressing view that the lying-in-wait special circumstance violated the Eighth Amendment because the confluence of lying-in-wait and other types of murder was virtually complete in California), amending and superseding opinion at 336 F.3d 1136 (9th Cir. 2003), cert. denied, 126 S. Ct. 420 (2005).

In re Sakarias, 35 Cal. 4th 140, 106 P.3d 931, 25 Cal. Rptr. 3d 265 (2005) (granting a petition for a writ of habeas corpus as to one capital habeas petitioner, but denying the petition of another, the court held that a prosecutor’s unjustified use of inconsistent and irreconcilable factual theories to convict two people of a crime only one could have committed, or to obtain harsher sentences for both on the basis of an act only one could have committed, violates due process because in those circumstances the state has necessarily convicted or sentenced a person on a false factual basis).

People v. Prieto, 30 Cal.4th 226, 66 P.3d 1123, 133 Cal. Rptr. 2d 18 (holding that although Ring v. Arizona undermines the holding in People v. Odle (1988) 45 Cal.3d 386, 754 P.2d 184, 247 Cal. Rptr. 137, that there is no right under the Sixth or Eighth Amendments to have a jury determine the existence of all of the elements of a special circumstance, erroneous jury instruction that omits an element of a special circumstance is still subject to harmless error analysis; holding that instructional error in felony murder special circumstance instructions was harmless), cert. denied, 540 U.S. 1008 (2003).

People v. Trevino, 26 Cal. 4th 237, 27 P.3d 283, 109 Cal. Rptr. 2d 567 (2001) (holding that conviction in another jurisdiction may be deemed conviction of first or second degree murder under § 190.2(a)(2) (prior-murder special circumstance) if offense involved conduct satisfying all elements of offense of murder under California law, regardless of whether defendant, when he committed that offense, was old enough to be tried as an adult in California).

People v. Catlin, 26 Cal. 4th 81, 26 P.3d 475, 109 Cal. Rptr. 2d 31 (2001) (holding the special circumstance of murder by poison does not violate the Eighth Amendment), cert. denied, 535 U.S. 976 (2002).

People v. Anderson, 25 Cal. 4th 543, 22 P.3d 347, 106 Cal. Rptr. 2d 575 (2001) (holding § 190.2 does not impose overbroad death eligibility, either because of number and scope of special circumstances or because it permits capital exposure for unintentional felony murder), cert. denied, 534 U.S. 1136 (2002).

People v. Musselwhite, 17 Cal. 4th 1216, 954 P.2d 475, 74 Cal. Rptr. 2d 212 (1998) (stating felony murder special circumstance § 190.2(a)(17) is not constitutionally limited to premeditated and deliberate murders), cert. denied, 525 U.S. 1073 (1999).

People v. Dennis, 17 Cal. 4th 468, 950 P.2d 1035, 71 Cal. Rptr. 2d 680 (holding California Penal Code § 12022.9 is a sentencing enhancement and not an alternative to multiple murder special circumstance), cert. denied, 525 U.S. 912 (1998).

People v. Williams, 16 Cal. 4th 635, 941 P.2d 752, 66 Cal. Rptr. 2d 573 (1997) (reversing trial court’s special circumstance multiple murder finding because judge failed to instruct special circumstance/penalty phase jury on intent to kill where defendant was aider/abettor, even though first jury, which deadlocked on finding special circumstances, found defendant guilty as aider/abettor on four counts of first degree murder), cert. denied, 523 U.S. 1027 (1998).

People v. Stanley, 10 Cal. 4th 764, 897 P.2d 481, 42 Cal. Rptr. 2d 543 (1995) (stating law-of-the-case doctrine can apply to preclude California Supreme Court review of issue on automatic appeal already decided by state court of appeal in writ proceeding prior to judgment), cert. denied 517 U.S. 1208 (1996).

People v. Bacigalupo, 6 Cal. 4th 457, 862 P.2d 808, 24 Cal. Rptr. 2d 808 (1993) (analyzing California 1978 capital statute, stating that it follows constitutionally mandated guided discretion and narrowing of defendants eligible for death penalty), cert. denied, 512 U.S. 1253 (1994).

People v. Sanders, 51 Cal. 3d 471, 797 P.2d 561, 273 Cal. Rptr. 537 (1990) (finding heinous, atrocious, or cruel special circumstance unconstitutionally vague but holding error not prejudicial as to death judgment), cert. denied, 500 U.S. 948 (1991).

People v. Andrews, 49 Cal. 3d 200, 776 P.2d 285, 260 Cal. Rptr. 583 (1988) (addressing prior murder special circumstance), cert. denied, 494 U.S. 1060 (1990).

People v. Morales, 48 Cal. 3d 527, 770 P.2d 244, 257 Cal. Rptr. 64 (discussing lying in-wait special circumstance), cert. denied, 493 U.S. 984 (1989).

People v. Keenan, 46 Cal. 3d 478, 758 P.2d 1081, 250 Cal. Rptr. 550 (1988) (rejecting unconstitutionality challenge on basis of prosecutor’s discretion in choosing to seek death penalty), cert. denied, 490 U.S. 1012 (1989).

People v. Bunyard, 45 Cal. 3d 1189, 756 P.2d 795, 249 Cal. Rptr. 71 (1988) (finding no federal or state constitutional infirmity in applying the multiple-murder special circumstance to murder of woman and unborn viable fetus).

People v. Howard, 44 Cal. 3d 375, 749 P.2d 279, 243 Cal. Rptr. 842 (addressing purpose of financial gain special circumstance), cert. denied, 488 U.S. 871 (1988).

People v. Anderson, 43 Cal. 3d 1104, 742 P.2d 1306, 240 Cal. Rptr. 585 (1987) (holding that intent to kill is not an element of the felony murder or multiple murder special circumstance, unless the defendant is the aider and abettor rather than the actual killer), overruling Carlos v. Superior Court, 35 Cal. 3d 131, 672 P.2d 862, 197 Cal. Rptr. 79 (1983) and People v. Turner, 37 Cal. 3d 302, 690 P.2d 669, 208 Cal. Rptr. 196 (1984) .

People v. Ghent, 43 Cal. 3d 739, 739 P.2d 1250, 239 Cal. Rptr. 82 (1987) (holding court may excuse for cause juror whose views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath, adopting Wainwright v. Witt, 469 U.S. 412 (1985)), cert. denied, 485 U.S. 929 (1988).

People v. Hendricks, 43 Cal. 3d 584, 737 P.2d 1350, 238 Cal. Rptr. 66 (1987) (holding prior murder special circumstance may be established by a conviction for a murder that occurred after the murder at issue; finding reversible error where trial court reconvened original jury five months later for sanity determination).

People v. Superior Court, ex rel. Engert, 31 Cal. 3d 797, 647 P.2d 76, 183 Cal. Rptr. 800 (1982) (holding subdivision (a)(14) (heinous, atrocious, or cruel murder) unconstitutionally vague and violative of the due process clause of the Fourteenth Amendment of the United States Constitution and article I, sections 7 subdivision (a) and 15 of the Constitution of the State of California).

People v. Rodriguez, 66 Cal. App. 4th 157, 77 Cal. Rptr. 2d 676 (1998) (holding special circumstance § 190.2(a)(21)–shooting from a motor vehicle–not facially unconstitutional).

Covarrubias v. Superior Court, 60 Cal. App. 4th 1168, 71 Cal. Rptr. 2d 91 (1998) (holding Cal. Civ. P. § 223, adopted in 1990 by Proposition 115, abrogates the holding in Hovey v. Superior Court, 28 Cal. 3d 1, 616 P.2d 1301, 168 Cal. Rptr. 128 (1980), requiring individual sequestered voir dire in capital cases).

People v. Proby, 60 Cal. App. 4th 922, 70 Cal. Rptr. 2d 706 (1998) (holding trial court did not err in rejecting requested instruction defining “major participant” in felony murder aider and abettor special circumstance trial, reasoning that “major participant” is commonly understood and not used in a technical sense).

Cal. Const. art. VI, § 11 (requiring exclusive appellate jurisdiction of capital cases to California Supreme Court).

Cal. Penal Code § 190.1(a) (West 1999) (providing for trier of fact to first determine guilt and then determine truth of special circumstance(s)).

Cal. Penal Code § 190.4(a) (West 1999) (requiring special finding by trier of fact of truth of each alleged special circumstance beyond reasonable doubt; requiring impaneling of new jury if jury cannot make unanimous finding; providing truth of special circumstances is to be decided by jury, unless waived).

If the trier of fact finds at least one special circumstance to be true, the defendant is eligible for the death penalty. Except on a showing of good cause, the same jury that determined the defendant’s guilt will also determine the defendant’s sentence if the prosecution seeks the death penalty. If the jury cannot reach a unanimous sentencing determination, the court impanels a second jury for the task. If the second jury cannot reach a unanimous verdict, the court may either impanel a third jury or impose a sentence of life imprisonment without parole. If the defendant was convicted without a jury, the court is required to impanel a sentencing jury unless a jury is waived by both the defense and the prosecution.

Section 190.3 of the California Penal Code lists specific factors for the sentencer to weigh, if relevant, when determining the penalty. The factors are not broken down into aggravating or mitigating circumstances. This undifferentiated approach is mirrored in California’s model jury instruction. The instruction lists eleven statutory factors and directs the jurors to consider and be guided by the listed factors “if applicable.” The § 190.3 factors are:

(d) whether offense was committed while defendant was under influence of extreme mental or emotional disturbance;

(e) whether victim was a participant in defendant’s homicidal conduct or consented to the homicidal act;

(f) whether offense was committed under circumstances that defendant reasonably believed to be a moral justification or extenuation for conduct;

(g) whether offense was committed while defendant was under extreme duress or under the substantial domination of another person;

(h) capacity of defendant to appreciate criminality of his or her conduct or to conform conduct to law, whether impaired from mental disease or defect, or intoxication;

(j) whether defendant was accomplice to offense and level of participation relatively minor;

(k) any other circumstance which extenuates gravity of crime even though not a legal excuse for the crime.

The 1977 version of § 190.3 allowed parties to introduce “any matter relevant to aggravation, mitigation, and sentence” at the penalty phase. In 1978, the legislature amended § 190.3 to its current form, requiring the sentencer to impose a sentence of death after considering the statutorily enumerated relevant factors and determining that the aggravating circumstances outweigh the mitigating circumstances. In People v. Boyd, 38 Cal. 3d 762, 700 P.2d 782, 215 Cal. Rptr. 1 (1985), the court held that aggravating evidence not relevant to a listed factor is not admissible at sentencing. The court reasoned that the amended statute limits consideration of evidence to the statutorily listed relevant factors. The Boyd court, however, recognized that the statute did not preclude admission of any evidence weighing in favor of mitigation. Boyd, 38 Cal. 3d at 775, 700 P.2d at 791, 215 Cal. Rptr. at 10.

The jury may return a capital sentence only if it finds that the aggravating factors so substantially outweigh the mitigating factors that death, rather than life imprisonment, is appropriate. People v. Tuilaepa, 4 Cal. 4th 569, 842 P.2d 1142, 15 Cal. Rptr. 2d 382 (1992). Otherwise, the sentencer must impose a sentence of life without possibility of parole.

Section 190.3 specified that the court instruct the trier of fact at the penalty hearing that a sentence of life without possibility of parole may in the future be commuted or modified by the governor to one that includes the possibility of parole. Although it has not been found to violate the federal constitution, the California Supreme Court found this statutorily-mandated instruction in People v. Ramos, 37 Cal. 3d 136, 689 P.2d 430, 207 Cal. Rptr. 800 (1984) to be so misleading as to violate the California Constitution’s guarantee of due process.

Brown v. Sanders, 126 S. Ct. 884 (2006) (holding an invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances”; also holding that, despite the fact that the California Supreme Court invalidated two special circumstances on direct appeal, there was no constitutional error in the jury’s consideration of the invalid eligibility factors in the weighing process because all the facts necessary to establish the “heinous, atrocious, or cruel” and burglary-murder eligibility factors were also properly adduced as aggravating facts bearing upon the “circumstances of the crime” sentencing factor). 

Tuilaepa v. California, 512 U.S. 967 (1994) (stating that a capital sentencer need not be instructed how to weigh any particular fact in the capital sentencing decision).

People v. Lewis, 26 Cal. 4th 334, 28 P.3d 34, 110 Cal. Rptr. 2d 272 (2001) (holding that juries are not required to (1) make written findings regarding aggravating circumstances, (2) achieve unanimity as to aggravating circumstances, (3) find beyond a reasonable doubt that either aggravating circumstances are proved (other than other criminal conduct) and the aggravating circumstances outweigh those in mitigation, or that death is the appropriate penalty), cert. denied, 535 U.S. 1019 (2002). 

People v. Earp, 20 Cal. 4th 826, 978 P.2d 15, 85 Cal. Rptr. 2d 857 (1999) (discussing various challenges to, and upholding constitutionality of CALJIC 8.85–instruction that enumerates sentencing factors but fails to define as aggravators or mitigators), cert.  denied, 529 U.S. 1005 (2000).

People v. Hart, 20 Cal. 4th 546, 976 P.2d 683, 85 Cal. Rptr. 2d 132 (1999) (holding clemency instruction not constitutionally deficient where, upon jury inquiry, court failed to instruct regarding procedure for twice-convicted felon), cert. denied, 528 U.S. 1085 (2000).

People v. Frye, 18 Cal. 4th 894, 959 P.2d 183, 77 Cal. Rptr. 2d 25 (1998) (holding defendant does not have the right to be absent at capital penalty hearing), cert. denied, 526 U.S. 1023 (1999).

People v. Carpenter, 15 Cal. 4th 312, 935 P.2d 708, 63 Cal. Rptr. 2d 1 (1997) (holding trial court did not abuse discretion selecting penalty jury before selecting guilt jury, and having penalty jury hear guilt evidence), cert. denied, 522 U.S. 1078 (1998).

People v. Hawkins, 10 Cal. 4th 920, 897 P.2d 574, 42 Cal. Rptr. 2d 636 (1995) (holding defendant’s constitutional rights not violated by introduction of second jury on penalty phase after first jury deadlocked on question of whether death penalty should be imposed), cert. denied, 517 U.S. 1193 (1996).

People v. Kirkpatrick, 7 Cal. 4th 988, 874 P.2d 248, 30 Cal. Rptr. 2d 248 (1994) (stating “aggravating” and “mitigating” are commonly understood terms that trial court need not define for the jury), cert. denied, 514 U.S. 1015 (1995).

People v. Duncan, 53 Cal. 3d 955, 979, 810 P.2d 131, 281 Cal. Rptr. 273 (1991) (stating that “[t]he jury may decide, even in the absence of mitigating evidence, that the aggravating evidence is not comparatively substantial enough to warrant death”).

People v. Edelbacher, 47 Cal. 3d 983, 1035, 766 P.2d 1, 254 Cal. Rptr. 586 (1989) (stating that jurors are entitled to vote for a life sentence if they believe that the death penalty is not “appropriate” under the circumstances).

People v. McLain, 46 Cal. 3d 97, 115, 757 P.2d 569, 249 Cal. Rptr. 630 (1988), citing Brown, 40 Cal. 3d at 540–41 (interpreting the “shall” of § 190.3 “to require jurors to make an individualized moral assessment on the basis of the character of the defendant and the circumstances of the crime, and thereby decide which penalty is appropriate in the particular case”).

People v. Brown, 40 Cal. 3d 512, 709 P.2d 440, 220 Cal. Rptr. 637, (1985) (concluding 1978 amendment to § 190.3 preserves jury’s constitutional discretion to decide appropriate penalty; declining to interpret “shall” and “weighing” as limiting scope of the jury’s ultimate discretion), rev’d on other grounds, 479 U.S. 538 (1987).

People v. Boyd, 38 Cal. 3d 762, 700 P.2d 782 , 215 Cal. Rptr. 1 (1985) (holding that aggravating evidence not relevant to a listed § 190.3 factor is not admissible at sentencing since the amended statute limits consideration of evidence to the statutorily listed relevant factors; recognizing that § 190.3 does not preclude admission of any evidence weighing in favor of mitigation).

People v. Ramos, 37 Cal. 3d 136, 689 P.2d 430, 207 Cal. Rptr. 800 (1984) (holding mandatory jury instruction–stating that life without parole is subject to gubernatorial commutation–violates due process clause of California constitution as seriously misleading and inviting speculative and improper considerations), cert. denied, 471 U.S. 1119 (1985). 

Cal. Penal Code § 190.3 (West 1999) (enumerating relevant factors in aggravation and mitigation; requiring sentencer to consider listed factors and determine whether aggravating circumstances outweigh mitigating circumstances; requiring notice of aggravators by prosecution).

Cal. Penal Code § 190.4(a) (West 1999) (providing for penalty jury when defendant’s guilt adjudicated by court).

CALCRIM 763 (providing model jury instructions listing factors for consideration at penalty trial, leaving aggravating and mitigating undifferentiated) (adopted 2005).

CALJIC 8.85 (providing model jury instructions listing factors for consideration at penalty trial, leaving aggravating and mitigating undifferentiated).

As discussed above, a prosecutor may not introduce evidence in aggravation unless it is relevant to one of the statutory factors. However, the prosecutor may offer evidence not related to a statutory factor to rebut a defendant’s mitigating evidence. The prosecution’s rebuttal evidence must relate directly to the defendant’s evidence in mitigation. “The scope of rebuttal must be specific, and evidence presented or argued as rebuttal must relate directly to a particular incident of character trait defendant offers in his own behalf.” However, if a defendant places his general character in issue, the prosecutor may be entitled to rebut with evidence or argument suggesting a more balanced picture of his personality. See People v. Ramirez, 50 Cal. 3d 1158, 1193, 791 P.2d 965, 270 Cal. Rptr. 286 (1990); People v. Rodriguez, 42 Cal. 3d 730, 726 P.2d 113, 230 Cal. Rptr. 667 (1986); People v. Boyd, 38 Cal. 3d 762, 776–77, 700 P.2d 782, 215 Cal. Rptr. 1 (1985).

Three factors frequently relied upon as factors in aggravation are: (1) circumstances of the crime and existence of the special circumstances which were found to be true; (2) other violent criminal activity; or (3) prior felony convictions.

There are four important caveats regarding the sentencing factor relating to other violent criminal activity. First, the actions of the defendant must have involved force or violence or the threat of force or violence. People v. Burton, 48 Cal. 3d 843, 862, 771 P.2d 1270, 258 Cal. Rptr. 184 (1989). Second, the necessary “force or violence” must be directed toward persons. People v. Boyd, 38 Cal. 3d 762, 776–77, 700 P.2d 782, 215 Cal. Rptr. 1 (1985). Third, the activity must amount to conduct that violates a penal statute. People v. Clair, 2 Cal. 4th 629, 672, 828 P.2d 705, 7 Cal. Rptr. 2d (1992). Evidence of violent juvenile conduct that would have been a crime if committed by an adult is admissible under § 190.3, factor (b). People v. Avena, 13 Cal. 4th 394, 426, 916 P.2d 1000, 53 Cal. Rptr. 2d 301 (1996). And, fourth, evidence of other criminal activity involving force or violence may be admitted in aggravation only if it can support a finding by a rational trier of fact as to the existence of such activity beyond a reasonable doubt. People v. Clair, 2 Cal. 4th 629, 672, 828 P.2d 705, 7 Cal. Rptr. 2d 564 (1992).

The evidence of other violent crimes need not have been the subject of a prior prosecution or conviction. People v. Coleman, 48 Cal. 3d 112, 148, 768 P.2d 32, 255 Cal. Rptr. 813 (1989). The evidence is admissible even if it was included in a charge that was dismissed without determination of its merits. People v. Ghent, 43 Cal. 3d 739, 774, 739 P.2d 1250, 239 Cal. Rptr. 82 (1987). However, evidence of prior criminal activity may not be admitted if it relates to an offense for which the defendant was prosecuted and acquitted. Cal. Penal Code § 190.3.

Although the jurors are required to find beyond a reasonable doubt that the criminal activity occurred before they may consider the facts as evidence in aggravation, the trial court need not instruct on the elements of unadjudicated crimes admitted as evidence in aggravation. People v. Heishman, 45 Cal. 3d 147, 183–184, 753 P.2d 629, 246 Cal. Rptr. 673 (1988).

The California cases have repeatedly emphasized that a capital defendant’s “‘mere failure to confess guilt or express remorse’ at a later time is not a circumstance of the crime, does not fit within any other statutory sentencing factor, and thus should not be urged as aggravating.” People v. Cain, 10 Cal. 4th 1, 77 n.31, 892 P.2d 1224, 40 Cal. Rptr. 2d 482 (1995) (quoting People v. Gonzalez, 51 Cal. 3d 1179, 1232, 800 P.2d 1159, 275 Cal. Rptr. 729 (1990). When dealing with evidence of remorse, three general legal principles govern California law.

First and foremost, “a defendant’s lack of remorse may not be considered by the jury as a factor in aggravation.” People v. Williams, 16 Cal. 4th 153, 254, 940 P.2d 710, 66 Cal. Rptr. 2d 123 (1997), cert. denied, 522 U.S. 1150 (1998) (quoting People v. Sims, 5 Cal. 4th 405, 465, 853 P.2d 992, 20 Cal. Rptr. 537 (1993). 

Second, the defendant may, if he or she chooses to do so, introduce evidence of remorse. The California courts recognize that the jury’s obligation “to consider ‘[a]nything mitigating’” necessarily encompasses “evidence of . . . remorse.” People v. Ochoa, 19 Cal. 4th 353, 459, 966 P.2d 442, 79 Cal. Rptr. 2d 408 (1998), cert. denied, 528 U.S. 862 (1999). As a result of this, if the defendant introduces evidence of remorse, the prosecution may, by way of rebuttal, introduce evidence of a defendant’s lack of remorse. However, even though the prosecution may be allowed to introduce evidence that the defendant lacked remorse, the California courts have made manifestly clear that “lack of remorse, because it suggests the absence of a mitigating factor, is deemed a relevant factor in the jury’s determination as to whether the factors in aggravation outweigh those in mitigation, and [is] thus an appropriate subject of comment by the prosecutor, so long as he or she does not argue that lack of remorse constitutes a factor in aggravation.” People v. Champion, 9 Cal. 4th 879, 943, 891 P.2d 93, 39 Cal. Rptr. 2d 547 (1995) (quoting People v. Crittenden, 9 Cal. 4th 83, 150, 885 P.2d 887, 36 Cal. Rptr. 2d 474 (1994).

The third important caveat is that, in evaluating whether a defendant has expressed or exhibited remorse, “a prosecutor is not permitted to argue that the defendant’s failure to confess should be deemed evidence of lack of remorse.” People v. Frye, 18 Cal. 4th 894, 1019, 959 P.2d 183, 77 Cal. Rptr. 2d 25 (1998) (citing People v. Coleman, 71 Cal. 2d 1159, 1169, 459 P.2d 248, 80 Cal. Rptr. 920 (1969). “Even after he has been found guilty, a defendant is under no obligation to confess, and he has a right to urge his possible innocence to the jury as a factor in mitigation of penalty.” People v. Coleman, 71 Cal. 2d 1159, 1168, 459 P.2d 248, 80 Cal. Rptr. 920 (1969) (citing People v. Terry, 61 Cal. 2d 137, 145–47, 390 P.2d 381, 37 Cal. Rptr. 605 (1964)).

The prosecutor may introduce evidence of any prior felony conviction. The prosecution is not limited to only violent felonies. This factor does not encompass juvenile adjudications. People v. Lucky, 45 Cal. 3d 259, 295, 753 P.2d 1052, 247 Cal. Rptr. 1 (1988).

The prosecution must give the defendant notice of the evidence it intends to introduce in aggravation. No evidence may be presented by the prosecution in aggravation unless notice of that evidence to be introduced has been given to the defendant within a reasonable period of time prior to trial. However, evidence may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation. As a general matter, notice should be given before the cause is called to trial or as soon thereafter as the prosecution learns the evidence exists. People v. Daniels, 52 Cal. 3d 815, 879, 802 P.2d 906, 277 Cal. Rptr. 122 (1991). Although individual items of evidence need not be recited in detail, the notice must be sufficient to give the defendant a reasonable opportunity to prepare a defense to the allegations. People v. Howard, 44 Cal. 3d 375, 424–25, 749 P.2d 279, 243 Cal. Rptr. 842 (1988).

People v. Heard, 31 Cal. 4th 946, 75 P.3d, 4 Cal.Rptr.3d 131 (2003) (reversing a judgment as to the sentence of death and remanding for a new penalty trial before a properly selected jury because the trial court erred and was unwarranted in excusing a juror for cause, despite the juror's written response in a jury questionnaire that indicated he thought imprisonment for life without the possibility of parole represented a “worse” punishment than death where, after the trial court explained to the juror during voir dire that California law considers death the more serious punishment and that the death penalty can be imposed under California law only if the aggravating circumstances outweigh the mitigating circumstances, the juror stated he would do “whatever the law states”; under the U.S. Supreme Court cases of Gray v. Mississippi and Davis v. Minnesota, this type of error is not subject to harmless error analysis, but must be considered reversible per se with regard to any ensuing death penalty judgment), cert. denied, 541 U.S. 910 (2004).

People v. Ochoa, 19 Cal. 4th 353, 966 P.2d 442, 79 Cal. Rptr. 2d 408 (1998) (recognizing the jury’s obligation “to consider ‘[a]nything mitigating’” necessarily encompasses “evidence of . . . remorse.”), cert. denied, 528 U.S. 862 (1999).

People v. Frye, 18 Cal. 4th 894, 1019, 959 P.2d 183, 77 Cal. Rptr. 2d 25 (1998) (citing People v. Coleman, 71 Cal. 2d 1159, 1169, 80 Cal. Rptr. 920 (1969) (finding that “a prosecutor is not permitted to argue that the defendant’s failure to confess should be deemed evidence of lack of remorse”), cert. denied, 526 U.S. 1023 (1999).

People v. Williams, 16 Cal. 4th 153, 940 P.2d 710, 66 Cal. Rptr. 2d 123 (1997) (finding “a defendant’s lack of remorse may not be considered by the jury as a factor in aggravation”), cert. denied, 522 U.S. 1150 (1998).

People v. Avena, 13 Cal. 4th 394, 916 P.2d 1000, 53 Cal. Rptr. 2d 301 (1996) (finding that evidence of violent juvenile conduct that would have been a crime if committed by an adult is admissible under § 190.3, factor (b)).

People v. Cain, 10 Cal. 4th 1, 892 P.2d 1224, 40 Cal. Rptr. 2d 481 (1995) (emphasizing that a capital defendant’s “‘mere failure to confess guilt or express remorse’ at a later time is not a circumstance of the crime, does not fit within any other statutory sentencing factor, and thus should not be urged as aggravating.”

People v. Champion, 9 Cal. 4th 879, 891 P.2d 93, 39 Cal. Rptr. 2d 547 (1995) (stating use of juvenile misconduct as aggravating factor is permissible), cert. denied, 516 U.S. 105 (1996).

People v. Rodrigues, 8 Cal. 4th 1060, 885 P.2d 1, 36 Cal. Rptr. 2d 235 (1994) (stating that § 190.3 allows evidence of violent criminal activity regardless of where it occurred), cert. denied, 516 U.S. 851 (1995).

People v. Wader, 5 Cal. 4th 610, 854 P.2d 80, 20 Cal. Rptr. 2d 788 (1993) (rejecting unconstitutionality claims based on (1) jury not having to find beyond reasonable doubt that death is the appropriate penalty; (2) jury not having to find that the aggravating circumstances were true beyond a reasonable doubt; (3) jury not having to find that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt; (4) jury not required to unanimously find which aggravating circumstances are true or that the aggravating factors outweighed the mitigating factors, and (5) jury not required to make written findings on the aggravating factors found to be true), cert. denied, 512 U.S. 1253 (1994).

People v. Tuilaepa, 4 Cal. 4th 569, 842 P.2d 1142, 15 Cal. Rptr. 2d 382 (1992) (stating simple weapon possession can constitute implied threat of force as aggravation; evidence of gang affiliation may be admitted where directly relevant to material issue of otherwise admissible evidence in aggravation), aff’d, Tuilaepa v. California, 512 U.S. 967 (1994).

People v. Livatidis, 2 Cal. 4th 759, 831 P.2d 297, 9 Cal. Rptr. 2d 72 (1992) (stating where prior felony conviction was for non-violent offense, prosecution is limited to introducing and proving only the existence of the conviction, not the underlying facts), cert. denied, 507 U.S. 975 (1993).

People v. Clair, 2 Cal. 4th 629, 828 P.2d 705, 7 Cal. Rptr. 2d 564 (1992) (holding § 190.3 applies to crimes which involve implied threat of force as well as express use of force), cert. denied, 506 U.S. 1063 (1993).

People v. Ashmus, 54 Cal. 3d 932, 820 P.2d 214, 2 Cal. Rptr. 112 (1991) (stating that evidence of other violent criminal activity factor includes evidence of results and impact of such activity), cert. denied, 506 U.S. 841 (1992).

People v. Daniels, 52 Cal. 3d 815, 879, 802 P.2d 906, 277 Cal. Rptr. 122 (1991) (stating that the prosecutor must give notice of the evidence it intends to introduce in aggravation before the cause is called to trial or as soon thereafter as the prosecution learns the evidence exists).

People v. Jackson, 49 Cal. 3d 1170, 783 P.2d 279, 264 Cal. Rptr. 852 (1989) (allowing jury to consider violent crimes of which defendant was neither charged nor convicted), cert. denied, 498 U.S. 881 (1990).

People v. Bell, 49 Cal. 3d 502, 778 P.2d 129, 262 Cal. Rptr. 1 (declining to extend Murtishaw, 29 Cal. 3d 733, 631 P.2d 446, 175 Cal. Rptr. 738 (1981) to apply to prosecutor’s comments regarding potential future dangerousness), cert. denied 495 U.S. 963 (1990).

People v. Sheldon, 48 Cal. 3d 935, 771 P.2d 1330, 258 Cal. Rptr. 242 (1989) (holding evidence of other criminal activity for an offense of which defendant was acquitted may not be considered in aggravation).

People v. Coleman, 48 Cal. 3d 112, 768 P.2d 32, 255 Cal. Rrptr. 813 (1989) (holding that evidence of an unadjudicated crime is admissible even if the defendant was never charged with the crime).

People v. Grant, 45 Cal. 3d 829, 755 P.2d 894, 248 Cal. Rptr. 444 (1988) (stating evidence of other violent criminal activity need not be inherently violent, as long as it was perpetrated in a violent manner), cert. denied, 488 U.S. 1050 (1989).

People v. Lucky, 45 Cal. 3d 259, 295, 753 P.2d 1052, 247 Cal. Rptr. 1 (1988) (regarding the prior felony convictions sentencing factor, evidence of juvenile adjudications is not admissible).

People v. Heishman, 45 Cal. 3d 147, 753 P.2d 629, 246 Cal. Rptr. 673 (holding lack of remorse may be introduced by prosecution on cross-examination of defense witness in rebuttal or other testimony suggesting defendant was remorseful), cert. denied, 488 U.S. 948 (1988).

People v. Thompson, 45 Cal. 3d 86, 753 P.2d 37, 246 Cal. Rptr. 245 (stating that prosecutor may offer evidence not related to enumerated aggravating factor as rebuttal to defendant’s mitigating evidence), cert. denied, 488 U.S. 960 (1988).

People v. Melton, 44 Cal. 3d 713, 750 P.2d 741, 244 Cal. Rptr. 867 (stating § 190.3(b) permits evidence surrounding violent criminal activity, provided defendant not acquitted of criminal charge based on activity), cert. denied, 488 U.S. 934 (1988).

People v. Howard, 44 Cal. 3d 375, 749 P.2d 279, 243 Cal. Rptr. 842 (upholding admissibility of evidence of other crimes against charge that it violates due process; stating that the prosecution need not recite individual items of evidence it intends to introduce in aggravation but must give notice that is sufficient to give the defendant a reasonable opportunity to prepare a defense to the allegations), cert. denied, 488 U.S. 871 (1988).

People v. Miranda, 44 Cal. 3d 57, 744 P.2d 1127, 243 Cal. Rptr. 842 (enforcing notice requirement of § 190.3, and stating that notice need not be in writing), cert. denied, 486 U.S. 1038 (1988).

People v. Ghent, 43 Cal. 3d 739, 739 P.2d 1250, 239 Cal. Rptr. 82 (1987) (stating evidence regarding prior criminal charge which was dismissed can be introduced under § 190.3 as other crimes evidence because dismissal is not equivalent to acquittal), cert. denied, 485 U.S. 929 (1988).

People v. Davenport, 41 Cal. 3d 247, 710 P.2d 861, 221 Cal. Rptr. 794 (1985) (stating prosecution erred arguing that the absence of a mitigating factor may be considered as an aggravating factor but error was harmless).

People v. Balderas, 41 Cal. 3d 144, 711 P.2d 480, 222 Cal. Rptr. 184 (1985) (holding violent acts committed after the murder may be shown in aggravation of the offense; statute limits the evidence of prior convictions only to convictions before commission of the capital crime).

People v. Phillips, 41 Cal. 3d 29, 711 P.2d 423, 222 Cal. Rptr. 127 (1985) (holding the criminal activity factor must constitute an actual violation of the penal code). 

People v. Robertson, 33 Cal. 3d 21, 655 P.2d 279, 188 Cal. Rptr. 77 (1982) (holding that if prosecution presents evidence of other crimes for which defendant has not been convicted, trial judge must instruct jury that proof beyond reasonable doubt of such offenses is required).

People v. Murtishaw, 29 Cal. 3d 733, 631 P.2d 446, 175 Cal. Rptr. 738 (1981) (holding inadmissible as aggravating factor during penalty phase expert testimony forecasting future dangerousness), cert. denied, 455 U.S. 922 (1982).

People v. Coleman, 71 Cal. 2d 1159, 1168, 459 P.2d 248, 80 Cal. Rptr. 920 (1969) (citing People v. Terry, 61 Cal. 2d 137, 145–47, 390 P.2d 381, 37 Cal. Rptr. 605 (1964) (stating “[e]ven after he has been found guilty, a defendant is under no obligation to confess, and he has a right to urge his possible innocence to the jury as a factor in mitigation of penalty”).

Cal. Penal Code § 190.3 (West 1999) (enumerating relevant factors in aggravation and mitigation; requiring sentencer to consider listed factors and determine whether aggravating circumstances outweigh mitigating circumstances; requiring notice of aggravators by prosecution).

Section 190.3(k) allows the trier of fact to consider “any other circumstance which extenuates the gravity of the crime, even though it is not a legal excuse for the crime.” Consistent with Lockett v. Ohio, 438 U.S. 586 (1978), the California courts have interpreted this section to allow the trier to consider any mitigating evidence of the defendant’s character or record which the defendant offers. The phrase is an openended, catch-all provision, allowing the jury’s consideration of any mitigating evidence, limited only by relevance. To avoid any misunderstandings, the sentencing court must inform the jury that it can consider as a mitigating factor any other circumstance or aspect of the defendant’s character or record that the defendant proffers as a basis for sentence less than death.

In addition to the catch-all clause, § 190.3 also enumerates several nonexclusive factors the trier of fact may consider in mitigation:

(1) whether the victim was a participant in the defendant’s homicidal conduct;

(3) whether the defendant was an accomplice to the offense and his participation was relatively minor;

(4) whether the defendant committed the offense under extreme mental or emotional disturbance;

(5) whether the defendant believed he or she had a moral justification for his or her conduct;

(6) whether the defendant acted under extreme duress or domination; and (7) whether the defendant acted under mental disease or defect or the effects of intoxication.

In re Lucas, 33 Cal. 4th 682, 94 P.3d 447, 16 Cal. Rptr. 3d 331 (2004) (holding that defense counsel’s inadequate and tardy investigation of available mitigating evidence for use at the penalty phase of the case constituted ineffective assistance of counsel in view of the fact that evidence of child abuse suffered by defendant was available through several sources, and counsel's decision not to present mitigating evidence was not reasonable in the absence of counsel’s knowledge and understanding of the potential effect of this evidence).

People v. Ochoa, 19 Cal. 4th 353, 966 P.2d 442, 79 Cal. Rptr. 2d 408 (1998) (holding jury may not consider impact of death sentence on defendant’s family), cert. denied, 528 U.S. 862 (1999).

People v. Sanders, 11 Cal. 4th 475, 905 P.2d 420, 46 Cal. Rptr. 2d 751 (1995) (addressing mitigating factor of defendant’s age), cert. denied, 519 U.S. 838 (1996).

People v. Visciotti, 2 Cal. 4th 1, 825 P.2d 388, 5 Cal. Rptr. 2d 495 (addressing moral justification belief mitigating factor), cert. denied, 506 U.S. 893 (1992).

People v. Mickey, 54 Cal. 3d 612, 818 P.2d 84, 286 Cal. Rptr. 801 (holding 8th and 14th amendments require that sentencer not be precluded from considering as mitigating factor any aspect of defendant’s character or record and any of circumstances of offense, as long as it is relevant), cert. denied, 506 U.S. 819 (1992).