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    Capital Punishment (Death Penalty) in California

    When can prosecutors seek the "Death Penalty" in California?

    On March 12, 2019 California Governor Gavin Newsom announced through executive order a moratorium on the imposition of capital punishment in California. As long as Newsom’s moratorium continues, no one will be put to death. And as of December 7, 2020, Los Angeles County prosecutors will no longer seek the death penalty.

    Capital punishment — the death penalty — is the most serious punishment society can impose on someone for committing a crime. Because the death penalty can’t be reversed, the normal civil rights protections and legal challenges that the criminal law provides to defendants are even more important when capital punishment is at stake.

    The death penalty under the California criminal justice system is controversial…and it’s easy to see why. The majority of countries in the world do not use the death penalty.1Juries and judges often get things wrong, even in cases where capital punishment is on the line. Since 1973, over 130 people in the United States who were sentenced to death have been able to prove that they were actually innocent.2 We’ll never know how many more innocent people were executed before they could prove their innocence.

    In spite of this, California continues to sentence people to the death penalty, usually for the crime of special circumstances murder.3 In March of 2019, there were 737 death row inmates in California. The last execution was 20064

    We are a law firm of former prosecutors and former cops with experience investigating, prosecuting and defending death penalty cases. In this article, our experienced California criminal defense attorneys explain capital punishment in California by addressing the following:5

    If you would like more information after reading this article, we invite you to contact us at Shouse Law Group.

    A deadly syringe laying on top of a book about capital punishment.

    1. Introduction to capital punishment in California

    1.1. History of the California death penalty

    Capital punishment has existed in California pretty much as long as California has been a state.6 At first, the California death penalty was carried out by hanging; but in 1937 the state switched to lethal gas as its method of execution.7 That same year, the state began performing all executions at San Quentin State Prison in Marin County.8

    The death penalty was almost abolished in California in the 1970s. The California Supreme Court declared that capital punishment was cruel and unusual punishment – and therefore violated the state constitution – in 1972.9 A year later, the United States Supreme Court said the same thing about the death penalty as it was being carried out in most U.S. states at that time.10

    For much of the 1970s, there was a tug-of-war over capital punishment in California between California voters, who wanted to bring the death penalty back, and the courts, which continued to find it unconstitutional.11 The United States Supreme Court finally held that capital punishment was permissible as long both of the following things are true:

    1. Juries do not have total discretion to decide who would receive the death penalty,12 AND
    2. The law doesn’t make the death penalty mandatory for any crimes (that is, juries have the freedom to decide NOT to execute someone based on the particular circumstances of their background and crime).13

    By 1978, the California legislature and voters had finalized a version of the current capital punishment law.14 This law gave juries clear guidance on when the death penalty was appropriate, and also gave juries the option of sentencing a defendant to life in California state prison without parole instead of death for any capital crime.15

    All of this controversy over the death penalty meant that the state of California did not execute anyone between 1967 and 1992.16 But, since then, thirteen (13) people have been executed in the state.17 And, since 1980, over eighty (80) other people who were sentenced to death have died on California’s death row…most of natural causes, although twenty-one (21) committed suicide.18 This means that, over the past thirty years, suicide has claimed more lives on death row in California than capital punishment itself has.

    In 1994, a federal court decided that execution by lethal gas was cruel and unusual punishment because of how likely it was that the executed person would feel pain.19 So, since then, all California executions have been carried out by a lethal injection protocol.20

    1.2. Current status of the death penalty in California

    The future of capital punishment in California is currently in doubt. In 2006, a federal court decided that the state’s current method of conducting executions by lethal injection also violated the U.S. Constitution’s ban on cruel and unusual punishment.21 According to the court, the staff members who gave the injections were not trained well enough, and the entire system lacked enough safeguards to ensure that condemned prisoners didn’t suffer pain.22

    So, for the past 6 years, the death penalty in California has been on hold while the state tries to fix the flaws in its system.23

    Also, in November of 2012, California voters will vote on an initiative to abolish the death penalty altogether.24 If this initiative passes, it will spell the end of capital punishment in California…and the maximum punishment for any crime will become life in prison without the possibility of parole.25

    But it’s far from certain that the initiative will pass. For now, there are still over 700 people stuck on death row in California. As of 2019, there is a moratorium on the imposition of capital punishment in California.

    In Los Angeles County, prosecutors will no longer be seeking the death penalty. And it will review all present and current cases where prosecutors announced they would be seeking the death penalty or where the defendant was already sentenced to death.26

    The execution chamber is still in San Quentin State Prison.

    An electric chair.

    2. Capital crimes in California

    The most common crime that can earn the death penalty in California is a particular variant of California murder law (Penal Code 187) known in California law as “special circumstances murder.” .27

    Special circumstances murder (also known as capital murder) is first-degree murder where one or more special circumstances are present. These include:

    • Prior murder convictions or more than one murder conviction,28
    • Murder by use of a bomb or poison,29
    • Murder of a law enforcement officer, firefighter, witness, judge, prosecutor, or jury member,30
    • Murder involving torture,31
    • Murder in connection with gang activity,32 and
    • Murder in connection with another serious felony.33

    There are several other, less common crimes that can be punished with the death penalty in California. These are:

    1. Treason (going to war against the state, or supporting others who do),34
    2. Committing perjury in order to cause the execution of someone who is innocent,35
    3. Sabotaging a train with the result that someone is killed,36
    4. Assaulting someone with a deadly weapon and killing them while serving a life sentence in state prison,37 and
    5. Intentionally interfering with preparations for the U.S. to go to war, with the result that someone is killed.38

    3. Death sentences in California: factors to consider

    If a jury decides that a defendant committed special circumstances murder, or one of the other capital crimes we listed above, that doesn’t mean that s/he will necessarily receive the death penalty.

    The punishment for these crimes is EITHER the death penalty OR life in prison without the possibility of parole.39 It is up to the jury to decide which one the defendant will receive.40 This will be decided by the jury after the defendant has been found guilty, in a separate “penalty phase” of the trial.41

    The jury is supposed to make this decision by weighing factors that work against the defendant (these are called “aggravating factors”) against factors that help the defendant’s case (these are called “mitigating factors”). If the aggravating factors outweigh the mitigating factors, the jury is supposed to sentence the defendant to death. If the mitigating factors outweigh the aggravating factors, the jury should choose life in prison without parole.42

    3.1. Aggravating factors

    California Penal Code 190.3 PC sets out a list of aggravating factors that the jury may consider in order to help determine if a defendant should get the death penalty.43 The prosecution can’t introduce aggravating factors other than the ones on this list.44

    The potential aggravating factors are:

    3.1.1. The nature and circumstances of the capital crime

    The jury may consider the “circumstances of the crime” for which the defendant may be sentenced to death.45 This is a pretty broad subject that can include a huge variety of considerations.

    It includes what is often called “victim impact evidence”-or evidence that illustrates the specific harm caused by the defendant (to the person s/he killed, or to the victim’s family members).46

    Example: Maurice has been found guilty of killing Annette, with special circumstances. At the penalty phase of his trial, the prosecution introduces photographs of Annette while she was alive. Annette’s family members also take the stand and testify about how much they loved and miss Annette. This is acceptable aggravating-factor evidence…it shows the impact, and therefore the circumstances, of the crime Maurice committed.47

    Another “circumstance of the crime” that is a common aggravating factor is behavior by the defendant, at the time s/he committed the crime, that seems to show that s/he did not feel remorse.48

    3.1.2. Other violent criminal activity

    The jury may also consider as an aggravating factor any other criminal activity the defendant has committed which involved violence or the threat of violence.49

    The jury can consider evidence of violent criminal activity even if the defendant was never actually convicted of it. However, the prosecution can’t introduce any evidence of violent criminal activity if the defendant was accused of that activity but later was found to be innocent.50

    Example: After Hank is convicted of special circumstances murder, the prosecutor argues that he should get the death penalty and calls to the stand Hank’s ex-wife, Bella. Bella testifies that Hank repeatedly assaulted her while they were married, even though Hank was never charged with any crime in connection with this. This is acceptable evidence of an aggravating factor that could weigh in favor of Hank getting the death penalty.

    BUT…

    Example: If Bella had pressed charges against Hank under California domestic violence laws when they were married, and Hank had been acquitted of those charges, the prosecutor would not be allowed to introduce Bella’s testimony about the assault.

    3.1.3. Prior felony convictions

    The jury is allowed to consider any earlier felony convictions of the defendant as an aggravating factor.51

    This can include convictions for any California felony charge…whether it involves violence or not.52 So, for an example, a prior conviction for a white collar crime or a drug crime could be an aggravating factor for purposes of capital punishment. The defendant does actually need to have been convicted of the crime, however.53

    There is one situation in which the prosecution in a capital punishment case MAY introduce other evidence against the defendant outside of this list of acceptable aggravating factors. The prosecutor can introduce other aggravating evidence IF s/he is responding to any evidence of mitigating factors that the defendant has introduced.54

    Example: In the penalty phase of Aaron’s capital murder trial, Aaron argues that he is a good citizen who does not deserve the death penalty and points to a number of jobs he has held. The prosecution then introduces evidence that Aaron has actually been unemployed for a long time.

    Normally, Aaron’s unemployment would not be an acceptable aggravating factor. But it’s okay for the prosecution to discuss it in this case, because Aaron opened the door to this topic by arguing that he had been gainfully employed.55

    3.2. Mitigating factors

    In a death penalty trial, the jury is supposed to balance the aggravating factors, which make the defendant’s crime seem worse, with mitigating factors, which make it seem not as bad. While the prosecution can only introduce aggravating factors of the sort that are listed in Penal Code 190.3 PC . . . the defendant can introduce evidence on almost any subject to show that s/he should not receive capital punishment.56

    Some of the most important mitigating factors are:

    • The defendant was relatively young when s/he committed the crime.57

    No one may be sentenced to death for a crime they committed before they were eighteen (18) or if health experts determine the person had an intellectual disability that begin during the early years of brain development.58 But even if the defendant was over 18, s/he may be able to argue that his or her youth helps excuse the crime.

    • The defendant was extremely mentally or emotionally disturbed when s/he committed the crime.
    • The defendant reasonably believed that s/he was justified in committing the crime.
    • The defendant was pressured by someone else into committing the crime.
    • The defendant was convicted only of aiding and abetting the crime and played a relatively minor role in it.59

    Here are some more specific examples of mitigating factors that a defendant can point to in arguing that s/he should not receive the death penalty:

    Example: Phillip suffers from post-traumatic stress disorder (PTSD) due to his service in the war in Vietnam. This is a mitigating factor the jury should consider in determining whether he should receive the death penalty for murder (even though it is not a basis for the insanity defense in California law that would lead to him being found innocent).60

    Example: At the penalty phase of his capital murder trial, Andrew introduces testimony from a psychologist. The psychologist testifies that Andrew has hyperactivity disorder and should have received the drug Ritalin as a child. This is a mitigating factor the jury should consider…since it is relevant to Andrew’s character and personal history and thus to whether capital punishment is the appropriate penalty.61

    Example: Fred learns that his neighbor Carl has molested his daughter. Fred kills Carl in circumstances that lead to him being convicted of capital murder. At the penalty phase of his trial, Fred offers his reason for killing Carl as a mitigating factor, since it helps to show that he may have been in a state of extreme mental disturbance and may have reasonably believed he was justified in killing Carl.

    There are only a few subjects that California courts do not allow defendants in capital punishment cases to use as mitigating factors. Some of these are:

    • Evidence about how the death penalty is carried out, what a life sentence without parole would be like, and whether the death penalty actually effectively deters crime.62
    • The idea that the jury should show “mercy” to the defendant faced with possible capital punishment.63
    • Potential stigma to the defendant’s family resulting from him/her receiving the death penalty.64

    According to Beverly Hills criminal defense attorney Neil Shouse:65

      “The reason these aren’t acceptable mitigating factors is that they aren’t relevant to either the circumstances of the crime, or the defendant’s character and background. In general, though, most other kinds of evidence that tends to show anything about the defendant’s character can be presented as a mitigating factor…and can help the defendant convince the jury to choose a sentence of life without parole instead of the death penalty.”

    A prisoner facing capital punishment.

    4. Challenging a death sentence in California

    Even if a defendant is sentenced to the death penalty in California, all is not lost. The law takes capital punishment very seriously and provides numerous ways for a defendant to challenge his/her sentence.

    4.1. Application to overturn the verdict

    Whenever a jury decides to impose capital punishment, the defendant is automatically treated as having filed an application to overturn the jury’s decision-also known in California law as a motion for a new trial. The defendant and his/her lawyer don’t need to actually file anything for this to occur.66

    In a death penalty case, an application for a new trial will lead to the judge in the case reviewing all the evidence. The judge will then consider the jury’s decision that the aggravating factors outweigh the mitigating factors (and thus that capital punishment was the appropriate sentence). If the judge feels that that decision is in conflict with the law or the evidence presented in the case, s/he can reduce the sentence to life without parole…or even order a new trial.67

    4.2. Automatic state appeal

    All death penalty sentences in California are also automatically appealed to the California Supreme Court.68 This means that the appeal of the California criminal conviction will happen even if the defendant and his/her lawyer take no action.69 The same lawyer who represented the defendant in the original capital punishment trial will represent him/her in the appeals process.

    So that defendants sentenced to capital punishment will not wait around on death row for too long, attorneys and courts are required to move relatively quickly on death penalty appeals. The defendant’s attorney has to file a brief with the California Supreme Court within seven (7) months after the record from the trial is finalized.70 The court then needs to decide on the appeal within another seven (7) months after it receives all briefs.71

    If the California Supreme Court decides against the defendant, s/he can then appeal to the United States Supreme Court…which is actually called a “petition for certiorari.” This is not an automatic appeal, and the United States Supreme Court is not required to actually accept the appeal. Instead, it will review the petition for certiorari and, if it decides the defendant’s case may have merit, it will then hear the appeal.72

    4.3. Habeas corpus petitions

    There is still another path a defendant can take to avoid capital punishment in California: the habeas corpus petition (also known as a “petition for writ of habeas corpus”).73

    A habeas corpus petition is a way of challenging your sentence by arguing that something went very wrong with your trial. Issues that can be raised in a habeas corpus petition include arguments that:

    • the law under which you were convicted is unconstitutional,74
    • your lawyer at trial was incompetent,75
    • the prosecutor committed prosecutorial misconduct at your trial,76 and
    • new evidence has been discovered that would completely undermine the case against you.77

    In capital cases, the defendant is supposed to file a petition for writ of habeas corpus with the California Supreme Court while his/her appeal to the California Supreme Court is ongoing.78 The California Supreme Court may choose to hold a hearing on the petition, or they may choose not to. In any event, the California Supreme Court has to rule on the petition within ninety (90) days after the hearing or after all briefing is finished.79

    If the California Supreme Court denies the petition for writ of habeas corpus, this too can be appealed to the United States Supreme Court…though this rarely gets results.80

    After the California Supreme Court denies the habeas corpus petition of a prisoner sentenced to death, s/he can file another petition for writ of habeas corpus in the federal courts.81 This petition will begin in the United States District Court in the region where the prisoner is held, and then will move up to the United States Court of Appeals for the Ninth Circuit.82

    The law makes it difficult for a habeas petition in federal court to succeed.83 But that doesn’t mean all federal petitions fail.

    And, just as importantly, as long as the defendant’s appeals and petitions for writ of habeas corpus are going on, s/he cannot be executed. A defendant and his/her lawyer should do everything they can to try all possible avenues to challenge the sentence. Because the law provides many such avenues in death penalty cases, the defendant can buy a great deal of time this way…which can be enormously valuable to someone who has been sentenced to death.

    4.4. Executive clemency

    The last resort for prisoners sentenced to death in California is something called “executive clemency.” This means that these prisoners have a right to apply to the Governor of the state, who has the power to stop a death sentence from being carried out.84

    As part of the clemency process, the prosecutor in the county where the prisoner was convicted and sentenced to death will argue for upholding the sentence; and the prisoner can present his/her case with the help of a lawyer.85

    This option is always worth trying but doesn’t often get good results. The last time a California governor granted a prisoner relief from capital punishment was in 1967, when Ronald Reagan was governor. But there may be a temporary reprieve while the governor considers the case.86

    Call us for help…

    If you or a loved one is in need of help and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in the office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

    For information regarding Colorado law, please visit our page on capital punishment in Colorado.

    For information regarding Nevada law, please visit our page on capital punishment in Nevada.

    Legal References:

    1.  See Death Penalty Information Center, Abolitionist and Retentionist Countries, updated Mar. 27, 2012. California Gov. Gavin Newsom suspended capital punishment in 2019. (President Trump supports capital punishment, while Vice President Biden and Senator Kamala Harris oppose it.)
    2.  Death Penalty Information Center, Facts about the Death Penalty, updated Aug. 15, 2012, at 2.
    3. Penal Code 190.2 PC – [Capital Punishment] or life imprisonment without parole; special circumstances [Special circumstances murder]. (“(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: . . .”)
    4. California Department of Corrections and Rehabilitation, Death Row Tracking System, Condemned Inmate List. Paige St. John and Maloy Moore, These are the 737 Inmates on California’s Death Row, Los Angeles Times (March 13, 2019).
    5.  Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, Sacramento, and several nearby cities.
    6.  California Department of Corrections and Rehabilitation, History of Capital Punishment in California.
    7.  Death Penalty Focus, The History of California’s Death Penalty.
    8.  Same.
    9.  Same.
    10.  See Furman v. Georgia, (1972) 408 U.S. 238.
    11.  California Department of Corrections and Rehabilitation, History of Capital Punishment in California.
    12.  See Furman v. Georgia, (1972) 408 U.S. 238.
    13.  See Gregg v. Georgia, (1976) 428 U.S. 153.
    14.  Death Penalty Focus, The History of California’s Death Penalty
    15.  Same.
    16. See Penal Code 190.3 PC – Determination of [capital punishment] or life imprisonment; evidence of aggravating and mitigating circumstances; considerations.
    17.  Death Penalty Focus, The History of California’s Death Penalty.
    18.  California Department of Corrections and Rehabilitation, Condemned Inmates Who Have Died Since 1978, Aug. 27, 2012.
    19.  Same.
    20.  Fierro v. Gomez, (N.D. Cal. 1994) 865 F. Supp. 1387, 1415. (“In a case such as this one, the primary objective evidence to be considered must be the evidence of the pain experienced by the condemned inmate; evidence of legislative trends vis a vis the challenged method is also relevant. The evidence presented concerning California’s method of execution by administration of lethal gas strongly suggests that the pain experienced by those executed is unconstitutionally cruel and unusual. This evidence, when coupled with the overwhelming evidence of societal rejection of this method of execution, is sufficient to render California’s method of execution by lethal gas unconstitutional under the eighth amendment.”)
    21.  Penal Code 3604 PC – Method of execution; election. (“(a) The punishment of death [capital punishment] shall be inflicted by the administration of a lethal gas or by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death, by standards established under the direction of the Department of Corrections. (b) Persons sentenced to death prior to or after the operative date of this subdivision shall have the opportunity to elect to have the punishment imposed by lethal gas or lethal injection. . . . (d) Notwithstanding subdivision (b), if either manner of execution described in subdivision (a) is held invalid, the punishment of death shall be imposed by the alternative means specified in subdivision (a).”)
    22.  U.S. Const., amend. VIII. (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”)
    23.  Judge says California’s lethal-injection method is flawed, San Francisco Chronicle, Dec. 15, 2006.
    24.  Death Penalty Information Center, Death Penalty in Flux, updated July 27, 2012.
    25.  Ballotpedia, California Proposition 34, the End the Death Penalty Initiative (2012).
    26. Penal Code 190.2 PC – Special circumstances murder. (“(a) The penalty for a defendant who is found guilty of murder in the first degree is [capital punishment] or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: . . .”)
    27. California Department of Corrections and Rehabilitation, Condemned Inmate List, Aug. 3, 2012; LADA Directive 20-11.
    28. Penal Code 190.2 PC –  Special circumstances murder. (“(a) The penalty for a defendant who is found guilty of murder in the first degree is [capital punishment] or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: . . .”)
    29.  Penal Code 190.2(a)(2), (3) PC.
    30.  Penal Code 190.2(a)(4), (6), (19) PC.
    31.  Penal Code 190.2(a)(7)-(13), (20) PC.
    32.  Penal Code 190.2(a)(18) PC.
    33.  Penal Code 190.2(a)(22) PC.
    34.  Penal Code 190.2(a)(17) PC.
    35. Penal Code 37 PC – Treason; definition; evidence necessary to support conviction; punishment. (“(a) Treason against this state consists only in levying war against it, adhering to its enemies, or giving them aid and comfort, and can be committed only by persons owing allegiance to the state. The punishment of treason shall be [capital punishment] or life imprisonment without possibility of parole. The penalty shall be determined pursuant to Sections 190.3 and 190.4.”)
    36. Penal Code 128 PC – Procuring execution of innocent person; punishment. (“Every person who, by willful perjury or subornation of perjury procures the conviction and execution of any innocent person, is punishable by [capital punishment] or life imprisonment without possibility of parole. The penalty shall be determined pursuant to Sections 190.3 and 190.4.”)
    37. Penal Code 219 PC – Train derailing or wrecking; punishment. (“Every person who unlawfully throws out a switch, removes a rail, or places any obstruction on any railroad with the intention of derailing any passenger, freight or other train, car or engine and thus derails the same, or who unlawfully places any dynamite or other explosive material or any other obstruction upon or near the track of any railroad with the intention of blowing up or derailing any such train, car or engine and thus blows up or derails the same, or who unlawfully sets fire to any railroad bridge or trestle over which any such train, car or engine must pass with the intention of wrecking such train, car or engine, and thus wrecks the same, is guilty of a felony and punishable with [capital punishment] or imprisonment in the state prison for life without possibility of parole in cases where any person suffers death as a proximate result thereof, or imprisonment in the state prison for life with the possibility of parole, in cases where no person suffers death as a proximate result thereof. The penalty shall be determined pursuant to Sections 190.3 and 190.4.”)
    38. Penal Code 4500 PC – Person undergoing life sentence; commission of assault with means of force likely to produce great bodily injury; punishment. (“Every person while undergoing a life sentence, who is sentenced to state prison within this state, and who, with malice aforethought, commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury is punishable with [capital punishment] or life imprisonment without possibility of parole. The penalty shall be determined pursuant to the provisions of Sections 190.3 and 190.4; however, in cases in which the person subjected to such assault does not die within a year and a day after such assault as a proximate result thereof, the punishment shall be imprisonment in the state prison for life without the possibility of parole for nine years.”)
    39.  Military & Veterans Code 1670, 1671, 1672 MVC.
    40. Penal Code 190.2 PC – Special circumstances murder. (“(a) The penalty for a defendant who is found guilty of murder in the first degree is [capital punishment] or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: . . .”)
    41. Penal Code 190.3 PC – Determination of [capital punishment] or life imprisonment; evidence of aggravating and mitigating circumstances; considerations. (“If the defendant has been found guilty of murder in the first degree, and a special circumstance has been charged and found to be true, or if the defendant may be subject to [capital punishment] after having been found guilty of violating subdivision (a) of Section 1672 of the Military and Veterans Code or Sections 37, 128, 219, or 4500 of this code, the trier of fact shall determine whether the penalty shall be death or confinement in state prison for a term of life without the possibility of parole.”)
    42.  Penal Code 190.4 PC – Special findings on the truth of each alleged special circumstance; penalty hearing; application for modifications. (“(a) . . . If the trier of fact finds that any one or more of the special circumstances enumerated in Section 190.2 as charged is true, there shall be a separate penalty hearing, and neither the finding that any of the remaining special circumstances charged is not true, nor if the trier of fact is a jury, the inability of the jury to agree on the issue of the truth or untruth of any of the remaining special circumstances charged, shall prevent the holding of a separate penalty hearing.”)
    43. Penal Code 190.3 PC – Determination of [capital punishment] or life imprisonment; evidence of aggravating and mitigating circumstances; considerations. (“In the proceedings on the question of penalty, evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence including, but not limited to, the nature and circumstances of the present offense, any prior felony conviction or convictions whether or not such conviction or convictions involved a crime of violence, the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the express or implied threat to use force or violence, and the defendant’s character, background, history, mental condition and physical condition. . . . After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances the trier of fact shall impose a sentence of confinement in state prison for a term of life without the possibility of parole.”)
    44.  Same.
    45.  People v. Boyd, (1985) 38 Cal.3d 762, 774. (“Evidence of defendant’s background, character, or conduct which is not probative of any specific listed factor would have no tendency to prove or disprove a fact of consequence to the determination of the action, and is therefore irrelevant to aggravation [in capital punishment cases].”)
    46.  California Penal Code 190.3 PC – Determination of [capital punishment] or life imprisonment; evidence of aggravating and mitigating circumstances; considerations. (“In determining the penalty, the trier of fact shall take into account any of the following factors if relevant: (a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1.”)
    47.  See People v. Edwards, (1991) 54 Cal.3d 787, 833. (“Defendant now contends that even aside from Eighth Amendment considerations, victim impact evidence is inadmissible in California because it does not come within any of the aggravating factors listed in section 190.3. One of the statutory aggravating factors is the circumstances of the crime of which the defendant was convicted in the present proceeding . . . The issue is thus whether evidence of the specific harm caused by the defendant is a circumstance of the crime admissible under factor (a). We think it generally is.”) (citations and internal quotation marks omitted)
    48.  Based on People v. Boyette, (2002) 29 Cal.4th 381, 444-45.
    49.  People v Bonilla, (2007) 41 Cal.4th 313, 356.
    50. Penal Code 190.3 PC – Determination of [capital punishment] or life imprisonment; evidence of aggravating and mitigating circumstances; considerations. (“In determining the penalty, the trier of fact shall take into account any of the following factors if relevant: . . . (b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.”)
    51.  Same. (“As used in this section, criminal activity does not require a conviction. However, in no event shall evidence of prior criminal activity be admitted for an offense for which the defendant was prosecuted and acquitted.”)
    52.  Same. (“In determining the penalty, the trier of fact shall take into account any of the following factors if relevant . . . (c) The presence or absence of any prior felony conviction.”)
    53.  Same.
    54.  Same.
    55.  People v. Anderson, (1990) 52 Cal.3d 453, 475. (“According to defendant, the prosecutor’s penalty phase evidence included such irrelevant matters as (1) defendant’s long-standing lack of gainful employment . . . . Our examination of the record indicates none of these claims has merit. With respect to defendant’s employment record, he opened the door by introducing, in mitigation of penalty, evidence of his various jobs and participation in a work furlough program. In response, the prosecutor was entitled to explore whether defendant had been able to hold steady employment.”)
    56.  Based on the same.
    57. Penal Code 190.3 PC – Determination of [capital punishment] or life imprisonment; evidence of aggravating and mitigating circumstances; considerations. (“In determining the penalty, the trier of fact shall take into account any of the following factors if relevant: . . . (k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.”)
    58.  Same. (“In determining the penalty, the trier of fact shall take into account any of the following factors if relevant: . . . (i) The age of the defendant at the time of the crime.”)
    59. Penal Code 190.5 – Penalty for persons under 18; imposition of [capital punishment] prohibited. (“(a) Notwithstanding any other provision of law, [capital punishment] shall not be imposed upon any person who is under the age of 18 at the time of the commission of the crime. The burden of proof as to the age of such person shall be upon the defendant.”); California Assembly Bill 2512 (2020).
    60. Penal Code 190.3 PC – Determination of [capital punishment] or life imprisonment; evidence of aggravating and mitigating circumstances; considerations. (“In determining the penalty, the trier of fact shall take into account any of the following factors if relevant: . . . (d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance. . . . (f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct. (g) Whether or not defendant acted under extreme duress or under the substantial domination of another person. (h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, or the effects of intoxication. . . . (j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.”)
    61.  Based on People v. Lucero, (1988) 44 Cal.3d 1006, 1030.
    62. Based on People v. Brown, (2003) 31 Cal.4th 518, 578. (“The trial court seemed to labor under the misconception that, to be relevant, the witness’s testimony would have to demonstrate a correlation between hyperactivity as a child and violent conduct later in life. Section 190.3, factor (k) evidence need not be that specific; it was sufficient that the sympathetic evidence of defendant’s asserted untreated hyperactivity, which was relevant to his character, tended to extenuate the gravity of the crime. To find this evidence irrelevant would be to call into question much background and family history evidence commonly introduced in capital trials as mitigating evidence.”)
    63. People v. Thompson, (1988) 45 Cal.3d 86, 139. (“Evidence of how [capital punishment] is carried out or what conditions in prison might be for a person serving a sentence of life without possibility of parole was not, as defense counsel candidly admitted, offered as ‘mitigating’ evidence. It went neither to defendant and his background nor to the nature and circumstances of his crime. We have held that evidence as to how [capital punishment] is carried out should not be admitted. Describing future conditions of confinement for a person serving life without possibility of parole involves speculation as to what future officials in another branch of government will or will not do. . . . As for evidence of the deterrent value or lack thereof of [capital punishment], statistics on that point seem inconclusive. It remains a proper matter for consideration by the legislative authority, not the jury imposing sentence in a particular case.”) (citations omitted)
    64.  People v. Benson, (1990) 52 Cal.3d 754, 808. (“”Defendant requested the court to instruct the jury that ‘In this part of the trial you may consider pity, sympathy, or mercy for the defendant in deciding on the appropriate penalty for him.’ The court refused. Defendant contends that the court erred. He claims that the requested instruction was legally correct: the law, he says, grants the jury authority to choose life over death simply because the former is desirable and the latter is not. We disagree. Neither statute nor Constitution gives the jury the right to exercise what is essentially godlike power.”)
    65.  People v. Sanders, (1995) 11 Cal.4th 475, 545. (“The trial court also did not err in excluding testimony about possible stigma to the family of a defendant sentenced to death. Such testimony would not exemplify feelings toward the defendant and neither ‘bears on his overall character and humanity’ nor serves to humanize him for the jury.”)
    66.  Beverly Hills criminal defense attorney Neil Shouse is the Managing Attorney of Shouse Law Group. He is a former Los Angeles County Deputy District Attorney, where he worked on cases ranging from DUIs and drug charges co complex, high profile murders . . . and had an astounding 96% success rate in felony jury trials. Mr. Shouse frequently appears as a guest legal commentator on national television.
    67. Penal Code 190.4(e) PC – Special findings on truth of each alleged special circumstance; [death] penalty hearing; application for modification. (“(e) In every case in which the trier of fact has returned a verdict or finding imposing the [capital punishment], the defendant shall be deemed to have made an application for modification of such verdict or finding pursuant to Subdivision 7 of Section 11. In ruling on the application, the judge shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in Section 190.3, and shall make a determination as to whether the jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented. The judge shall state on the record the reasons for his findings. The judge shall set forth the reasons for his ruling on the application and direct that they be entered on the Clerk’s minutes. The denial of the modification of [capital punishment] verdict pursuant to subdivision (7) of Section 1181 shall be reviewed on the defendant’s automatic appeal pursuant to subdivision (b) of Section 1239. The granting of the application shall be reviewed on the People’s appeal pursuant to paragraph (6).”)
    68. See also Penal Code 1181 PC – Grounds; modification of verdict, finding or judgment to conform to evidence. (“When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: . . . 7. When the verdict or finding is contrary to law or evidence, but in any case wherein authority is vested by statute in the trial court or jury to recommend or determine as a part of its verdict or finding the punishment to be imposed, the court may modify such verdict or finding by imposing the lesser punishment without granting or ordering a new trial, and this power shall extend to any court to which the case may be appealed; . . . .”)
    69.  Same.
    70. Penal Code 1239 PC – Manner of taking appeal; automatic appeal from [capital punishment]; continuation of representation by counsel. (“(b) When upon any plea a judgment of death is rendered, an appeal is automatically taken by the defendant without any action by him or her or his or her counsel. The defendant’s trial counsel, whether retained by the defendant or court appointed, shall continue to represent the defendant until completing the additional duties set forth in paragraph (1) of subdivision (e) of Section 1240.1.”)
    71.  Same.
    72.  Penal Code 190.6 PC – Expeditious imposition of sentences in capital [punishment] cases; legislative findings. (“(a) The Legislature finds that the sentence in all capital cases should be imposed expeditiously. (b) Therefore, in all cases in which a sentence of death has been imposed on or after January 1, 1997, the opening appellate brief in the appeal to the State Supreme Court shall be filed no later than seven months after the certification of the record for completeness under subdivision (d) of Section 190.8 or receipt by the appellant’s counsel of the completed record, whichever is later, except for good cause. However, in those cases where the trial transcript exceeds 10,000 pages, the briefing shall be completed within the time limits and pursuant to the procedures set by the rules of court adopted by the Judicial Council.”)
    73.  Same. (“(c) In all cases in which a sentence of death has been imposed on or after January 1, 1997, it is the Legislature’s goal that the appeal be decided and an opinion reaching the merits be filed within 210 days of the completion of the briefing. However, where the appeal and a petition for writ of habeas corpus is heard at the same time, the petition should be decided and an opinion reaching the merits should be filed within 210 days of the completion of the briefing for the petition.”)
    74.  See California Attorney General’s Office, Office of Victims’ Services, A Victim’s Guide to the Capital Case Process, at 3-4.
    75.  Same, at 6-9. See also Penal Code 1473 PC – Persons authorized to prosecute writ; false evidence. (“(a) Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint.”)
    76.  In re Davis, (1966) 242 Cal.App.2d 645, 649-50.
    77.  People v. Jackson, (1973) 10 Cal.3d 265, 268.
    78.  People v. Kasim, (1997) 56 Cal.App.4th 1360, 1387.
    79.  In re Weber, (1974) 11 Cal.3d 703.
    80.  See California Attorney General’s Office, Office of Victims’ Services, A Victim’s Guide to the Capital Case Process, at 6-7.
    81.  Same.
    82.  Same.
    83.  Same, at 8-9.
    84.  Same.
    85.  See 28 United States Code (“U.S.C.”) § 2254.
    86.  See California Attorney General’s Office, Office of Victims’ Services, A Victim’s Guide to the Capital Case Process, at 15-16.
    87.  Same.
    88.  California Commission on the Fair Administration of Justice, Clemency in Capital Cases, at 8.

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