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People v. Frye7/30/1998
d due process principles.
We have repeatedly held the trial court need not identify particular sentencing factors because their aggravating or mitigating nature is clear. (Carpenter, supra, 15 Cal.4th at p. 420; People v. Ray (1996) 13 Cal.4th 313, 359, and cases cited therein; Monteil, supra, 5 Cal.4th at pp. 944-945; see also Tuilaepa v. California (1994) 512 U.S. 967, 979 [capital sentencer need not be instructed how to weigh sentencing factors].) Contrary to defendant's contention that the prefatory language "whether or not" introducing the mitigating factors (d), (e), (f), (g), (h), and (j) in section 190.3 invited the jury to convert a mitigating factor into an aggravating circumstance, we find no reasonable likelihood the jury was misled in the manner defendant suggests. (Cf. Carpenter, supra, 15 Cal.4th at p. 420 [rejecting identical claim]; see also People v. Bolin (1998) 18 Cal.4th 297, 342.)
Defendant further asserts the trial court should have deleted from the jury's consideration any exclusively mitigating factors unsupported by the evidence. We have consistently rejected claims identical to this one. (People v. Ramos (1997) 15 Cal.4th 1133, 1183; Davenport, supra, 11 Cal.4th at p. 1230; Fauber, supra, 2 Cal.4th at p. 866.) Defendant provides no reason warranting reconsideration of these decisions.
1. Failure to instruct on lingering doubt
Among the penalty phase instructions requested by the defense but refused by the trial court was defendant's special instruction No. 6, informing the jury of the specific mitigating circumstances that it should take into account in making its penalty determination, including "any residual or lingering doubt as to whether [defendant] intentionally killed Lucille and Robbie Brandt." Defendant claims that the trial court's refusal to give his lingering doubt instruction as requested was a violation of state law and the Eighth and Fourteenth Amendments to the federal Constitution. Since under state law he is entitled to raise the subject of lingering doubt at the penalty phase, defendant contends the trial court should be prohibited from refusing a defense-requested instruction to the same effect.
Although it is proper for a defendant to assert his possible innocence as a factor in mitigation (Sanchez, supra, 12 Cal.4th at p. 77), there is no constitutional entitlement to an instruction on lingering doubt. (Berryman, supra, 6 Cal.4th 1048, 1104; People v. Johnson, supra, 3 Cal.4th at p. 1252.) Nor was such an instruction necessary in light of other instructions given at the penalty phase that sufficiently embraced the concept of lingering doubt. (CALJIC No.8.84.2 (1986 rev.); accord People v. Hines, supra, 15 Cal.4th at p. 1068 [lingering doubt instruction unnecessary in light of trial court's instruction in language of section 190.3, factor (a) regarding circumstances of the crime and section 190.3 factor (k) regarding circumstances extenuating the gravity of the crime and any sympathetic aspects of defendant's character and record offered in mitigation]; People v. Osband (1996) 13 Cal.4th 622, 716 [same]; Sanchez, supra, 12 Cal.4th at pp. 77-78 [same].)
1. Failure to instruct jury to assume penalty will be carried out
Also among the penalty phase instructions refused by the trial court were defendant's special instructions, Nos. 10 and 21, informing the jury that its sentencing choice, death or life in prison, will be carried out. Defendant contends the trial court's refusal to give these instructions violated his various rights under the United States Constitution. Arguing there is a "common perception" that jurors do not believe persons sentenced to death will be executed or per
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