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People v. Mayfield1/2/1997
as not worthy of the jury's sympathy. The prosecutor did not suggest that any of the evidence was "more damning because it related to more than one factor." ( People v. Visciotti, (supra) , 2 Cal. 4th 1, 76, fn. omitted.)
F. Factor (d) Instruction
Defendant contends that the trial court erred in instructing the jury, in the language of section 190.3, factor (d), and CALJIC No. 8.84.1 (1986 rev.) that in determining penalty it could consider, among other things, " hether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance." (Italics added.) Defendant contends that the word "extreme" improperly restricted the jury's consideration of mitigating evidence contrary to requirements of Eighth and Fourteenth Amendments to the federal Constitution and article I, sections 7, 15, and 17 of the California Constitution.
As defendant acknowledges, we have frequently and consistently rejected the identical contention. (E.g., People v. Ashmus, (supra) , 54 Cal. 3d 932, 1001-1003.) We decline defendant's invitation to reconsider our resolution of this issue.
G. Instruction Regarding Inapplicable Penalty Factors
Defendant requests that we reconsider our decisions holding that it is not error for the trial court, when instructing the jury at the penalty phase of a capital case, to list all statutory penalty factors, including those as to which no evidence has been introduced, without designating whether each factor is potentially aggravating or mitigating. (E.g., People v. Raley, (supra) , 2 Cal. 4th 870, 919.) We decline to reconsider our resolution of this issue.
H. Reasonable Doubt Instruction
Defendant contends that the trial court erred when it refused his request to instruct the jury that it must find beyond a reasonable doubt each of the following: (1) one or more aggravating factors are present, (2) aggravating factors outweigh mitigating factors, and (3) death is the appropriate punishment for defendant in this case. The court did not err in declining to give the requested instructions. ( People v. Visciotti, (supra) , 2 Cal. 4th 1, 67-68.)
I. JURY UNANIMITY
Defendant contends that the trial court erred when it refused his request to instruct the jury that before it could return a verdict of death all 12 jurors had to agree on the same factors in aggravation. The trial court did not err; our death penalty law does not require this form of jury unanimity. ( People v. Price, (supra) , 1 Cal. 4th 324, 490.)
J. Lingering Doubt Instruction
The trial court refused to give defendant's proposed jury instructions on lingering doubt as a mitigating factor. But the trial court did give an expanded instruction on section 190.3, factor (k), advising the jurors that they could consider in mitigation " ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime and any sympathetic or other aspect of the defendant's character or record that the defendant offers as a basis for a sentence less than death, whether or not related to the offense for which he is on trial." In addition, the court instructed the jury that " itigating factors are unlimited" and that " nything mitigating should be considered; mitigating factors provided in these instructions are merely examples of some of the factors you may take into account in deciding not to impose a death sentence." Under these two instructions, the jurors would have understood that they could consider lingering doubt as a mitigating factor. Accordingly, the trial court did not err in refusing defendant's requested lingering doubt
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