Motion for Modification of Death Penalty
Category > Motion for Modification of Death Penalty
The trial court improperly granted the Faretta request at the motion to modify the death verdict by failing to explain the dangers of self-representation. Defendant asked to represent himself for the limited purpose of the trial court’s reconsideration of his application to modify the death verdict under Penal Code section 190.4, subd.(e). However, the trial court erred in granting the motion without obtaining a knowing and intelligent waiver of the right to counsel. While the court explained certain benefits of self-representation, it did not properly explain the risks. The death judgment was again reversed and the matter remanded for another hearing on the motion to modify the verdict. id: 20960
Death sentence was vacated to allow judge to rehear the modification motion and state reasons as required.The trial court erred in failing to state reasons for denying defendant's application for modification of the death penalty. Since the judge who tried the case was alive and available, the case was remanded to allow the judge to rehear the motion and state the reasons as required.id: 14678
No statements from victim's should be taken during the motion to modify the verdict.The trial court permitted the victim's grandmother to make a statement during the motion to modify the verdict. Prior to announcing its ruling, the court stated that its determination was based only on the evidence considered by the jury. The error in allowing the grandmother to speak did not require reversal but in the future any such statements should be made, if at all, after the court rules on the modification motion.id: 14685
Court erred in reading the probation report before ruling on the application for modification of verdict.Although the court was required to read the probation report before sentencing defendant on the robbery conviction, it should not have read and considered the probation report in ruling on the application for modification of the verdict. The case was remanded for a new hearing on the application for modification of verdict.id: 14668
Court erroneously considered the absence of mitigating factors to amount to aggravation.During the motion to modify the death verdict the court erroneously considered the absence of certain potentially mitigating facts to amount to aggravation. However, the error was not prejudicial as there was no reasonable possibility it affected the ruling.id: 14670
Consideration of improper factors at the motion to modify the verdict required remand.The trial court considered improper factors in granting the defendants' motion to modify the death verdict pursuant to Penal Code section 190.4, subdivision (e). The improper factors were: (1) the possibility the jury could not, as it was instructed, ignore the successfully objected to evidence at trial, (2) a most likely reversal by the Supreme Court, and the length and expense of a retrial of the penalty phase. The matter was remanded to the trial court to conduct a new hearing under section 190.4, subdivision (e).id: 14659
In stating reasons at the motion to modify the death verdict the court erroneously referred to the absence of a mitigating factor as an aggravating factor.In stating its reasons for upholding the death verdict at the motion for modification, the court stated three aggravating factors. the third factor was the fact that defendant had the capacity to appreciate the criminality of his conduct and was not impaired by intoxication. This factor was improper as the judge treated the absence of a mitigating factor as an aggravating factor. The error was harmless given the two substantially aggravating factors and the little evidence that was introduced in mitigation.id: 14680
Court erred in allowing statements from the victims' families at the motion to modify the verdict.At the hearing on the motion for modification of the death verdict the court erred in allowing relatives of the victims to make statements with respect to sentencing. The error was harmless where the court provided an extensive statement of proper reasons in support of its ruling.id: 14666
Court's error in failing to state reasons in denying modification motion was not prejudicial given the evidence and inability to remand the matter due to the death of the trial judge.In ruling on the motion for modification of the death verdict the trial judge failed to state on the record the reasons for his findings. Ordinarily the matter would be remanded for a new hearing on the modification application, but the trial judge was deceased. However, the failure to specifically state the reasons for denial of the modification application was not prejudicial where the evidence in aggravation far outweighed the evidence in mitigation and the statement of reasons would not have altered the trial judge's conclusion.id: 14676
Court misstated the applicable standard in ruling on a modification of verdict motion but properly conducted an independent review of the evidence.In ruling on defendant's motion to modify the death verdict pursuant to Penal Code section 190.4, subd. (e), the court made comments that it could not overrule the juror's verdict absent a clear showing that their evaluation was wrong. In making these comments the court misstated the applicable legal standard in ruling on the motion. However, although the court misstated the standard it applied the proper concept. The court's subsequent comments demonstrated the court carefully reviewed the record and independently determined the penalty verdict was not contrary to the law or the evidence presented.id: 14671
Court erred in relying on the probation report in considering the motion to modify the death verdict.In considering the motion to modify the death verdict the trial court erroneously read a probation report that contained prejudicial information about the defendant's prior history of violent crime as a juvenile. The record also revealed that the court referred to the information in stating its reasons for denial of the motion. However, the error was not prejudicial as there was little chance the court would have ruled differently absent consideration of the probation report since defendant had a record of serious violent crimes as an adult that the court properly considered.id: 14669
Trial court erred in deferring to the jury's implied findings in ruling on the motion to modify the death verdict.The jury at the penalty phase retrial returned a verdict of death, but the trial court granted the motion to modify the verdict to life without possibility of parole. The Court of Appeal reversed on the ground that improper factors dominated the trial court's reviewing process. The trial court judge retired and the case was assigned to Judge Heumann, who denied the request to modify the death verdict. The substitution was not improper, nor did the earlier modification prevent further proceedings on double jeopardy grounds. Next, Judge Heumann correctly found the earlier ruling was flawed because it was not based on a review of the evidence. However, Judge Heumann's ruling was itself flawed because he did not independently reweigh the evidence. Instead, he repeatedly deferred to the jury's implied findings. The matter was again remanded for a new hearing on the motion to modify the death verdict.id: 17170
The trial court did not err by allowing the defendant who did not seek to change the death verdict to represent himself at the hearing on the motion to modify the verdict.The trial court did not err by allowing the defendant to represent himself at the Penal Code section 190.4, subd.(e) hearing, which allows the court to modify the jury’s death verdict even though defendant expressed a desire to leave the death verdict intact. The trial court adequately explained the dangers of self-representation and took efforts to make sure defendant’s decision was considered and not impulsive.id: 24853
Defendant’s failure to object to the lack of reasons for the denial of the motion to modify the death verdict forfeited the issue.Defendant argued the trial court erred in denying his automatic application for modification of the death verdict by failing to state any reasons for denying the motion. However, defendant forfeited the issue because of his failure to object in the trial court.id: 20503
Request of the prosecutor to prepare a commitment order for a death judgment prior to the section 190 .4(e) hearing did not show the court prejudged the case.Defendant argued the trial court prejudged his motion to modify the death verdict by directing the prosecution to prepare a commitment order for a judgment of death prior to the hearing on the motion. However, the court's apparent goal was to be able to proceed with sentencing if it decided death was appropriate. The request of the prosecutor did not show it prejudged the matter.id: 18909
Defense counsel's failure to argue at the motion to modify the death verdict did not result in a total breakdown of the process.Defendant argued that defense counsel's failure to file a document and argue at the automatic application to modify the death verdict led to a total breakdown of the adversarial process. There was no breakdown in the process where defense counsel actively participated in the penalty trial.id: 18701
Following a penalty trial before the court, defense counsel waived any error regarding the failure to rule on a motion to modify the death verdict by agreeing the court could refer to its earlier detailed ruling.Defendant waived a penalty phase jury trial. The court rendered a death verdict and gave a detailed statement of reasons. Later, the question arose as to whether the trial court should entertain a motion to modify the verdict. Defense counsel waived any error regarding the failure to rule on the modification motion by suggesting the court could refer to its earlier ruling, and responding "Okay" when the court stated its belief that it did not have to restate the reasons.id: 18277
The trial court did not err in denying live evidence following a remand to conduct a new hearing on the motion to modify the death verdict.Following a death verdict, the matter was remanded to the trial court for a new Penal Code section 190.4, subd.(e) modification of penalty since the trial court erroneously considered a probation report at the first hearing. The second hearing was held before a different judge. The new judge reviewed the transcripts of the guilt and penalty phases. Contrary to defendant's claim, he was not entitled to present live testimony at the new hearing. The inability of the new judge to view live witnesses in determining credibility was not fatal. Moreover, the court did not err in denying the request for an evidentiary hearing for a motion to strike the special circumstance finding since that request exceeded the scope of the remand order.
id: 17957
The trial court did not prejudge the modification of death verdict motion despite its statement to the jurors that they reached the right decision.Defendant argued the trial judge should have recused himself from the automatic motion to modify the death verdict because of his bias when he told the jurors, prior to dismissing them, that they had reached the correct result. However, the judge later explained to the parties at the modification motion that he had considered the matter in careful detail. While the judge did not provide detailed reasons which would have helped the present analysis, the record showed the judge did not prejudge the modification issue.id: 16851
The preparation by the prosecutor of the court's written statement denying the modification of death verdict motion did not show the court failed to exercise independent judgment.Defendant argued that because the prosecutor prepared the court's written statement, the court failed to exercise its independent judgment in denying the motion to modify the death verdict. However, the prevailing parties frequently, and quite properly, assist the court in drafting tentative orders or similar statements.id: 16317
There was no evidence to support the claim that the trial court considered the codefendant's probation report in denying defendant's motion to modify the death sentence.Because the codefendant was sentenced before capital defendant's motion for modification of sentence hearing, and the same judge presided in both cases, defendant argued the court must have considered evidence from the probation officer's report prepared for codefendant's sentencing in denying defendant's motion to modify. However, there was no evidence suggesting the court considered the other probation report in denying the modification motion.id: 16318
Court's improper reference to the reasonable person standard did not establish a lack of understanding in ruling on the motion to modify the death verdict.Defendant argued the trial court erred in failing to properly apply the law in ruling on the motion to modify the death verdict. In considering whether defendant acted under extreme mental or emotional disturbance (Penal Code section 190.3, factor (d)) the court erroneously referred to the reasonable person standard. Even though the court referred to the wrong standard, its statement made clear the court did not believe and thought the jury did not believe that extreme mental or emotional disturbance actually caused defendant to lose control. Moreover, the court also considered evidence of brain damage when discussing section 190.3, factor (h). It simply was not convinced that if there was brain damage, it was the cause of defendant's actions.id: 14677
Failure to state proper reasons at modification of penalty motion did not require reversal where the trial judge was now deceased.During the Penal Code section 190.4, subdivision (e), motion for modification of the penalty verdict the court indicated the death penalty was supported by the evidence and mentioned defendant's criminal activity in the county. Such factor was improper since evidence of defendant's prior criminal conduct had not been introduced at the penalty phase. Moreover, the fact that the court had not stated proper reasons under section 190.4 and was now deceased, did not require reversal given the aggravating factors that were present.id: 14679
It cannot be presumed that failure to mention certain evidence at modification hearing meant the judge did not consider such evidence.When the trial judge states reasons for refusing to modify the penalty verdict, it cannot be presumed from his failure to mention particular evidence that he did not consider it.id: 14682
Judge did not fail to consider mitigating evidence at the motion to modify the death verdict where he stated he considered the evidence in the trial.Defendant argued the court erred in denying his motion to modify the death verdict because the court made no mention of any of the evidence of mitigation presented by the defendant at the penalty phase. However, the judge specifically stated that he had considered the evidence in the trial. This included the evidence defendant introduced at the penalty phase. That the judge did not refer to the evidence more specifically did not mean the evidence was not considered.id: 14684
Record did not show the court relied on the probation report at the modification motion where defendant was sentenced in the non-capital crimes immediately after the motion.Defendant argued that because the trial court proceeded to sentence defendant on the non-capital crimes in reliance on the probation report immediately after denying the application for modification of the death sentence, without taking a recess, the court must have read the probation report before ruling on the motion. However, the record did not suggest that the court relied on any information contained in the probation report in denying the motion.id: 14686
Record showed the court did not consider citizens petitions in denying the motion to modify the death verdict.During the motion for modification of the penalty verdict the prosecutor referred to a number of citizen petitions urging imposition of the death penalty. The court stated that it would not refer to the petitions and the prosecutors asked if the court would ignore them. The court responded I didn't say ignore it . . . Defendant argued that based upon this statement the court erroneously considered the petitions. However, a reading of the court's entire discussion revealed that although the court objected to the prosecutor's use of the word ignore in describing the court's actions, it properly refused to consider the petitions in denying the motion for modification.id: 14687
Remand order to redetermine defendant's application for modification of the death verdict did not deprive defendant of presenting additional mitigating evidence.In <i>People v. Sheldon</i>, (1989) 48 Cal.3d 935, the California Supreme Court vacated the original judgment imposing a sentence of death for redetermination of the automatic verdict modification application which the trial court had erroneously denied. Defendant argued the remand order was improper in that it prevented defense counsel from offering further mitigating evidence or argument and that it necessarily required the trial court to accept the Supreme Court's legal conclusion on the harmlessness of certain trial errors. However, defendant cited no instances in which items of mitigating evidence or argument were excluded at the modification hearing. Moreover, the language directing the court to redetermine the motion in accordance with our opinion was intended merely to refer the trial judge to the opinion for explanation regarding the reasons for the remand.id: 14688
Ruling on the automatic application to modify the verdict by a judge who did not hear the entire guilt phase trial was not improper.Defendant's application for modification of the jury's death verdict was considered by Judge Saiers who, after replacing the seriously ill Judge Ferguson, reviewed the transcripts of the trial proceedings before his substitution and presided over the remainder of the guilt phase and the entire penalty phase. Judge Saiers was capable of fully exercising his independent judgement for the purpose of ruling on defendant's application for modification of the jury's verdict of death.id: 14689
Standard for automatic motion to modify the death verdict.In ruling on the automatic motion to modify a death verdict, the trial judge's function is not to make an independent de novo penalty determination, but rather to independently reweigh the evidence of aggravating and mitigating circumstances and then to determine whether, in the judge's independent judgment, the weight of the evidence supports the verdict.id: 14690
Superior Court lacked authority to grant habeas relief and order a new modification of verdict hearing where the issue was pending on appeal before the Supreme Court.Defendant was convicted of two first degree murders and was sentenced to death. The San Bernardino Superior Court lacked the authority to grant habeas corpus relief and order the trial judge to conduct a new hearing on defendant's automatic motion to modify his death verdict (Penal Code section 190.4, subd. (e)), because the issue raised by the petition for writ of habeas corpus was also raised in the pending appeal to the California Supreme Court and could be decided on appeal.id: 14691
The court has full authority to modify the death verdict after independently reweighing the evidence.During the motion for modification of penalty the court stated, I don't think I have any right in that situation (where there were aggravating circumstances") to reverse the verdict of the jury." This was an incorrect statement of law and required a remand for a new hearing on the application to modify the verdict.id: 14692
The record did not show the trial court considered the probation report prior to ruling on the motion to modify the death verdict.Defendant argued the trial court erred in reviewing the probation officer's report prior to ruling on the motion to modify the death verdict. However, the record showed only that the court had read the probation report at the time the ruling on the motion was announced, not that the court considered the report in making the ruling.id: 14693
Use of advance planning of burglary as an aggravating factor was not improper.Defendant argued that in the motion to modify the verdict the court erroneously found aggravation in the fact that the burglary of the residence was planned in advance. Contrary to the defendant's argument, advance planning is not an element of burglary and the court's finding was proper.id: 14694
At the motion to modify the death verdict, the court is not required to make an independent and de novo penalty determination.Defendant made an application for modification of the verdict of death under Penal Code section 190.4, subd. (e). Defendant argued that the trial judge is required by section 190.4, subd. (e) to make a penalty determination of his own, independent of the jury's verdict. This is not the case. The trial judge's function is to independently reweigh the evidence of aggravating and mitigating circumstances, and then to determine whether, in the judge's independent judgment, the weight of the evidence supports the jury's verdict. The judge carried out his function in the instant case.id: 14658
Court did not commit prejudicial error in preparing a written statement of reasons in advance of the hearing on the modification of death verdict motion.The trial court had prepared a written statement of reasons in advance of the hearing on defendant's motion to modify the verdict of death. He argued that this denied him the right to meaningful argument on the motion. However, nothing in the record indicated the trial court failed to give due consideration to defense counsel's argument at the hearing.id: 14660
Court did not err in basing its denial of the modification motion upon findings of intentional murder and rape that the jury never made.Defendant argued it was improper for the trial court to base its denial of the motion to modify the death verdict upon findings of intentional murder and rape that the jury never made. The jury never made express findings on rape or intentional murder because the issues were never submitted to the jury, not because it resolved the issue in defendant's favor. Absent any express jury findings on these issues, the trial judge was permitted, and indeed required, to make whatever findings he deemed necessary to properly evaluate the circumstances of the offense in order to independently determine whether the weight of the evidence supported the death verdict.id: 14661
Court did not err in considering defendant's lack of remorse at the motion to modify the death verdict.Defendant argued the trial court erred at the motion to modify the death verdict in considering defendant's post offense conduct - lack of remorse - because evidence in aggravation bearing upon a nonstatutory matter may not be considered and the absence of a mitigating factor may not be considered a factor in aggravation. However, the record does not show that the court used lack of remorse as a circumstance in aggravation. Moreover, the trial court in a motion to modify the death verdict may consider a defendant's lack of remorse.id: 14662
Court did not err in formulating tentative rulings in advance of argument on the motion to modify the death verdict.Following defendant's argument on the motion to modify the death verdict, the court indicated it had already begun work and had virtually written my entire comments on the motion. Defendant argued the court improperly prejudged the matter. However, the practice of formulating tentative rulings in advance of argument and reducing those tentative rulings to writings is commonplace and unobjectionable.id: 14663
Court did not err at the modification motion in not considering neurological evidence that had not been presented to the jury.After the jury returned a death verdict and prior to sentencing defense counsel raised the possibility that defendant suffered organic brain damage. He argued that in ruling on the motion to modify the death verdict the court erred in excluding this evidence. However, no such evidence was brought before the jury and there was no evidence for the court to consider.id: 14664
Court did not err at the motion to modify the death verdict in referring to facts not before the jury where such facts were inferable from the evidence and the court stated it understood its obligation.Defendant argued the court erred in ruling on the motion to modify the death verdict by relying on evidence that was not before the jury, i.e., defendant's fugitive status at the time of the capital crimes or of the proximity of his release from prison to the 1984 murders. Defendant claimed such information was contained only in portions of confessions that were never admitted into evidence. However, the court stated it clearly understood its obligation to consider only those materials that were presented to the jury. Moreover, the facts cited by the court were readily inferable from the evidence presented to the jury.id: 14665
Court was not required to demand a written brief and substantial argument regarding the modification motion after defendant waived a jury at the penalty phaseDefendant waived jury at the penalty phase. Defense counsel orally requested that the court modify the death verdict. Defendant argued the court had a duty to demand a more substantial argument and a post-trial brief in support of the motion. However, the court had no reason to believe that additional argument or a supporting brief would have been any assistance to the court, particularly in light of the defendant's failure to present any evidence (other than a stipulation to his age) at the penalty phase.id: 14672
Court was not required to find defendant's cooperation with the police was a mitigating factor.Defendant argued the court erred in the motion for modification of penalty when it failed to find his cooperation with the police to be a circumstance in mitigation. However, no such finding was required.id: 14673
Court was not required to justify imposition of the death penalty at the modification of sentence hearing.Defendant argued that at the modification of sentence hearing, the court's statement of reasons failed to explain why the sadly unremarkable murder justified the death penalty. According to defendant in the absence of more egregious or heinous facts, the court erred in failing to reduce the sentence to life imprisonment without parole. However, the court was not required to justify the imposition of the death penalty. The court acted properly in outlining the relevant evidence and finding the aggravating circumstances outweighed mitigating ones.id: 14674
Court's broad statement at modification hearing complied with the statute.The court stated that it reviewed the entire record and found the death verdict was supported by the evidence. While the statement of reasons should have been more detailed, the court complied with Penal Code section 190.4.id: 14675
Capital defendant may waive his right to be present at the penalty reduction hearing but not the sentencing hearing.A capital defendant may waive the right to be present at the penalty reduction hearing. He may not, however, waive his right to be present at the imposition of sentence.id: 14139
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Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245