CALCRIM No. 763

Aggravating or Mitigating (Pen. Code, § 190.3)

In reaching your decision, you must consider and weigh the aggravating

and mitigating circumstances or factors shown by the evidence.

An aggravating circumstance or factor is any fact, condition, or event

relating to the commission of a crime, above and beyond the elements of

the crime itself, that increases the wrongfulness of the defendant’s

conduct, the enormity of the offense, or the harmful impact of the crime.

An aggravating circumstance may support a decision to impose the

death penalty.

A mitigating circumstance or factor is any fact, condition, or event that

makes the death penalty less appropriate as a punishment, even though

it does not legally justify or excuse the crime. A mitigating circumstance

is something that reduces the defendant’s blameworthiness or otherwise

supports a less severe punishment. A mitigating circumstance may

support a decision not to impose the death penalty.

Under the law, you must consider, weigh, and be guided by specific

factors, where applicable, some of which may be aggravating and some

of which may be mitigating. I will read you the entire list of factors.

Some of them may not apply to this case. If you find there is no evidence

of a factor, then you should disregard that factor.

The factors are:

(a) The circumstances of the crime[s] of which the defendant was

convicted in this case and any special circumstances that were

found true

(b) Whether or not the defendant has engaged in violent criminal

activity other than the crime[s] of which the defendant was

convicted in this case. Violent criminal activity is criminal activity

involving the unlawful use, attempt to use, or direct or implied

threat to use force or violence against a person. [The other violent

criminal activity alleged in this case will be described in these

instructions.]

(c) Whether or not the defendant has been convicted of any prior

felony other than the crime[s] of which (he/she) was convicted in

this case.

(d) Whether the defendant was under the influence of extreme

mental or emotional disturbance when (he/she) committed the

crime[s] of which (he/she) was convicted in this case.

(e) Whether the victim participated in the defendant’s homicidal

conduct or consented to the homicidal act.

(f) Whether the defendant reasonably believed that circumstances

morally justified or extenuated (his/her) conduct in committing

the crime[s] of which (he/she) was convicted in this case.

(g) Whether at the time of the murder the defendant acted under

extreme duress or under the substantial domination of another

person.

(h) Whether, at the time of the offense, the defendant’s capacity to

appreciate the criminality of (his/her) conduct or to follow the

requirements of the law was impaired as a result of mental

disease, defect, or intoxication.

(i) The defendant’s age at the time of the crime[s] of which (he/she)

was convicted in this case.

(j) The defendant’s age at the time of the crime[s] of which (he/she)

was convicted in this case.

(k) Any other circumstance, whether related to these charges or not,

that lessens the gravity of the crime[s] even though the

circumstance is not a legal excuse or justification. These

circumstances include sympathy or compassion for the defendant

or anything you consider to be a mitigating factor, regardless of

whether it is one of the factors listed above.

[Y ou must disregard any jury instruction given to you in the guilt [and

sanity] phase[s] of this trial if it conflicts with your consideration and

weighing of these factors.]

Do not consider the absence of a mitigating factor as an aggravating

factor.

[Y ou may not consider as an aggravating factor anything other than the

factors contained in this list that you conclude are aggravating in this

case. Y ou must not take into account any other facts or circumstances as

a basis for imposing the death penalty.]

[Even if a fact is both a “special circumstance” and also a “circumstance

of the crime,” you may consider that fact only once as an aggravating

factor in your weighing process. Do not double-count that fact simply

because it is both a “special circumstance” and a “circumstance of the

crime.”]

[Although you may consider sympathy or compassion for the defendant,

you may not let sympathy for the defendant’s family influence your

decision. [However, you may consider evidence about the impact the

defendant’s execution would have on (his/her) family if that evidence

demonstrates some positive quality of the defendant’s background or

HOMICIDE CALCRIM No. 763

character.]]

New January 2006; Revised August 2006, June 2007, April 2008, December 2008,

March 2021, March 2023, September 2023