Can an instruction of the Circumstances of the Crime, Other Violent Criminal Activity and Prior Felony Convictions be taken by the jury to permit double-counting?
California, United States of America
The following excerpt is from People v. Ashmus, 2 Cal.Rptr.2d 112, 54 Cal.3d 932, 820 P.2d 214 (Cal. 1991):
All the same, an instruction such as that given by the trial court in this case "might conceivably" be taken by a jury to permit "double-count[ing]" (People v. Melton, supra, 44 Cal.3d at p. 768, 244 Cal.Rptr. 867, 750 P.2d 741) if its language were construed loosely to refer to "the circumstances of the special circumstances" as well as "the circumstances of the crime." (Italics added.) In view of such an eventuality, we have stated that "On defendant's request, the trial court should admonish the jury not to [double-count]." (Ibid.) Here, defendant made no such request.
4. Instruction of the Circumstances of the Crime, Other Violent Criminal Activity, and Prior Felony Convictions
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