Does section 8.85 of the California Criminal Code, which instructed the jury to consider whether or not certain mitigating factors were present, unconstitutionally suggest that the absence of such factors amounted to aggravation?
California, United States of America
The following excerpt is from People v. Kopatz, 186 Cal.Rptr.3d 797, 347 P.3d 952, 61 Cal.4th 62 (Cal. 2015):
CALJIC No. 8.85, which instructed the jury to consider whether or not certain mitigating factors were present, did not unconstitutionally suggest that the absence of such factors amounted to aggravation. (People v. Mendoza (2011) 52 Cal.4th 1056, 1097, 132 Cal.Rptr.3d 808, 263 P.3d 1 ;
[61 Cal.4th 95]
People v. Whisenhunt (2008) 44 Cal.4th 174, 228, 79 Cal.Rptr.3d 125, 186 P.3d 496.) Nor was the trial court constitutionally required to instruct the jury as to which of the listed sentencing factors are aggravating, which are mitigating, and which could be either mitigating or aggravating, depending upon the jury's appraisal of the evidence. (
[186 Cal.Rptr.3d 825]
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