California, United States of America
The following excerpt is from People v. Earp, 20 Cal.4th 826, 85 Cal.Rptr.2d 857, 978 P.2d 15 (Cal. 1999):
"[S]ection 190.3, factor (a), specifically permits the jury to consider at the penalty phase '[t]he circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true....' As we have held, the trial court need not give a ' "clarifying gloss" ' on factor (a) ' "to inform the jury that its penalty determination must not be based on facts that are 'common to all homicides.' " ' [Citation.] The argument to the contrary reveals 'a "basic misunderstanding" of the statutory scheme since, in order to perform its moral evaluation of whether death was the appropriate penalty, the facts of the murder "cannot comprehensively be withdrawn from the jury's consideration...." ' [Citation.]" (People v. Hawkins (1995) 10 Cal.4th 920, 965-966, 42 Cal.Rptr.2d 636, 897 P.2d 574.) In addition, there is no constitutional requirement that in considering the aggravating circumstances of a capital crime, the penalty phase jury must "factor out" those constituent parts common to all first degree premeditated or felony murders. (Id. at p. 966, 42 Cal.Rptr.2d 636, 897 P.2d 574; accord, People v. Millwee (1998) 18 Cal.4th 96, 164, 74 Cal.Rptr.2d 418, 954 P.2d 990 [rejecting the argument that "double counting" of facts common to all first degree murders as facts in aggravation precludes any meaningful distinction between those who are sentenced to death and those who are not].) The same is true with regard to facts establishing the special circumstances.
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