990
Blackmun, J., dissenting
No less a danger is that jurors—or even judges—will treat the mere absence of a mitigator as an aggravator, transforming a neutral or factually irrelevant factor into an illusory aggravator.18 Although the California Supreme Court has ruled that certain of the factors can serve only as mitigators,19 it has not required that the jury be so instructed. See, e. g., People v. Raley, 2 Cal. 4th 870, 919, 830 P. 2d 712, 744-745 (1992), cert. denied, 507 U. S. 945 (1993). Nor has that court restricted jury instructions to those aggravating
So. 2d 1126, 1129-1130 (La. 1985) (invalidating aggravating circumstance of "significant" history of criminal conduct).
18 Judges, as well as juries, have fallen into this trap. See, e. g., People v. Kaurish, 52 Cal. 3d 648, 717, 802 P. 2d 278, 316 (1990) (trial judge concluded that factor (h), dealing with a defendant's impaired capacity to appreciate the criminality of his actions, was an aggravating factor because defendant did not have diminished capacity or other impairment), cert. denied, 502 U. S. 837 (1991); People v. Hamilton, 48 Cal. 3d 1142, 1186, 774 P. 2d 730, 757 (1989) (trial court concluded that 10 of 11 factors were aggravating, including factors (d)-(h) and (j)), cert. denied, 494 U. S. 1039 (1990).
19 The factors that can serve only as mitigators are: "(d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
"(e) Whether or not the victim was a participant in the defendant's homicidal act or consented to the homicidal act.
"(f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.
"(g) Whether or not defendant acted under extreme duress or under the substantial domination of another person.
"(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease and defect, or the [e]ffects of intoxication.
"(i) The age of the defendant at the time of the crime. "(j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor." Cal. Penal Code Ann. § 190.3 (West 1988); see also Amicus Brief 22-24, and nn. 47, 48, and cases cited therein.
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