California Codes

Cal. Penal Code § 190.3 (2026)

✓ current as of May 2026

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If the defendant has been found guilty of murder in the first degree, and a special circumstance has been charged and found to be true, or if the defendant may be subject to the death penalty after having been found guilty of violating subdivision (a) of Section 1672 of the Military and Veterans Code or Sections 37, 128, 219, or 4500 of this code, the trier of fact shall determine whether the penalty shall be death or confinement in state prison for a term of life without the possibility of parole. In the proceedings on the question of penalty, evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence including, but not limited to, the nature and circumstances of the present offense, any prior felony conviction or convictions whether or not such conviction or convictions involved a crime of violence, the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the express or implied threat to use force or violence, and the defendant’s character, background, history, mental condition and physical condition.

However, no evidence shall be admitted regarding other criminal activity by the defendant which did not involve the use or attempted use of force or violence or which did not involve the express or implied threat to use force or violence. As used in this section, criminal activity does not require a conviction.

However, in no event shall evidence of prior criminal activity be admitted for an offense for which the defendant was prosecuted and acquitted. The restriction on the use of this evidence is intended to apply only to proceedings pursuant to this section and is not intended to affect statutory or decisional law allowing such evidence to be used in any other proceedings.

Except for evidence in proof of the offense or special circumstances which subject a defendant to the death penalty, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial. Evidence may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation.

The trier of fact shall be instructed that a sentence of confinement to state prison for a term of life without the possibility of parole may in future after sentence is imposed, be commuted or modified to a sentence that includes the possibility of parole by the Governor of the State of California.

In determining the penalty, the trier of fact shall take into account any of the following factors if relevant:

(a)The 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 pursuant to Section 190.1.

(b)The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.

(c)The presence or absence of any prior felony conviction.

(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 conduct 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 or defect, or the affects 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.

(k)Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.

After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances the trier of fact shall impose a sentence of confinement in state prison for a term of life without the possibility of parole.

Notes of Decisions

Cited in 230 cases (20 in the last 5 years), 1977–2026 · leading case: People v. Sánchez, 375 P.3d 812 (Cal. 2016).

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People v. Sánchez, 375 P.3d 812 (Cal. 2016). · cites it 8× “Admission of Other Crimes Evidence Over defendant‘s objection, the court ruled that the jury could consider at the penalty phase the evidence of the 1990 incident at Rod‘s Coffee Shop under Penal Code section 190.3, factor (b) (criminal activity involving force or violence).”

Ayers v. Belmontes, 549 U.S. 7 (2006). · cites it 12× “See Cal.Penal Code Ann. § 190.3 (providing that, "[i]n determining the penalty, the trier of fact shall take into account" any relevant listed factors); see generally Tuilaepa v.”

Brown v. Sanders, 546 U.S. 212 (2006). · cites it 10× “Cal. Penal Code Ann. § 190.3 (West 1999).”

California v. Ramos, 463 U.S. 992 (1983). · cites it 8× “[5] The jury returned a verdict of death. On appeal the Supreme Court of California affirmed respondent's conviction but reversed the death sentence, concluding that the Briggs Instruction required by Cal.”

Tuilaepa v. California, 512 U.S. 967 (1994). · cites it 8× “" Cal. Penal Code Ann. § 190.3 (West 1988).”

Kirkpatrick v. Chappell, 926 F.3d 1157 (9th Cir. 2017). · cites it 10× “Cal. Penal Code § 190.3 . The prosecution and defense had the opportunity to present aggravating and mitigating evidence to the jury to support their arguments regarding which sentence Kirkpatrick should receive.”

People v. Johnson, 364 P.3d 359 (Cal. 2016). · cites it 4× “(Pen. Code, § 190.3, factor (a); see People v.”

Wong v. Belmontes, 558 U.S. 15 (2009). · cites it 4× “When Fernando Belmontes was sentenced to death in 1982, California Penal Code §190.3(k)* conveyed the unmistakable message that juries could not give any mitigating weight to evidence that did not extenuate the severity of the crime.”

People v. Yeoman, 72 P.3d 1166 (Cal. 2003). · cites it 4× “[ถ] A military court-martial adjudication does not constitute a prior felony conviction under California Penal Code section 190.3, [factor] (b).”

People v. Steskal, 485 P.3d 1 (Cal. 2021). · cites it 5× “The trial court found evidence of multiple crimes admissible pursuant to Penal Code section 190.3, factor (b): attempted escape (Pen.”

William Charles Payton v. Jeanne Woodford, Warden, William Charles Payton v. Jeanne Woodford, Warden, 299 F.3d 815 (9th Cir. 2002). · cites it 8× “1 California Jury Instructions, Criminal (“CALJIC”) 8.84.1 (4th ed.1979). That instruction simply quotes factor (k), directing the jury to consider any circumstance “which extenuates the gravity of the crime even though it is not a legal excuse for the crime.”

Ring v. Arizona, 536 U.S. 584 (2002). · cites it 2× “§ 5 -4602 (1993); Cal. Penal Code Ann. § 190.3 (West 1999); Conn.”

Show all 230 citing cases →

— Cal. Penal Code § 190.3(a) — 9 cases

Tuilaepa v. California, 512 U.S. 967 (1994). “" Cal. Penal Code Ann. § 190.3 (West 1988).”

Brown v. Sanders, 546 U.S. 212 (2006). “Cal. Penal Code Ann. § 190.3 (West 1999).”

Pinholster v. Ayers, 525 F.3d 742 (9th Cir. 2008).

State v. Pirtle, 904 P.2d 245 (Wash. 1995).

Keith Daniel Williams v. Arthur Calderon, Warden, San Quentin State Prison, 52 F.3d 1465 (9th Cir. 1995).

— Cal. Penal Code § 190.3(b) — 12 cases

People v. Yeoman, 72 P.3d 1166 (Cal. 2003). “[ถ] A military court-martial adjudication does not constitute a prior felony conviction under California Penal Code section 190.3, [factor] (b).”

Odle v. Calderon, 884 F. Supp. 1404 (N.D. Cal. 1995).

Keith Daniel Williams v. Arthur Calderon, Warden, San Quentin State Prison, 52 F.3d 1465 (9th Cir. 1995).

Mitchell Carlton Sims v. Jill Brown, Warden, 425 F.3d 560 (9th Cir. 2005).

Commonwealth v. May, 898 A.2d 559 (Pa. 2006).

— Cal. Penal Code § 190.3(c) — 1 case

Hamilton v. Ayers, 458 F. Supp. 2d 1075 (E.D. Cal. 2006).

— Cal. Penal Code § 190.3(d) — 8 cases

Hamilton v. Ayers, 583 F.3d 1100 (9th Cir. 2009).

Keith Daniel Williams v. Arthur Calderon, Warden, San Quentin State Prison, 52 F.3d 1465 (9th Cir. 1995).

Roybal v. Davis, 148 F. Supp. 3d 958 (S.D. Cal. 2015).

Hendricks v. Calderon, 70 F.3d 1032 (9th Cir. 1995).

Visciotti v. Woodford, 288 F.3d 1097 (9th Cir. 2002).

— Cal. Penal Code § 190.3(e) — 1 case

United States v. Beckford, 962 F. Supp. 804 (E.D. Va. 1997).

— Cal. Penal Code § 190.3(f) — 1 case

(DP) Catlin v. Davis (E.D. Cal. 2019).

— Cal. Penal Code § 190.3(h) — 7 cases

Robert Alton Harris v. R. Pulley, Warden of the California State Prison at San Quentin, California, 885 F.2d 1354 (9th Cir. 1989).

Delaney Marks v. Ronald Davis, 106 F.4th 941 (9th Cir. 2024).

Robert Alton Harris v. R. Pulley, Warden of the California State Prison at San Quentin, California, 852 F.2d 1546 (9th Cir. 1988).

Penry v. Lynaugh, 492 U.S. 302 (1989).

Smith v. Francis, Warden, 474 U.S. 925 (1985).

— Cal. Penal Code § 190.3(i) — 4 cases

Johnson v. Texas, 509 U.S. 350 (1993).

Hernandez v. Martel, 824 F. Supp. 2d 1025 (C.D. Cal. 2011).

Stanford v. Kentucky, 492 U.S. 361 (1989).

(DP) Catlin v. Davis (E.D. Cal. 2019).

— Cal. Penal Code § 190.3(k) — 20 cases

Ayers v. Belmontes, 549 U.S. 7 (2006). “See Cal.Penal Code Ann. § 190.3 (providing that, "[i]n determining the penalty, the trier of fact shall take into account" any relevant listed factors); see generally Tuilaepa v.”

Wong v. Belmontes, 558 U.S. 15 (2009). “When Fernando Belmontes was sentenced to death in 1982, California Penal Code §190.3(k)* conveyed the unmistakable message that juries could not give any mitigating weight to evidence that did not extenuate the severity of the crime.”

William Charles Payton v. Jeanne Woodford, Warden, William Charles Payton v. Jeanne Woodford, Warden, 299 F.3d 815 (9th Cir. 2002). “1 California Jury Instructions, Criminal (“CALJIC”) 8.84.1 (4th ed.1979). That instruction simply quotes factor (k), directing the jury to consider any circumstance “which extenuates the gravity of the crime even though it is not a legal excuse for the crime.”

Demetrie Ladon Mayfield v. Jeanne Woodford, Warden, 270 F.3d 915 (9th Cir. 2001).

Pinholster v. Ayers, 590 F.3d 651 (9th Cir. 2009).

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.