California Codes

Cal. Penal Code § 190.4 (2026)

✓ current as of May 2026

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(a)Whenever special circumstances as enumerated in Section 190.2 are alleged and the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall also make a special finding on the truth of each alleged special circumstance. The determination of the truth of any or all of the special circumstances shall be made by the trier of fact on the evidence presented at the trial or at the hearing held pursuant to Subdivision (b) of Section 190.1.

In case of a reasonable doubt as to whether a special circumstance is true, the defendant is entitled to a finding that is not true. The trier of fact shall make a special finding that each special circumstance charged is either true or not true. Whenever a special circumstance requires proof of the commission or attempted commission of a crime, such crime shall be charged and proved pursuant to the general law applying to the trial and conviction of the crime.

If the defendant was convicted by the court sitting without a jury, the trier of fact shall be a jury unless a jury is waived by the defendant and by the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and by the people.

If the trier of fact finds that any one or more of the special circumstances enumerated in Section 190.2 as charged is true, there shall be a separate penalty hearing, and neither the finding that any of the remaining special circumstances charged is not true, nor if the trier of fact is a jury, the inability of the jury to agree on the issue of the truth or untruth of any of the remaining special circumstances charged, shall prevent the holding of a separate penalty hearing.

In any case in which the defendant has been found guilty by a jury, and the jury has been unable to reach an unanimous verdict that one or more of the special circumstances charged are true, and does not reach a unanimous verdict that all the special circumstances charged are not true, the court shall dismiss the jury and shall order a new jury impaneled to try the issues, but the issue of guilt shall not be tried by such jury, nor shall such jury retry the issue of the truth of any of the special circumstances which were found by an unanimous verdict of the previous jury to be untrue. If such new jury is unable to reach the unanimous verdict that one or more of the special circumstances it is trying are true, the court shall dismiss the jury and in the court’s discretion shall either order a new jury impaneled to try the issues the previous jury was unable to reach the unanimous verdict on, or impose a punishment of confinement in state prison for a term of 25 years.

(b)If defendant was convicted by the court sitting without a jury the trier of fact at the penalty hearing shall be a jury unless a jury is waived by the defendant and the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and the people.

If the trier of fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and shall order a new jury impaneled to try the issue as to what the penalty shall be. If such new jury is unable to reach a unanimous verdict as to what the penalty shall be, the court in its discretion shall either order a new jury or impose a punishment of confinement in state prison for a term of life without the possibility of parole.

(c)If the trier of fact which convicted the defendant of a crime for which he may be subject to the death penalty was a jury, the same jury shall consider any plea of not guilty by reason of insanity pursuant to Section 1026, the truth of any special circumstances which may be alleged, and the penalty to be applied, unless for good cause shown the court discharges that jury in which case a new jury shall be drawn. The court shall state facts in support of the finding of good cause upon the record and cause them to be entered into the minutes.

(d)In any case in which the defendant may be subject to the death penalty, evidence presented at any prior phase of the trial, including any proceeding under a plea of not guilty by reason of insanity pursuant to Section 1026 shall be considered an any subsequent phase of the trial, if the trier of fact of the prior phase is the same trier of fact at the subsequent phase.

(e)In every case in which the trier of fact has returned a verdict or finding imposing the death penalty, the defendant shall be deemed to have made an application for modification of such verdict or finding pursuant to Subdivision 7 of Section 11. In ruling on the application, the judge shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in Section 190.3, and shall make a determination as to whether the jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented. The judge shall state on the record the reasons for his findings.

The judge shall set forth the reasons for his ruling on the application and direct that they be entered on the Clerk’s minutes. The denial of the modification of the death penalty verdict pursuant to subdivision (7) of Section 1181 shall be reviewed on the defendant’s automatic appeal pursuant to subdivision (b) of Section 1239. The granting of the application shall be reviewed on the People’s appeal pursuant to paragraph (6).

Notes of Decisions

Cited in 106 cases (7 in the last 5 years), 1980–2022 · leading case: People v. Rangel, 367 P.3d 649 (Cal. 2016).

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People v. Rangel, 367 P.3d 649 (Cal. 2016). · cites it 2× “(Pen. Code, § 190.4.) At the point the court rules on this motion, the jury “has returned a verdict or finding imposing the death penalty.”

People v. Jackson, 376 P.3d 528 (Cal. 2016). · cites it 2× “(Pen. Code, § 190.4.) At the point the court rules on this motion, the jury ‘has returned a verdict or finding imposing the death penalty.”

People v. Young, 445 P.3d 591 (Cal. 2019). · cites it 3× “Code, § 190.4, subd. (b).) Defendant argues that mandatory retrial of the penalty phase violates the Eighth Amendment to the federal Constitution because such a retrial violates evolving standards of decency, as demonstrated by the differing practices of other states, and "sends…”

People v. Waidla, 996 P.2d 46 (Cal. 2000). · cites it 3× “If such new jury is unable to reach a unanimous verdict as to what the penalty shall be, the court in its discretion shall either order a new jury or impose a punishment of confinement in state prison for a term of life without the possibility of parole” (Pen.”

People v. Marshall, 919 P.2d 1280 (Cal. 1996). · cites it 4× “Under California law, a defendant in a capital case becomes eligible for the death penalty only after a finding by the jury that at least one special circumstance allegation is true.”

People v. Brown, 758 P.2d 1135 (Cal. 1988). · cites it 4× “In addition to the errors during the penalty trial, the court also erred in ruling on the motion to modify the judgment (Pen. Code, § 190.4). Its *477 ruling erroneously stated that the absence of evidence of mitigating factors rendered those factors aggravating, and…”

People v. Brown, 862 P.2d 710 (Cal. 1993). · cites it 6× “) Our opinion on remand found no error requiring retrial of the guilt or penalty issues, but because the trial court erred in its ruling on defendant's automatic motion to modify the verdict (Pen. Code, § 190.4, subd. (e)), we reversed the penalty judgment and remanded "to the…”

People v. Alvarez, 926 P.2d 365 (Cal. 1996). · cites it 3× “That is to say, it effectively “review[ed] the evidence”; “consider[ed], [took] into account, and [was] guided by the aggravating and mitigating circumstances”; “ma[d]e a determination” that “the jury’s findings and verdicts” were not “contrary to law or the evidence presented”;…”

People v. Manibusan, 314 P.3d 1 (Cal. 2013). · cites it 2× “After denying the automatic application to modify the verdict (Pen. Code, § 190.4, subd. (e)),1 the trial court sentenced defendant to death for those murder convictions.”

People v. Carpenter, 988 P.2d 531 (Cal. 1999). · cites it 4× “The trial court expressed the view that it was "almost automatic" that the jury, which had found defendant guilty of the charged crimes, would find he also killed Heather Scaggs once the prosecution proved the same person committed that crime.”

People v. Geier, 161 P.3d 104 (Cal. 2007). · cites it 2× “The trial court declined to modify the verdict (Pen. Code, § 190.4, subd. (e)), and sentenced defendant to death on the murder counts.”

People v. Loy, 254 P.3d 980 (Cal. 2011). · cites it 2× “(Pen. Code, § 190.4.) This appeal is automatic.”

Show all 106 citing cases →

— Cal. Penal Code § 190.4(a) — 6 cases

State v. Tillman, 750 P.2d 546 (Utah 1987).

Phillips v. Ornoski, 673 F.3d 1168 (9th Cir. 2012).

State v. Steele, 921 So. 2d 538 (Fla. 2006).

Robert Alton Harris v. R. Pulley, Warden of the California State Prison at San Quentin, 692 F.2d 1189 (9th Cir. 1982).

State v. Peralto, 18 P.3d 203 (Haw. 2001).

— Cal. Penal Code § 190.4(b) — 10 cases

Cullen v. Pinholster, 563 U.S. 170 (2011).

Marvin Walker v. Michael Martel, 709 F.3d 925 (9th Cir. 2013).

Albert Cunningham v. Robert Wong, 704 F.3d 1143 (9th Cir. 2013).

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

— Cal. Penal Code § 190.4(c) — 2 cases

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

(DP) Weaver v. Chappell (E.D. Cal. 2021).

— Cal. Penal Code § 190.4(d) — 2 cases

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

Williams v. Vasquez, 817 F. Supp. 1443 (E.D. Cal. 1993).

— Cal. Penal Code § 190.4(e) — 12 cases

Belmontes v. Ayers, 529 F.3d 834 (9th Cir. 2008).

People v. Brown, 862 P.2d 710 (Cal. 1993). “) Our opinion on remand found no error requiring retrial of the guilt or penalty issues, but because the trial court erred in its ruling on defendant's automatic motion to modify the verdict (Pen. Code, § 190.4, subd. (e)), we reversed the penalty judgment and remanded "to the…”

Clarence Ray Allen v. Jeanne S. Woodford, Warden, of the California State Prison at San Quentin, 395 F.3d 979 (9th Cir. 2005).

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

Robert Alton Harris v. R. Pulley, Warden of the California State Prison at San Quentin, 692 F.2d 1189 (9th Cir. 1982).

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