Judge Walter Calcagno's Instructions to the Jury

Ladies and Gentlemen of the Jury:

Now that you have heard the evidence we come to that part of the trial where you are instructed on the applicable law.

Whether a defendant is to be found guilty or not guilty depends upon both the facts and the law .... You must accept and follow the rules of law as I state them to you. As jurors you must not be influenced by pity for a defendant or by prejudice against him. You must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.

1. Evidence consists of testimony of witnesses, writings, material objects, or anything presented to the senses and offered to prove the existence or non-existence of a fact.

Evidence is either direct or circumstantial.

Direct evidence is evidence that directly proves a fact, without the necessity of an inference, and which by itself, if found to be true, establishes that fact.

Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn.

An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence.

It is not necessary that facts be proved by direct evidence. They may be proved also by circumstantial evidence or by a combination of direct evidence and circumstantial evidence.

Both direct evidence and circumstantial evidence are acceptable as a means of proof.

Neither is entitled to any greater weight than the other.

2. The mental state with which an act is done may be shown by the circumstances surrounding the commission of the act. But you may not find the defendant guilty of the offenses ... unless the proved circumstances not only are consistent with the theory that he had the required mental state but cannot be reconciled with any other rational conclusions.

Also, if the evidence as to such mental state is susceptible of two reasonable interpretations, one of which points to the existence of the mental state and the other to the absence of the mental state, it is your duty to adopt that interpretation which points to the absence of the mental state. If, on the other hand, one interpretation of the evidence as to such mental state appears to you to be reasonable and the other interpretation to be unreasonable, it would be your duty to accept the reasonable interpretation and to reject the unreasonable.

3. Every person who testifies under oath or affirmation is a witness.

You are the sole judges of the believability of a witness and the weight to be given to his testimony.

In determining the believability of a witness you may consider anything that has a tendency in reason to prove or disprove the truthfulness of his testimony, including but not limited to any of the following:

The extent of his opportunity and ability to see or hear or otherwise become aware of; to remember or to communicate any matter about which he testifies;

The character and quality of his testimony;

The demeanor of the witness while testifying and the manner in which he testifies;

His character for honesty or truthfulness or their opposites;

The existence or nonexistence of a bias, interest, or other motive;

A statement previously made by him that is consistent or inconsistent with his testimony;

Evidence of the existence or nonexistence of any fact testified to by him;

His attitude toward the action in which he testifies or toward the giving of testimony;

4. Evidence of the character of a witness for honesty or veracity may be considered in determining his credibility. Also, in judging the credibility of any statements of the defendant which have been admitted into evidence, you may consider any evidence regarding his reputation for honesty or veracity.

5. Evidence has been received which may tend to show the good character of the defendant- for those traits ordinarily involved in the commission of a crime, such as that charged in this case.

Good character for the traits involved in the commission of the crimes charged may be sufficient by itself to raise a reasonable doubt as to the guilt of a defendant. It may be reasoned that a person of good character as to such traits would not be likely to commit the crimes of which the defendant is charged.

6. It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. You must not draw any inference from the fact that he does not testify. Further, you must neither discuss this matter not permit it to enter into your deliberations in any way.

7. A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to quality him as an expert on the subject to which his testimony relates. Duly qualified experts may give their opinions on questions in controversy at a trial. To assist you in deciding such questions, you may consider the opinion with the reasons given for it, if any, by the expert who gives the opinion. You may also consider the qualifications and credibility of the expert.

In resolving any conflict that may exist in the testimony of expert witnesses, you should weigh the opinion of one expert against that of another. In doing this, you should consider the relative qualifications and credibility of the expert witnesses, as well as the reasons for each opinion and the facts and other matters upon which it was based.

You are not bound to accept an expert opinion as conclusive, but should give to it the weight to which you find it to be entitled. You may disregard any such opinion if you find it to be unreasonable.

8. A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty.

This presumption places upon the State the burden of proving him guilty beyond a reasonable doubt. . . .

9. In the crimes charged in Counts One and Two of the Information, murder, or in any of the lesser included offenses for which you will be given verdict forms, there must exist a union or joint operation of act or conduct and a certain mental state in the mind of the perpetrator, and unless such mental state exists, the crime to which it relates is not committed.

In the crime of murder of the first degree the necessary concurrent mental states are: malice aforethought, premeditation and deliberation.

In the crime of murder of the second degree, the necessary mental state is malice aforethought.

In the crime of voluntary manslaughter, the necessary mental state is intent to kill.

Involuntary manslaughter is an unlawful killing without malice aforethought and without intent to kill. . .

10. Defendant is charged in Counts One and Two of the information with the commission of the crime of murder. a violation of Section 187 of the Penal Code.

The crime of murder is the unlawful killing of a human being with malice aforethought.

In order to prove the commission of the crime of murder each of the following elements must be proved:

(1) That a human being was killed.

(2) That the killing was unlawful, and

(3) That the killing was done with malice aforethought.

11. Malice may be either express or implied.

Malice is express when there is manifested an intent unlawfully to kill a human being.

Malice is implied when the killing results from an act involving a high degree of probability that it will result in death, which act is done for a base,  antisocial purpose and with a wanton disregard for human life by which is meant an awareness of a duty imposed by law not to commit such acts followed by the commission of the forbidden act despite that awareness or when the killing is a direct causal result of the perpetration or the attempt to perpetrate a felony inherently dangerous to human life.

The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed.

Aforethought does not imply deliberation or lapse of considerable time; it only means that the required mental state must precede rather than follow the act.

12. All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree.

The word willful as used in this instruction means intentional.

The word deliberate means formed or arrived at or determined upon as a result of careful thought and weighing of considerations' for an against the proposed course of action.

The term deliberate further means that the act must have been the result of careful thought and weighing of consideration carried on coolly and steadily. In this regard, deliberate means the weighing of facts and arguments with a view to a choice or decision, careful in considering the consequences of a step, unhurried, characterized by reflection; dispassionate, and in no way rash. Deliberation means careful consideration and examination of the reasons both for and against a choice or measure, said weighing of the reasons for and against a choice or measure being done in a cool, careful, reflective and organized way.

The word premeditated means considered beforehand, to think on and revolve in the mind beforehand, to contrive and design previously.

If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree. The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances.

The true test is not the duration of time, but rather the extent of reflection. Although a cold, calculated judgment and decision may be arrived at in a short period of time, a mere unconsidered and rash impulse, even though it included an intent to kill, is not such deliberation and premeditation as will fix an unlawful killing as murder of the first degree.

To constitute a deliberate and premeditated killing the slayer must weigh and consider the question of killing and the reasons for and against such a choice, and, having in mind the consequences to himself, the victim and all others concerned, he decides to, and does kill.

13. Murder of the second degree is the unlawful killing of a human being with malice aforethought when there is manifested an intention unlawfully to kill a human being but the evidence is insufficient to establish deliberation and premeditation.

14. The crime of voluntary manslaughter is the unlawful killing of a human being without malice aforethought when there is an intent to kill.

There is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion.

In order to prove the commission of the crime of voluntary manslaughter, each of the following elements must be proved:

(1) That a human being was killed,

(2) That the killing was unlawful, and

(3) That the killing was done with the intent to kill.

15. Voluntary manslaughter is the intentional and unlawful killing of a human being without malice aforethought.

There is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion or if the evidence shows that due to diminished capacity caused by mental illness, mental defect, or intoxication, the defendant did not have the capacity to form the mental state constituting malice aforethought, even though the killing was intentional, voluntary, deliberate, premeditated, and unprovoked.

16. To reduce an intentional felonious homicide from the offense of murder to manslaughter upon the ground of sudden quarrel or heat of passion, the provocation must be of such character and degree as naturally would excite and· arouse such passion, and the assailant must act under the smart of that sudden quarrel or heat of passion.

The heat of passion which will reduce a homicide to manslaughter must be such that a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances. A defendant is not permitted to set up his own standard of conduct and to justify or excuse himself because his passions were aroused, unless the circumstances in which he was placed and the facts that confronted him were such as also would have aroused the passions of the ordinarily reasonable man faced with the same situation.

However, in determining whether a person in the same circumstances would be aroused to a heat of passion, you may consider such circumstances as the defendant's physical, mental, and emotional state at the time.

The question to be answered is whether or not, at the time of the killing, the reason of accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, arid from such passion rather than from judgment.

In determining whether defendant had diminished mental capacity, if there was evidence that defendant's act was a product of an irresistab1e impulse, you must consider whether or not such irresistab1e impulse, if any, was due to mental illness, mental disease, extreme stress, emotional disturbance, or any other cause, so as to render defendant incapable of forming the mental states essential to murder or voluntary manslaughter.

Irresistible impulse, within the meaning of this instruction, means an inability, due to mental illness, mental disease, extreme stress, emotional disturbance, or other cause, to conform one's conduct to the requirements of the law. If you have a reasonable doubt, whether defendant was able for such reasons to control of his conduct, you have a duty to resolve that doubt in favor of defendant.

17. Neither the emotion of fear, of itself, nor the emotion for revenge, of itself, nor the emotion induced by and accompanying or following an intent to commit a felony, of itself, nor any or all of these emotional states, in and of themselves, constitutes the heat of passion referred to in the law of manslaughter which I have stated to you.  Any or all of such specific emotions may be involved in a heat of passion that causes judgment to give way to impulse and rashness, but also anyone or more of them may exist in the mind of a person who acts deliberately and from choice following his own reasoning howsoever good or bad it may be.

18. To establish that a killing is murder and not manslaughter, the burden is on the State to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel.

19. If you are convinced beyond a reasonable doubt that the crime of murder has been committed by a defendant, but you have a reasonable doubt whether such murder was of the first or of the second degree, you must give defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree.

20. If you are satisfied beyond a reasonable doubt that the killing was unlawful, but you have a reasonable doubt whether the crime is murder or manslaughter, you must give the defendant the benefit of such doubt and find it to be manslaughter rather than murder.

21. If you find from the evidence that at the time the alleged crime was committed, the defendant had substantially reduced mental capacity, whether caused by mental illness, mental defect, intoxication, or any other cause, you must consider what effect, if any, this diminished capacity had on the defendant's ability to form any of the specific mental states that are essential elements of murder and voluntary manslaughter.

Thus, if you find that the defendant's mental capacity was diminished to the extent that you have a reasonable doubt whether he did, maturely and meaningfully, premeditate, deliberate, and reflect upon the gravity of his contemplated act, or form an intent to kill, you cannot find him guilty of a willful, deliberate and premeditated murder of the first degree.

Also, if you find that the defendant's mental capacity was diminished to the extent that you have a reasonable doubt whether he was able to form the mental states constituting either express or implied malice aforethought, you cannot find him guilty of murder of either the first or second degree.

22. In determining if defendant had diminished mental capacity, if there was evidence that defendant's act was the product of an irresistible impulse, you must consider whether or not such irresistible impulse, if any, was due to mental illness, mental disease or mental defect so as to render defendant incapable of forming the mental states essential to murder or voluntary manslaughter .

23. If you find the defendant in this case guilty of murder of the first degree, you must then determine if the murder was committed under one or more of the following special circumstances:

(1) It is alleged that the defendant, Daniel James White, in this proceeding has been charged with more than one offense of murder.

(2) It is alleged that George R. Moscone was an elected official of the government of the City and County of San Francisco, State of California, and the killing as was alleged in Count I was personally carried out in retaliation for and to prevent the performance of the official duties of the said George R. Moscone.

(3) It is alleged that Harvey Milk was an elected local official of the government of the City and County of San Francisco, State of California, and the killing as was alleged in Count IT was personally carried out in retaliation for and to prevent the performance of the official duties of the said Harvey Milk. A special circumstance must be proved beyond a reasonable doubt.

If you have a reasonable doubt as to whether a special circumstance is true, it is your duty to find that it is not true. . . .

24. To find that the special circumstance, referred to in these instructions as murder of a public official, is true, each of the following facts must be proved:

(1) That the persons killed were public ally elected officials.

(2) That the public official was intentionally killed in retaliation for or to prevent the performance of his official duties.

25. You are not permitted to find the special circumstances charged in this case to be true based on circumstantial evidence unless the proved facts are not only (1) consistent with the theory that the special circumstances are true, but (2) cannot be reconciled with any other rational conclusion. Each fact which is essential to complete a set of facts necessary to establish the truth of the special circumstances must be proved beyond a reasonable doubt.

Also, if the circumstantial evidence is susceptible of two reasonable interpretations, one of which points to the truth of the special circumstances and the other to their untruth, it is your duty to adopt the interpretation which points to their untruth, and reject the interpretation which points to their truth. If, on the other hand, one interpretation of such evidence appears to you to be reasonable and the other interpretation to be unreasonable, it would be your duty to accept the reasonable interpretation and to reject the unreasonable.

26. In your deliberations the subject of penalty or punishment is not to be discussed or considered by you. That is a matter which must not in any way affect your verdict or affect your finding as to the special circumstances charged in this case. . . .

27. You shall now retire and select one of your number to act as foreperson, who will preside over your deliberations. In order to reach a verdict, all twelve jurors must agree to the decision and to any finding you have been instructed to include in your verdict. As soon as all of you have agreed upon a verdict, you shall have it dated and signed by your foreman and then shall return with it to this courtroom.