200. Duties of Judge and Jury
Members of the jury, I will now instruct you on the law that applies to this case. [I will give you a copy of the instructions to use in the jury room.] [Each of you has a copy of these instructions to use in the jury room.]
You must decide what the facts are. It is up to you, exclusively, to decide what happened, based only on the evidence that has been presented to you in this trial.
Do not let bias, sympathy, prejudice, or public opinion influence your decision.
You must reach your verdict without any consideration of punishment.
You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions.
Pay careful attention to all of these instructions and consider them together. If I repeat any instruction or idea, do not conclude that it is more important than any other instruction or idea just because I repeated it.
Some words or phrases used during this trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in these instructions. Please be sure to listen carefully and follow the definitions that I give you. Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings.
Some of these instructions may not apply, depending on your findings about the facts of the case. [Do not assume just because I give a particular instruction that I am suggesting anything about the facts.] After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.
The court has a sua sponte duty to instruct that the jurors are the exclusive judges of the facts and that they are entitled to a copy of the written instructions when they deliberate. (Pen. Code, §§ 1093(f), 1137.) Although there is no sua sponte duty to instruct on the other topics described in this instruction, there is authority approving instruction on these topics.
In the first paragraph, select the appropriate bracketed alternative on written instructions. Penal Code section 1093(f) requires the court to give the jury a written copy of the instructions on request. The committee believes that the better practice is to always provide the jury with written instructions. If the court, in the absence of a jury request, elects not to provide jurors with written instructions, the court must modify the first paragraph to inform the jurors that they may request a written copy of the instructions.
Do not give the sentence that begins "Do not let bias," in the penalty phase of a capital trial.
Do not give the bracketed sentence in the final paragraph if the court will be commenting on the evidence pursuant to Penal Code section 1127.
Copies of Instructions. Pen. Code, §§ 1093(f), 1137.
Judge Determines Law. Pen. Code, §§ 1124, 1126; People v. Como (2002) 95 Cal.App.4th 1088, 1091 [115 Cal.Rptr.2d 922]; see People v. Williams (2001) 25 Cal.4th 441, 455 [106 Cal.Rptr.2d 295, 21 P.3d 1209].
Jury to Decide the Facts. Pen. Code, § 1127.
Attorney's Comments Are Not Evidence. People v. Stuart (1959) 168 Cal.App.2d 57, 60-61 [335 P.2d 189].
Consider All Instructions Together. People v. Osband (1996) 13 Cal.4th 622, 679 [55 Cal.Rptr.2d 26, 919 P.2d 640]; People v. Rivers
(1993) 20 Cal.App.4th 1040, 1046 [25 Cal.Rptr.2d 602]; People v. Shaw (1965) 237 Cal.App.2d 606, 623 [47 Cal.Rptr. 96].
Do Not Consider Punishment. People v. Nichols (1997) 54 Cal.App.4th 21, 24 [62 Cal.Rptr.2d 433].
Follow Applicable Instructions. People v. Palmer (1946) 76 Cal.App.2d 679, 686-687 [173 P.2d 680].
No Bias, Sympathy, or Prejudice. People v. Hawthorne (1992) 4 Cal.4th 43, 73 [14 Cal.Rptr.2d 133, 841 P.2d 118].
5 Witkin & Epstein, California Criminal Law (3d ed. 2000), §§ 643, 644.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 80, Defendant's Trial Rights, § 80.05, Ch. 83, Evidence, § 83.02, Ch. 85, Submission to Jury and Verdict, §§ 85.02, [c], 85.03, 85.05,  (Matthew Bender).
It is error to instruct the jury to immediately advise the court if a juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty, punishment, or any other improper basis. (People v. Engelman (2002) 28 Cal.4th 436, 449 [121 Cal.Rptr.2d 862, 49 P.3d 209].)
(New January 2006)