CALCRIM No. 760. Death Penalty: Introduction to Penalty Phase
Judicial Council of California Criminal Jury Instructions (2023 edition)
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L. DEATH PENALTY
760.Death Penalty: Introduction to Penalty Phase
This [phase of the] trial is to determine (the/each) defendant’s penalty.
The law provides for two possible penalties: death or life in prison
without the possibility of parole. You must decide which penalty (the/
each) defendant will receive.
[You must disregard all of the instructions I gave you earlier. I will give
you a set of instructions that apply only to this phase of the trial. Some
of these instructions will be the same or similar to instructions you have
heard before. However, you must follow only this new set of instructions
in this phase of the trial.]
[The first step in this process is the opening statements.
Next, the People will offer evidence. Evidence usually includes witness
testimony and exhibits. After the People’s case, the defense (will/may)
also present evidence.
After you have heard all the evidence and [before] the attorneys have
given their final arguments, I will instruct you on the law that applies to
the case.
After you have heard the arguments and instructions, you will go to the
jury room to deliberate.]
New January 2006; Revised August 2014
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on general concepts of law. (People v.
Babbitt (1988) 45 Cal.3d 660, 718 [248 Cal.Rptr. 69, 755 P.2d 253].) Because the
introductory instructions for the guilt phase contain concepts that do not apply to the
penalty phase, the court must clarify for the jury which instructions apply to the
penalty phase. (People v. Babbitt, supra, 45 Cal.3d at p. 718, fn. 26; People v.
Weaver (2001) 26 Cal.4th 876, 982 [111 Cal.Rptr.2d 2, 29 P.3d 103], cert. den. sub
nom. Weaver v. California (2002) 535 U.S. 1058 [122 S.Ct. 1920, 152 L.Ed.2d
828].) The Supreme Court has stated that, in order to avoid confusion, the trial court
should provide the jury with a completely new set of instructions for the penalty
phase. (People v. Weaver, supra, 26 Cal.4th at p. 982.)
The court has a sua sponte duty to give the bracketed paragraph instructing the jury
to disregard all previous instructions unless the current jury did not hear the guilt
phase of the case. (See People v. Arias (1996) 13 Cal.4th 92, 171 [51 Cal.Rptr.2d
493
770, 913 P.2d 980], cert. den. sub nom. Arias v. California (1997) 520 U.S. 1251
[117 S.Ct. 2408, 138 L.Ed.2d 175].)
This instruction should be followed by any other introductory instructions the court
deems appropriate prior to the presentation of penalty phase evidence. The
committee recommends that the court give CALCRIM No. 101, Cautionary
Admonitions: Jury Conduct (Before or After Jury Is Selected). The court may also
consider giving CALCRIM No. 102, Note-Taking; CALCRIM No. 104, Evidence;
and CALCRIM No. 105, Witnesses.
When CALCRIM No. 101, Cautionary Admonitions: Jury Conduct (Before or After
Jury Is Selected), is given, the court has a sua sponte duty to delete the sentence
which reads “Do not let bias, sympathy, prejudice, or public opinion influence your
decision.” (People v. Lanphear (1984) 36 Cal.3d 163, 165 [203 Cal.Rptr. 122, 680
P.2d 1081]; California v. Brown (1987) 479 U.S. 538, 545 [107 S.Ct. 837, 93
L.Ed.2d 934].) The court should also delete the following sentence: “You must reach
your verdict without any consideration of punishment.”
If the current jury did not hear the previous phases of the case, the court should
give the bracketed paragraphs that begin with “The first step in this process.”
AUTHORITY
• Death Penalty Statute. Pen. Code, § 190.3.
• Must Tell Jury Which Instructions Apply. People v. Babbitt (1988) 45 Cal.3d
660, 718, fn. 26 [248 Cal.Rptr. 69, 755 P.2d 253].
• Should Give Jury New Set of Instructions. People v. Weaver (2001) 26 Cal.4th
876, 982 [111 Cal.Rptr.2d 2, 29 P.3d 103], cert. den. sub nom. Weaver v.
California (2002) 535 U.S. 1058 [122 S.Ct. 1920, 152 L.Ed.2d 828].
• Error to Instruct Not to Consider Sympathy. People v. Easley (1983) 34 Cal.3d
858, 876 [196 Cal.Rptr. 309, 671 P.2d 813]; People v. Lanphear (1984) 36
Cal.3d 163, 165 [203 Cal.Rptr. 122, 680 P.2d 1081]; California v. Brown (1987)
479 U.S. 538, 542 [107 S.Ct. 837, 93 L.Ed.2d 934].
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 547.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.20-87.26 (Matthew Bender).
CALCRIM No. 760 HOMICIDE
494
© Judicial Council of California.
