CALCRIM No. 761. Death Penalty: Duty of Jury

Judicial Council of California Criminal Jury Instructions (2023 edition)

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761.Death Penalty: Duty of Jury
I will now instruct you on the law that applies to this [phase of the] 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 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.]
You must decide whether (the/each) defendant will be sentenced to death
or life in prison without the possibility of parole. It is up to you and you
alone to decide what the penalty will be. [In reaching your decision,
consider all of the evidence from the entire trial [unless I specifically
instruct you not to consider something from an earlier phase].] Do not
allow bias, prejudice, or public opinion to influence your opinion in any
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
apply to the facts as you find them.
New January 2006; Revised March 2023
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
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].)
The court should give the bracketed portion of the last paragraph that begins with
“Do not assume just because,” unless the court will be commenting on the evidence
pursuant to Penal Code section 1127. The committee recommends against any
comment on the evidence in the penalty phase of a capital case.
This instruction should be followed by any other general instructions on evidence or
principles of law the court deems appropriate based on the facts of the case.
The court has a sua sponte duty to give CALCRIM No. 222, Evidence and
CALCRIM No. 226, Witnesses. (See People v. Miranda (1987) 44 Cal.3d 57,
107-108 [241 Cal.Rptr. 594, 744 P.2d 1127].)
The court has a sua sponte duty to give CALCRIM No. 221, Reasonable
Doubt: Bifurcated Trial, if the prosecution offers aggravating evidence of other
criminal conduct or other felony convictions. However, the reasonable doubt
standard does not apply to the question of whether the jury should impose the
death penalty or to proof of other aggravating factors. (People v. Miranda, supra,
44 Cal.3d at p. 107; People v. Rodriguez (1986) 42 Cal.3d 730, 777-779 [230
Cal.Rptr. 667, 726 P.2d 113].)
If the prosecution relies on circumstantial evidence to prove other criminal
conduct, the court has a sua sponte duty to instruct on circumstantial evidence
in the penalty phase. (See People v. Brown (2003) 31 Cal.4th 518, 564 [3
Cal.Rptr.3d 145, 73 P.3d 1137] [no error where prosecution relied exclusively on
direct evidence].)
When requested, the court must give instructions admonishing the jury not to
consider the defendant’s failure to testify during the penalty phase. (People v.
Melton (1988) 44 Cal.3d 713, 757-758 [244 Cal.Rptr. 867, 750 P.2d 741].)
Death Penalty Statute. Pen. Code, § 190.3.
Must Tell Jury Which Instructions Apply. People v. Babbitt, supra, 45 Cal.3d at
p. 718, fn. 26.
Should Give Jury New Set of Instructions. People v. Weaver, supra, 26 Cal.4th at
p. 982.
Error to Instruct Not to Consider Sympathy. 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].
Reasonable Doubt. People v. Miranda, supra, 44 Cal.3d at p. 107; People v.
Rodriguez, supra, 42 Cal.3d at pp. 777-779.
Circumstantial Evidence. People v. Brown, supra, 31 Cal.4th at p. 564.
Defendant’s Failure to Testify. People v. Melton, supra, 44 Cal.3d at pp.
This Instruction Upheld. People v. Tran (2022) 13 Cal.5th 1169, 1220-1221 [298
Cal.Rptr.3d 150, 515 P.3d 1210].
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 549.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.24 (Matthew Bender).
762. Reserved for Future Use

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