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 (1988) 45 Cal.3d 660, 718, fn. 26 [248 Cal.Rptr.
69, 755 P.2d 253]; 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.
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 (1988) 45 Cal.3d
CALCRIM No. 761 HOMICIDE