CALCRIM No. 768. Penalty Trial: Pre-Deliberation Instructions

Judicial Council of California Criminal Jury Instructions (2023 edition)

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768.Penalty Trial: Pre-Deliberation Instructions
When you go to the jury room, the first thing you should do is (choose a
foreperson/decide whether to retain the same foreperson). The
foreperson should see to it that your discussions are carried on in an
organized way and that everyone has a fair chance to be heard. Please
treat one another courteously.
It is your duty to talk with one another and to deliberate in the jury
room in order to agree on a penalty if you can. Each of you must decide
the penalty for yourself, but only after you have discussed the evidence
with the other jurors. Do not hesitate to change your mind if you
become convinced that you are wrong. But do not change your mind just
because other jurors disagree with you.
Keep an open mind and openly exchange your thoughts and ideas about
this case. Stating your opinions too strongly at the beginning or
immediately announcing how you plan to vote may interfere with an
open discussion.
Do not talk about the case or about any of the people or any subject
involved in it with anyone, including, but not limited to, your spouse or
other family, or friends, spiritual leaders or advisors, or therapists. You
must discuss the case only in the jury room and only when all jurors are
present. Do not discuss your deliberations with anyone. Do not
communicate using: <insert currently popular social media>
during your deliberations.
It is very important that you not use the Internet (, a dictionary/[, or
<insert other relevant source of information>]) in any way in
connection with this case during your deliberations or at any time until
your jury service is completed.
[During the trial, several items were received into evidence as exhibits.
You may examine whatever exhibits you think will help you in your
deliberations. (These exhibits will be sent into the jury room with you
when you begin to deliberate./If you wish to see any exhibits, please
request them in writing.)]
If you need to communicate with me while you are deliberating, send a
note through the bailiff, signed by the foreperson or by one or more
members of the jury. To have a complete record of this trial, it is
important that you not communicate with me except by a written note.
If you have questions, I will talk with the attorneys before I answer, so it
may take some time. You should continue your deliberations while you
wait for my answer. I will answer any questions in writing or orally here
in open court.
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Do not reveal to me or anyone else any aspect of your deliberations or
how the vote stands on the question of penalty unless I ask you to do so.
Your verdict of either death or life without possibility of parole must be
unanimous. This means that, to return a verdict, all of you must agree to
it. [Do not reach a decision by the flip of a coin or by any similar act.]
<During a retrial, give the following paragraph on request to inform jury
about prior proceedings without introducing extraneous matters>
[Sometimes issues are tried in separate trials. The only issue in this trial
is the penalty.]
It is not my role to tell you what your verdict should be. [Do not take
anything I said or did during the trial as an indication of what I think
about the facts, the witnesses, or what your verdict should be.]
You will be given [a] verdict form[s]. As soon as all jurors have agreed
on a verdict, the foreperson must date and sign the [appropriate] verdict
form[s] and notify the bailiff.
New March 2021
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct that the jury’s verdict must be
unanimous. Although there is no sua sponte duty to instruct on the other topics
relating to deliberations, there is authority approving such instructions. (See People
v. Gainer (1977) 19 Cal.3d 835, 856 [139 Cal.Rptr. 861, 566 P.2d 997]; People v.
Selby (1926) 198 Cal. 426, 439 [245 P. 426]; People v. Hunt (1915) 26 Cal.App.
514, 517 [147 P. 476].)
If the court automatically sends exhibits into the jury room, give the bracketed
sentence that begins with “These exhibits will be sent into the jury room.” If not,
give the bracketed phrase that begins with “You may examine whatever exhibits you
think.”
Give the bracketed sentence that begins with “Do not take anything I said or did
during the trial” unless the court will be commenting on the evidence. (See Pen.
Code, §§ 1127, 1093(f).)
Give the bracketed paragraph that begins with “Sometimes issues are tried in
separate trials” if requested. (People v. Hicks (2017) 4 Cal.5th 203, 205 [226
Cal.Rptr.3d 565, 407 P.3d 409].)
AUTHORITY
• Exhibits. Pen. Code, § 1137.
• Questions. Pen. Code, § 1138.
• Verdict Forms. Pen. Code, § 1140.
CALCRIM No. 768 HOMICIDE
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• Unanimous Verdict. Cal. Const., art. I, § 16; Pen. Code, § 190.4(b); People v.
Howard (1930) 211 Cal. 322, 325 [295 P. 333]; People v. Kelso (1945) 25
Cal.2d 848, 853-854 [155 P.2d 819]; People v. Collins (1976) 17 Cal.3d 687,
692 [131 Cal.Rptr. 782, 552 P.2d 742]; People v. Anderson (2018) 5 Cal.5th 372,
425 [235 Cal.Rptr.3d 1].
• Duty to Deliberate. People v. Gainer (1977) 19 Cal.3d 835, 856 [139 Cal.Rptr.
861, 566 P.2d 997].
• Judge’s Conduct as Indication of Verdict. People v. Hunt (1915) 26 Cal.App.
514, 517 [147 P. 476].
• Keep an Open Mind. People v. Selby (1926) 198 Cal. 426, 439 [245 P. 426].
• Hung Jury. People v. Gainer (1977) 19 Cal.3d 835, 850-852 [139 Cal.Rptr. 861,
566 P.2d 997]; People v. Moore (2002) 96 Cal.App.4th 1105, 1118-1121 [117
Cal.Rptr.2d 715].
RELATED ISSUES
Admonition Not to Discuss Case with Anyone
In People v. Danks (2004) 32 Cal.4th 269, 298-300 [8 Cal.Rptr.3d 767, 82 P.3d
1249], a capital case, two jurors violated the court’s admonition not to discuss the
case with anyone by consulting with their pastors regarding the death penalty. The
Supreme Court stated:
It is troubling that during deliberations not one but two jurors had conversations
with their pastors that ultimately addressed the issue being resolved at the
penalty phase in this case. Because jurors instructed not to speak to anyone
about the case except a fellow juror during deliberations . . . . may assume such
an instruction does not apply to confidential relationships, we recommend the
jury be expressly instructed that they may not speak to anyone about the case,
except a fellow juror during deliberations, and that this includes, but is not
limited to, spouses, spiritual leaders or advisers, or therapists. Moreover, the jury
should also be instructed that if anyone, other than a fellow juror during
deliberations, tells a juror his or her view of the evidence in the case, the juror
should report that conversation immediately to the court.
(Id. at p. 306, fn. 11.)
The court may, in its discretion, add the suggested language to the fourth paragraph
of this instruction.
SECONDARY SOURCES
4 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial
§§ 726-727.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, §§ 85.02, 85.03[1], 85.05[1] (Matthew Bender).
769-774. Reserved for Future Use
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© Judicial Council of California.