California Criminal Jury Instructions (CALCRIM) (2017)
775. Death Penalty: Mental RetardationDownload PDF
775.Death Penalty: Mental Retardation (Pen. Code, § 1376)
I will now instruct you on the law that applies to this [phase of the]
[You must disregard all the instructions I gave you earlier and decide
this phase of the trial applying only the instructions that I am giving
you now. 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 defendant is mentally retarded.
In order to establish that (he/she) is mentally retarded, the defendant
must prove by a preponderance of the evidence that:
1. (His/Her) general intellectual functioning is signiﬁcantly below
2. (He/She) also has deﬁcits in two or more areas of adaptive
3. These conditions were observable before the defendant reached
the age of 18 years.
Adaptive behavior is the set of learned skills that people generally need
to function in their everyday lives. Those skill areas include
communication, self-care, home-living, social/interpersonal skills, use of
community resources, self-direction, functional academic skills, work,
leisure, health and safety.
Proof by a preponderance of the evidence is a different standard than
proof beyond a reasonable doubt. To meet the burden of proof by a
preponderance of the evidence, the defendant must prove that it is more
likely than not that (he/she) is mentally retarded. If the defendant has
not met this burden, you must ﬁnd that (he/she) has not proved that
(he/she) is mentally retarded. In order to return a ﬁnding that the
defendant is or is not mentally retarded, you must all agree on that
New January 2006
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].) In the context
of penalty phase instructions, the Supreme Court has stated that the trial 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].) In order to avoid
confusion, the Supreme Court has indicated that the preferable practice is for the
court to provide the jury with a completely new set of instructions. (People v.
Weaver, supra, 26 Cal.4th at p. 982.) The committee recommends this approach in
the mental retardation phase as well.
When the defendant in a capital trial raises the issue of mental retardation, the jury
must decide the question unless the defendant has waived a jury on the issue. (Pen.
Code, § 1376(b)(1).) The hearing on mental retardation shall be conducted after the
guilt phase and prior to the penalty phase. (Ibid.) If the defendant has entered a
plea of not guilty by insanity, the hearing on mental retardation shall be conducted
after the sanity phase. (Pen. Code, § 1376(e).) The defense bears the burden of
proving mental retardation by a preponderance of the evidence. (Pen. Code,
The court must also give any necessary instructions on witnesses and evidence,
such as CALCRIM No. 222, Evidence, CALCRIM No. 226, Witnesses, and
CALCRIM No. 332, Expert Witness. The court must conclude with CALCRIM No.
3550, Pre-Deliberation Instructions.
• Hearing on Mental Retardation in Death Penalty Case. Pen. Code, § 1376.
•Execution of Mentally Retarded Unconstitutional. Atkins v. Virginia (2002)
536 U.S. 304, 319–321 [122 S.Ct. 2242, 153 L.Ed.2d 335].
• Mental Retardation Deﬁned. Pen. Code, § 1376(a); In re Hawthorne (2005) 35
Cal.4th 40, 47–49 [24 Cal.Rptr.3d 189, 105 P.3d 552]; American Association on
Mental Retardation, http://www.aamr.org/Policies/faq_mental_retardation.shtml
(accessed August 16, 2006 [case sensitive]).
• Should Give Jury New Set of Instructions (Penalty Phase). 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
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty,§§ 87.16, 87.17, 87.18 (Matthew Bender).
Scope of Expert Testing
When the defendant places at issue the question of whether he or she is mentally
retarded, the defendant must submit to examination by a prosecution expert.
(Centeno v. Superior Court (2004) 117 Cal.App.4th 30, 40 [11 Cal.Rptr.3d 533].)
CALCRIM No. 775 HOMICIDE
“However, those examinations are permissible only to the extent they are
reasonably related to the determination of the existence of the mental condition
raised . . . . [On] a defense objection to speciﬁc proposed prosecution tests, the
trial court must make a threshold determination that the tests bear some reasonable
relation to measuring mental retardation, including factors that might confound or
explain the testing, such as malingering . . . . The trial court must prohibit any
tests it concludes are not reasonably related to determining mental retardation.” (Id.
at p. 45.)
776–799. Reserved for Future Use
HOMICIDE CALCRIM No. 775