CALCRIM No. 775. Death Penalty: Intellectual Disability (Pen. Code, § 1376)
Judicial Council of California Criminal Jury Instructions (2023 edition)
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775.Death Penalty: Intellectual Disability (Pen. Code, § 1376)
I will now instruct you on the law that applies to this [phase of the] case.
[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 intellectually disabled.
In order to establish that (he/she) is intellectually disabled, the defendant
must prove by a preponderance of the evidence that:
1. (His/Her) general intellectual functioning is significantly below
average;
2. (He/She) also has deficits in two or more areas of adaptive
behavior;
AND
3. These conditions were observable before the defendant reached
the end of the developmental period.
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 intellectually disabled. If the defendant
has not met this burden, you must find that (he/she) has not proved that
(he/she) is intellectually disabled. In order to return a finding that the
defendant is or is not intellectually disabled, you must all agree on that
finding.
New January 2006; Revised October 2021
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].) In the context
of penalty phase instructions, the Supreme Court has stated that the trial court must
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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 intellectual
disability phase as well.
When the defendant in a capital trial raises the issue of intellectual disability, the
jury must decide the question unless the defendant has waived a jury on the issue.
(Pen. Code, § 1376(b)(1).) The hearing on intellectual disability 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 intellectual disability shall be
conducted after the sanity phase. (Pen. Code, § 1376(e).) The defense bears the
burden of proving intellectual disability by a preponderance of the evidence. (Pen.
Code, § 1376(b)(2).)
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.
AUTHORITY
• Hearing on Intellectual Disability in Death Penalty Case. Pen. Code, § 1376.
• Execution of Intellectually Disabled Unconstitutional. Atkins v. Virginia (2002)
536 U.S. 304, 319-321 [122 S.Ct. 2242, 153 L.Ed.2d 335].
• Intellectual Disability Defined. Pen. Code, § 1376(a).
• Weight of IQ Tests in Assessing Intellectual Disability. Hall v. Florida (2014)
572 U.S. 701, 722-723 [134 S.Ct. 1986, 188 L.Ed.2d 1007]; In re Hawthorne
(2005) 35 Cal.4th 40, 48-49 [24 Cal.Rptr.3d 189, 105 P.3d 552].
• 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 828].
RELATED ISSUES
Scope of Expert Testing
When the defendant places at issue the question of whether he or she is
intellectually disabled, 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].) “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
HOMICIDE CALCRIM No. 775
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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.)
SECONDARY SOURCES
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.16, 87.17, 87.18 (Matthew Bender).
776-799 Reserved for Future Use
CALCRIM No. 775 HOMICIDE
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© Judicial Council of California.
