CALCRIM No. 766

Y ou have sole responsibility to decide which penalty (the/each) defendant

will receive.

Y ou must consider the arguments of counsel and all the evidence

presented [during (both/all) phases of the trial] [except for the items of

evidence I specifically instructed you not to consider].

In reaching your decision, you must consider, take into account, and be

guided by the aggravating and mitigating circumstances. Each of you is

free to assign whatever moral or sympathetic value you find appropriate

to each individual factor and to all of them together. Do not simply

count the number of aggravating and mitigating factors and decide

based on the higher number alone. Consider the relative or combined

weight of the factors and evaluate them in terms of their relative

convincing force on the question of punishment.

Each of you must decide for yourself whether aggravating or mitigating

factors exist. Y ou do not all need to agree whether such factors exist. If

any juror individually concludes that a factor exists, that juror may give

the factor whatever weight he or she believes is appropriate.

Determine which penalty is appropriate and justified by considering all

the evidence and the totality of any aggravating and mitigating

circumstances. Even without mitigating circumstances, you may decide

that the aggravating circumstances are not substantial enough to

warrant death. To return a judgment of death, each of you must be

persuaded that the aggravating circumstances both outweigh the

mitigating circumstances and are also so substantial in comparison to the

mitigating circumstances that a sentence of death is appropriate and

justified.

To return a verdict of either death or life without the possibility of

parole, all 12 of you must agree on that verdict.

[Y ou must separately consider which sentence to impose on each

defendant. If you cannot agree on the sentence[s] for one [or more]

defendant[s] but you do agree on the sentence[s] for the other

defendant[s], then you must return a verdict for (the/each) defendant on

whose sentence you do agree.]

New January 2006; Revised February 2012, September 2020