SERIES 200 POST-TRIAL: INTRODUCTORY
F 200.2 Duty Of Jurors
F 200.3 Do Not Let Bias, Etc. Influence You
F 200.4 No Consideration Of Punishment
F 200.5 Duty To Follow The Law
F 200.6 Consider Instructions Together; Repeated Instructions
F 200.7 Definition Of Words Or Phrases
F 200.8 Some Instructions May Not Apply
TABLE OF CONTENTS
F 200.2 Duty Of Jurors
F 200.2 Inst 1 Improper To Require Jurors To “Decide What Happened”
F 200.3 Do Not Let Bias, Etc. Influence You
F 200.3 Inst 1 Jury Not To Be Influenced By Conjecture
F 200.4 No Consideration Of Punishment
F 200.4 Inst 1 (a & b) Error To Imply That Jury Must “Reach A Decision”
F 200.5 Duty To Follow The Law
F 200.5 Inst 1 No Consideration Of Punishment—Each Juror Has Duty To Follow The Law
F 200.5 Inst 2 Counsel’s Argument That A Specific Rule Is Included In A General Instruction
F 200.5 Inst 3 Counsel’s Argument That Jury Should Utilize Common Dictionary Meaning Of A Term
F 200.6 Consider Instructions Together; Repeated Instructions
F 200.6 Inst 1 (a-f) Supplemental Instructions Have No Undue Importance
F 200.7 Definition Of Words Or Phrases
F 200.8 Some Instructions May Not Apply
F 200.8 Inst 1 Some Instructions Do Not Apply: Jurors Not Required To Make “Findings” About “What The Facts Are”
F 200 Note 1 Duties Of Judge/Jury: Jury Nullification
Return to Series 200 Table of Contents.
F 200.2 Duty Of Jurors
F 200.2 Inst 1 Improper To Require Jurors To “Decide What Happened”
*Modify CC 200, paragraph 2 as follows [added language is underlined; deleted language is stricken]:
Alternative a:
You must decide, if you can, what the facts are if the prosecution has proven the defendant guilty beyond a reasonable doubt. It is up to you, exclusively, to decide what happened, You must do so based only on the evidence that has been presented to you in this trial.
Alternative b:
You must decide what the facts are. It is up to you, exclusively, to decide what happened, if the prosecution has proven the defendant guilty beyond a reasonable doubt based only on the evidence that has been presented to you in this trial.
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 200.3 Do Not Let Bias, Etc. Influence You
F 200.3 Inst 1 Jury Not To Be Influenced By Conjecture
*Add to CC 200, paragraph 3, [added language is underlined; deleted language is stricken]:
Do not let You must not let conjecture, bias, sympathy, prejudice, or public opinion influence your decision.
Points and Authorities
Any inference of fact may not be based on mere conjecture or speculation. (See U.S. v. Ramirez-Rodriguez (9th Cir. 1977) 552 F2d 883, 884 citing Turner v. U.S. (1970) 396 US 398 [90 SCt 642; 24 LEd2d 610].) “If there is nothing more tangible to proceed upon than two or more equally reasonable inferences from a set of facts, and … under only one of the inferences would the defendant be liable, a jury will not be allowed to resort to conjecture to determine the facts. [Citations.]” (Olympia Oyster Co. v. Rayonier, Inc. (W.D. Wash. 1964) 229 FSupp 855, 861; People v. Morris (1988) 46 C3d 1, 21; CALJIC 2.01; CALCRIM 224.) In other words, circumstantial evidence is “subject to the rule that if the conclusion reached from the facts in the chain of circumstances is equally consonant with the issues to be proven and with some other theory or theories inconsistent therewith, it becomes mere conjecture, and the rule of the burden of proof is not satisfied. [Citations.]” (Fegles Constr. Co. v. McLaughlin Constr. Co. (9th Cir. 1953) 205 F2d 637, 639; see also U.S. v. Glenn (2nd Cir. 2002) 312 F3d 58; U.S. v. Lopez (5th Cir. 1996) 74 F3d 575, 577; U.S. v. Andujar (1st Cir. 1995) 49 F3d 16, 20; U.S. v. Menesses (5th Cir. 1992) 962 F2d 420, 426; U.S. v. Wright (8th Cir. 1987) 835 F2d 1245, 1249; Cosby v. Jones (11th Cir. 1982) 682 F2d 1373, 1383; Holland v. U.S. (1954) 348 US 121 [99 LEd 150; 75 SCt 127].)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 1.00o.
F 200.4 No Consideration Of Punishment
F 200.4 Inst 1 (a and b) Error To Imply That Jury Must AReach A Decision”
Alternative a:
*Modify CC 200, paragraph 4 as follows [added language is underlined; deleted language is stricken]:
You must reach your verdict deliberate without any consideration of punishment.
Alternative b:
*Replace CC 200, paragraph 4 with:
You must not consider punishment while deliberating and attempting to reach a verdict.
Points and Authorities
It is improper for the judge to imply that the jurors must reach a decision. (See FORECITE F 100.7 Inst 1.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
F 200.5 Duty To Follow The Law
F 200.5 Inst 1 No Consideration Of Punishment — Each Juror Has Duty To Follow The Law
*Modify CC 200, paragraph 5, as follows [added language is underlined]:
Each of you must reach your verdict without any consideration of punishment.
Points and Authorities
See FORECITE F 100.7 Inst 2.
See also FORECITE F 200.5 et al. for additional critiques of this instruction.
F 200.5 Inst 2 Counsel’s Argument That A Specific Rule Is Included In A General Instruction
*Add to CC 200:
Alternative a:
I have ruled that certain specific explanations of the law governing this case may be stated to you by argument of counsel rather than by a formal instruction from me. Therefore, you are to abide by any statement of law made by counsel unless such statement conflicts with my instructions. Before deciding to reject a statement of counsel regarding the law as conflicting with my instructions you must first send out a note requesting clarification.
Alternative b:
If counsel argues that a legal rule is included in one of the instructions, you must accept and abide by counsel’s argument as a correct statement of the law unless I sustain an objection to counsel’s argument on that point. Thus, even if there is no specific instruction on the rule argued by counsel, you must treat it as the equivalent of an instruction to be considered and followed, if applicable, along with all the other instructions.
Alternative c:
If counsel argues that a legal rule is included in one of the instructions, you must accept and abide by counsel’s argument as a correct statement of the law unless it conflicts with my instructions. Thus, even if there is no specific instruction on the rule argued by counsel, you must treat it as the equivalent of an instruction to be considered and followed, if applicable, along with all the other instructions.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Need For Clarification Of CALCRIM 200—CALCRIM 200, paragraph 5, states:
“If you believe that the attorney’s comments on the law conflict with my instructions, you must follow my instructions.”
Because this rule can be a crucial factor in the juror’s understanding of the applicable law, it should be more plainly and specifically explained for the reasons set forth below.
Often a specific instruction is refused not because it is incorrect but because it is considered to be included in other more general instructions and/or is a matter which may be covered in argument. For example, the California Supreme Court has held that lingering doubt is encompassed within the general “Factor k” mitigation instruction. (See People v. Musselwhite (1998) 17 C4th 1216.) In such situations the court assumes that the jury will glean the specific principle from the more general instruction. (Id. at 1272-73.) Hence, when the instructions rely on the jurors making a specific assumption from a general principle, counsel should be permitted to inform the jury about this assumption and have the jury instructed to accept counsel’s argument on this point as a correct statement of the law. Such an instruction is necessary because:
1. Jurors are judges of the facts, not the law (see e.g. CC 200, paragraph 2 and paragraph 5, sentence 1, it is appropriate for the jury to determine whether or not a particular argument by counsel conflicts with the law as stated in the instructions.
2. In reality jurors often have difficulty understanding the instructions and thus there is a real danger that they will not glean the correct specific legal rule from the general instructions. (See FORECITE PG II(K).) Empirical studies have recognized that jurors may not adequately comprehend the jury instructions. (Ibid.)
3. To the extent that the specific principle reflects a defense theory, there is a state and federal due process right to affirmative instruction on the theory. (5th and 14th Amendments; see also People v. Saille (1991) 54 C3d 1103, 1120; People v. Wharton (1991) 53 C3d 522, 570-72; People v. Wright (1988) 45 C3d 1126, 1141-43; U.S. v. Sotelo-Murillo (9th Cir. 1989) 887 F2d 176, 178-79; U.S. v. Lesina (9th Cir. 1987) 833 F2d 156, 159-60; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201.) If the court has denied specific instruction on a defense theory, the defendant should still have the right to argue this theory to the jury. (See e.g., People v. Ward (2005) 36 C4th 186, 220 [defense counsel may quote lingering doubt language in argument in lieu of specific instruction language].)
4. It is established that counsel may recite legal rules during argument when appropriate. (See People v. Sudduth (1966) 65 C2d 543, 548 [in court’s discretion counsel may incorporate correct statements of the law into argument]; People v. Anderson (1872) 44 C 65, 70-71; In re Wagner (1981) 119 CA3d 90, 113-14 and Witkin cited therein; People v. Travis (1954) 129 CA2d 29, 36-39; see also Annotation, Counsel’s right in criminal case to argue law or to read books to the jury, 67 ALR 2d 245 and Later Case Service.)
(See also FORECITE PG VI(C)(10).)
5. There is no sound basis for precluding the jury from accepting and following specific principles of law raised by counsel which are correct statements of the law. (See e.g. Middleton v. McNeil (2004) 541 US 433, 438 [158 LEd2d 701; 124 SCt 1830] [argument may clarify ambiguous instructions]; People v. Yeoman (2003) 31 C4th 93, 153 [court concludes that jury considered specific mitigating evidence because counsel told the jury “without contradiction” that the evidence was relevant]; see also Griffin v. United States (1991) 502 US 46, 59 [116 LEd2d 371; 112 SCt 466] [“[j]urors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law….”].)
In sum, counsel’s argument has a proper role in guiding jurors as to legal principles not included in the court’s instructions. Hence, fundamental notions of fair trial by jury and due process require that the defendant be allowed to assure that the jury understands any correct definition of material terms which may have a bearing on its verdict. If counsel is precluded from conveying this principle by specific instruction, then the jury should be informed to accept and follow counsel’s recitation of the definition during argument.
Need To Assure That Jurors Do Not Incorrectly Or Arbitrarily Fail To Consider Proper Argument Of Counsel—As discussed above, counsel’s arguments play a critical role in assuring juror understanding of the law upon which specific jury instruction are not given. Accordingly, the jurors should not be allowed to arbitrarily disregard arguments of counsel regarding such matters. Two possibilities for accomplishing this are to (1) only allow the jurors to disregard arguments about the law if an objection to the argument is sustained or (2) requiring the jurors to request clarification of the apparent conflict before rejecting counsel’s argument.
[Alternatively, see Strategy Note, below.]
Identification Of Parties —See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CAVEAT: This instruction is intended to address the situation where a defense requested instruction on a specific point has been rejected on the basis that the point is included in another more general instruction. In such situation counsel should be permitted to argue the point, but the jury may not give such argument the same stature as an instruction from the court. The above instruction is intended to address this concern although, if it is rejected, CALCRIM 200 (Paragraph 5) says the same thing by implication.
This instruction should be carefully evaluated because it may allow the jury to consider other statements in argument from either side in the same fashion. Caution should be used to object to or preclude argument on any misstatements of the law by the prosecutor and/or co-counsel.
STRATEGY NOTE—Strategy For Using Argument To Promote Juror Understanding Of Points Which May Not Be Clear From The Instructions. Often specific clarifying or explanatory instructions are refused in reliance upon a judicial assumption that the jurors will correctly glean the specific point from the general instructional language. Not untypically, the judge will refuse the instruction saying it is a matter for argument. However, the problem is that CC 200, paragraph 5 and CC 761, paragraph 4 make the jurors the final arbiters of what the instruction really means. This could be devastating if counsel is relying on argument as a substitute for instruction. One option for dealing with this problem is Alternative Instructions a and b, above. However, in lieu of such instructions, a workable alternative strategy might include any or all of the following:
A. Educate The Jurors On Voir Dire. A juror’s qualification to serve depends on this or her ability to follow the judge’s instructions. Thus, the juror’s accurate understanding of the instructions is a prerequisite to adequate voir dire of the juror. (See e.g., People v. Farnam (2002) 28 C4th 107, 191 [no error in giving instruction since it addressed a misconception about the effect of a LWOP sentence expressed by some jurors given during voir dire]; People v. Welch (1999) 20 C4th 701, 765-66 [defense may be entitled to instruction precluding consideration of “deterrent effect” of penalty verdict if showing of necessity is made (e.g., juror comments during voir dire)]; People v. Ochoa (2001) 26 C4th 398, 455-56 [instruction appropriate if necessary (e.g., juror comments during voir dire)].) This, in turn, opens the door to request clarification of any instruction which may be unclear or ambiguous. (See e.g., Morgan v. Illinois (1992) 504 US 719, 735-36 [119 LEd2d 492; 112 SCt 2222] [defendant must be permitted voir dire to determine if juror can follow the law]; see also Wainwright v. Witt (1985) 469 US 412 [83 LEd2d 841; 105 SCt 844].)
Not only will this give the jurors a “heads up” regarding the ambiguity of the instruction but should also set up closing argument reminding the jurors about the voir dire explanation. This combination of voir dire and closing argument should also limit the danger that the jurors will reject counsel’s explanation of the instruction. (See B & C, below.)
CAVEAT: As a general matter voir dire is not an adequate substitute for instruction at the end of the case. (See People v. Crawford (1997) 58 CA4th 815; People v. Elguera (1992) 8 CA4th 1214; People v. Vann (1974) 12 C3d 220; see also FORECITE F 0.25 n1.)
B. In Closing Argument Ask That Any Juror Believing That Counsel’s Argument Conflicts With The Instructions To Send Out A Note Requesting Clarification. In lieu of Instruction Alternative a, above, counsel may make the same point in the form of argument.
C. Argue That Unless The Prosecutor Objects Defense Counsel’s Explanation Of The Instruction Should Be Followed. In lieu of Instruction Alternative b, above, the same point can be made in the form of argument.
F 200.5 Inst 3 Counsel’s Argument That Jury Should Utilize Common Dictionary Meaning Of A Term
*Add to CC 200:
If counsel provides you with a definition of a term used in these instructions, you may rely on that definition unless it conflicts with the instructions or I sustain an objection to counsel’s definition.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Need For Instruction—There is generally no sua sponte duty to instruct the jury on the meaning of terms in common usage which are presumed to be within the understanding of persons of ordinary intelligence. (People v. Ordonez (1991) 226 CA3d 1207, 1229-30; compare People v. Pitmon (1985) 170 CA3d 38, 52 [sua sponte duty to define technical legal terms].)
However, when the definition of a common term is requested by the defense in light of a theory of the defense, the definition should be given. To the extent that the specific principle reflects a defense theory there is a state and federal right to affirmative instruction on the theory. (5th, 6th and 14th Amendments [due process, compulsory process, trial by jury]; see also People v. Saille (1991) 54 C3d 1103, 1120; People v. Wharton (1991) 53 C3d 522, 570-72; People v. Wright (1988) 45 C3d 1126, 1141-43; U.S. v. Sotelo-Murillo (9th Cir. 1989) 887 F2d 176, 178-79; U.S. v. Lesina (9th Cir. 1987) 833 F2d 156, 159-60; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201; see also FORECITE PG III(A).) If the court has denied specific instruction on a defense theory, the defendant should still have the right to argue this theory to the jury.
On the other hand, if such instruction is refused, counsel should be permitted to read the common dictionary definition to the jury during argument and have the jury instructed to abide by that definition. Such an instruction is necessary because jurors are not “walking dictionaries.” (See FORECITE F 101.5 Inst 1.)
In reality, jurors often have difficulty understanding the instructions, and thus, notwithstanding the presumption that the jurors will correctly understand, there is a real danger that they will not. (See e.g., People v. Dunkle (2005) 36 C4th 861, 895 [even counsel couldn’t agree on a dictionary definition]; see also FORECITE PG II(K).) Empirical studies have recognized that jurors may not adequately comprehend the jury instructions. (Ibid.)
Moreover, it is established that counsel may recite legal rules during argument when appropriate. (See FORECITE F 200.5 Inst 2.)
(See also FORECITE PG VI(C)(10).)
Hence, there is no sound basis for precluding counsel from providing the jury with a definition which is proper and presumed to be within its understanding. (See FORECITE F 200.5 Inst 2.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CAVEAT: This instruction is intended to address the situation where a defense-requested instruction on a definition has been rejected on the basis that the definition is presumed to be within the common understanding of the jurors. In such situation, counsel should be permitted to argue the point, but the jury may not give such argument the same stature as an instruction from the court. The above instruction is intended to address this concern although, if it is rejected, CALCRIM 200 (Paragraph 5) says the same thing by implication.
Such an instruction should be carefully evaluated because it may allow the jury to consider other definitions in argument from either side in the same fashion. Hence, counsel will have to be especially vigilant to object to mis-statements by the prosecutor and/or co-counsel during argument. (See Payton v. Woodford (9th Cir. 2003) 346 F3d 1204, 1214-15 [relief granted because, inter alia, defense counsel objected to prosecutor’s legal mis-statements].)
CALJIC NOTE: See FORECITE F 1.00n.
F 200.6 Consider Instructions Together; Repeated Instructions
F 200.6 Inst 1 (a-f) Supplemental Instructions Have No Undue Importance
*Add to CC 200, paragraph 6:
Alternative a:
Similarly, if I give a supplemental instruction after deliberations have begun, do not conclude that such instruction is any more important than any other instruction.
Alternative b:
Keep in mind that you should consider what I have just said together with all the other instructions that I gave you earlier. All these instructions are important, and you should consider them together as a whole.
[Source: 6th Circuit Pattern Jury Instructions – Criminal 9.01 [Supplemental Instructions in Response to Juror Questions] & 3 1991).]
Alternative c:
In response to your [question] [request] I will repeat an instruction previously given. By repeating it, I do not emphasize it over any other instruction. If any juror or group of jurors is still unclear or uncertain about the instruction, that juror or jurors should let me know by a written note.
[Cf. Ohio Jury Instructions, Volume 4 – Criminal, OJI 415.10 [Additional Instructions On Matters Of Law] (Anderson, 2000).]
Alternative d:
Do not place undue emphasis on this supplemental instruction. This instruction must be carefully considered along with all other instructions previously given in light of and in harmony with the all the instructions.
[See Leach v. State (TN 1977) 552 SW2d 407; Cf. Tennessee Pattern Instructions – Criminal, T.P.I.-Crim 43.13 [Supplement Instruction No.] (West, 5th ed. 2000).]
Alternative e:
This instruction must be considered together with all of the other instructions previously given. Consider all of the instructions as a whole.
[Cf. Washington Pattern Jury Instructions – Criminal, WPIC 3.02 [Multiple Defendants-Single Count] (West, 2nd ed. 1994); O’Malley, Grenig & Lee, Federal Jury Practice and Instructions 20.07 [Response to Inquiry from Deliberating Jury] p. 952 (West, 5th ed. 2000).]
Alternative f:
At this point [following your request], I will give [an] additional instruction[s]. By giving [it] [them] at this time I do not mean to emphasize [it] [them] over any other instruction[s]. You shall consider [this] [these] instruction[s] together with all the other instructions already given. With this admonition, I will give you this additional law as part of the general instructions of the court. The instruction reads:
(Text of new instruction. Include the following paragraph as part of the new instruction:)
Do not place any undue importance on the fact that [this instruction has] [these instructions have] been given separately. [It] [They] have no greater or lesser importance than any other instructions previously given. [It] [They] must be considered together with all of the instructions
[Cf. Washington Pattern Jury Instructions – Criminal, WPIC 4.68 [Additional Instructions Of Law] (West, 2nd ed. 1994).]
Points and Authorities
Jurors will have a natural tendency to place more emphasis on supplemental instructions which are individually given in response to inquiry during deliberations. After delivering supplemental instructions, the court should admonish the jury not to give the additional instructions any more significance than the other instructions which were previously delivered to the jury. (See Davis v. Erickson (1960) 53 C2d 860, 863-64; see also United States v. Meadows (5th Cir. 1979) 598 F2d 984, 990.) “In giving additional instructions to a jury—particularly in response to inquiries from the jury—the court should be especially careful not to give an unbalanced charge. If the judge chooses to give any additional charge and elects not to repeat the entire original charge, he should remind the jury of the burden and quantum of proof and presumption of innocence and remind them that all instructions must be considered as a whole or take other appropriate steps to avoid any possibility of prejudice to the defendant.” (U.S. v. Sutherland (5th Cir. 1970) 428 F2d 1152, 1157.) “The trial judge ‘may also order other testimony read or give other instructions, so as not to give undue prominence to the particular testimony or instructions requested.’ [Footnote omitted.]” (Wharton’s Criminal Procedure (West, 13th Ed. 1989) §486, p. 148.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
FORECITE CG 10.3 [Comment, Argument Or Undue Emphasis]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CAVEAT: There may be an issue as to whether and how to provide jurors with written copies of the supplemental instructions. There are a number of concerns about written instructions in general. (See generally FORECITE PG V(G) [Written Instructions To Jury].) Additionally, supplemental instructions present special problems because providing a supplemental instruction in writing may give it undue influence. (See FORECITE PG V(G)(6) [Supplemental Instructions Should Be Given Orally].)
F 200.7 Definition Of Words Or Phrases
See FORECITE F 101.9.
F 200.8 Some Instructions May Not Apply
F 200.8 Inst 1 Some Instructions Do Not Apply: Jurors Not Required To Make “Findings” About “What The Facts Are”
*Modify CC 200, paragraph 8 as follows [added language is underlined; deleted language is stricken]:
Some of these instructions may not apply, depending on your findings about the facts of the case. [Do not assume just because I give a particular instruction that I am suggesting anything about the facts.] After you have decided what the facts are, You must only follow the instructions that do apply to the facts as you find them
Points and Authorities
See FORECITE F 100.1 Inst 5.
F 200 Note 1 Duties Of Judge/Jury: Jury Nullification
The trial court is not required to advise the jury of its power to nullify a verdict even if it so requests. (See People v. Williams (2001) 25 C4th 441, 457.) However, it is better for the court to re-read CJ 1.00 (now CALCRIM 200) than to simply respond in the negative to the jury’s inquiry regarding nullification. (People v. Fernandez (1994) 26 CA4th 710, 713, fn 2.)
(See also FORECITE PG X(N).)
CALJIC NOTE: See FORECITE F 1.00 n4.