This instruction was added on April 23, 2010, at the recommendation of the CC Committee. The Committee noted that “Because it is so easy to make a mistake in instructing on this issue, the committee agreed that it was important to provide a carefully crafted instruction for courts to use.” (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of April 23, 2010, p. 3.)

The April, 2011, revision of CC 767 was prompted by the California Supreme Court’s opinion in People v. Letner and Tobin. As explained by the Advisory Committee on Criminal Jury Instructions, “A recent Supreme Court case, People v. Letner and Tobin (2010) 50 Cal. 4th 99, 204-207, changed the law on responding to juror inquiries about commutation of sentence in death penalty cases by disfavoring admonitions that jurors should assume that whatever sentence they choose will be carried out. The Letner and Tobin opinion providently provided suggested language for implementing the change. Accordingly, the committee revised [CC No. 767], Response to Juror Inquiry About Commutation of Sentence in Death Penalty Case, by following the Supreme Court’s helpful suggestion.” (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of April 29, 2011, pp. 3-4.)

If the trial court instructs the jury to disregard all instructions given at the guilt phase, it must give those instructions which are applicable to the evaluation of the evidence at the penalty phase. Failure to give the required instructions will be reviewed under the harmless beyond a reasonable doubt standard. (People v. Lewis (2008) 43 Cal. 4th 415, 534-535.)