In the September 2020 revisions to the Bench Notes for CC 766 and CC 767 deleted the following optional sentence: “In making your decision about penalty, you must assume that the penalty you impose, death or life without the possibility of parole, will be carried out.” This sentence, which is based on the holding in People v. Kipp (1988) 18 Cal.4th 349, 378–379 contradicts People v. Letner and Tobin (2010) 50 Cal.4th 99, 203–206, which disapproved instructing the jury to assume that whatever sentence it chooses will be carried out. The committee deleted the sentence as well as the reference to Kipp in the bench notes. The committee also modified the title of No. 767 and the bench notes to clarify that No. 767 (which is based on the language in Letner and Tobin) should be given upon request, and not only in response to a jury question.
In so doing the committee rejected public comments which argued that the above revisions ” revisions fail to underscore for the trial courts and parties in capital cases the discussion in Caldwell v. Mississippi (1985) 472 U.S. 320, 328-29, that it is “…constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.”
The committee acknowledged an “apparent tension” between Letner/Tobin and Caldwell but nevertheless declined to include any reference to this constitutional issue in the Bench Notes:
The committee disagrees with this comment. CALCRIM No. 767 incorporates the holding of Letner and Tobin and is in accordance with subsequent case law. Concerns about any apparent tension with Caldwell must be decided by the courts, not by this committee. Further, the proposed deletion in No. 766 would not prevent a court from giving a Kipp instruction upon a defendant’s request.
The full text of the public comments which cogently demonstrate the Caldwell problem which the CALCRIM committee ignored are set forth here: