Section 222 | CALCRIM (Jury Instructions)

begins with “During the trial, you were told.”
If the jury requests transcripts, the court should remind the jury of the right to
request readback and to advise the court whether there is any testimony they want
read. (See People v. Triplett (2020) 48 Cal.App.5th 655, 662 [267 Cal.Rptr.3d 675].)
AUTHORITY
•
Evidence Defined. Evid. Code, § 140.
•
Arguments Not Evidence. People v. Barajas (1983) 145 Cal.App.3d 804, 809
[193 Cal.Rptr. 750].
•
Questions Not Evidence. People v. Samayoa (1997) 15 Cal.4th 795, 843–844 [64
Cal.Rptr.2d 400].
•
Stipulations. Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 141–142 [199
P.2d 952].
•
Striking Testimony. People v. Horton (1995) 11 Cal.4th 1068, 1121 [47
Cal.Rptr.2d 516, 906 P.2d 478].
RELATED ISSUES
Non-Testifying Courtroom Conduct
There is authority for an instruction informing the jury to disregard defendant’s in-
court, but non-testifying behavior. (People v. Garcia (1984) 160 Cal.App.3d 82, 90
[206 Cal.Rptr. 468] [defendant was disruptive in court; court instructed jurors they
should not consider this behavior in deciding guilt or innocence].) However, if the
defendant has put his or her character in issue or another basis for relevance exists,
such an instruction should not be given. (People v. Garcia, supra, 160 Cal.App.3d at
p. 91, fn. 7; People v. Foster (1988) 201 Cal.App.3d 20, 25 [246 Cal.Rptr. 855].)
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012), Criminal Trial, §§ 715,

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, §§ 83.01[1], 83.02[2] (Matthew Bender).
CALCRIM No. 222
POST-TRIAL: INTRODUCTORY
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introductory instructions for the guilt phase contain concepts that do not apply to the
penalty phase, the court must 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].) The Supreme Court has stated that, in order to avoid confusion, the trial court
should provide the jury with a completely new set of instructions for the penalty
phase. (People v. Weaver, supra, 26 Cal.4th at p. 982.)
The court has a sua sponte duty to give the bracketed paragraph instructing the jury
to disregard all previous instructions unless the current jury did not hear the guilt
phase of the case. (See People v. Arias (1996) 13 Cal.4th 92, 171 [51 Cal.Rptr.2d
770, 913 P.2d 980], cert. den. sub nom. Arias v. California (1997) 520 U.S. 1251
[117 S.Ct. 2408, 138 L.Ed.2d 175].)
The court should give the bracketed portion of the last paragraph that begins with
“Do not assume just because,” unless the court will be commenting on the evidence
pursuant to Penal Code section 1127. The committee recommends against any
comment on the evidence in the penalty phase of a capital case.
This instruction should be followed by any ot