Does the lingering doubt defense need to be presented to the jury?

Defendant argues, however, that once the court decided to instruct on lingering doubt, it was required to pinpoint for the jury that the defense theory of lingering doubt was based on heat of passion. To support this proposition, defendant cites to People v. Gay (2008) 42 Cal.4th 1195, 73 Cal.Rptr.3d 442, 178 P.3d 422, but that decision does not assist him. In that case, the court gave the penalty jury a lingering doubt instruction but prevented defense counsel from presenting a lingering doubt defense and informed the jury that the defendant's responsibility for the murder had been conclusively decided at an earlier trial on guilt. (Id . at p. 1225, 73 Cal.Rptr.3d 442, 178 P.3d 422.) This court reversed the penalty judgment, holding that these evidentiary and instructional errors posed "an intolerable risk" that the jury did not consider the defense case in mitigation, which was largely based on lingering doubt. (Id . at p. 1226, 73 Cal.Rptr.3d 442, 178 P.3d 422.) Gay did not state that instruction on lingering doubt is required, but that, under our death penalty law, the defense is entitled to present evidence and argument in support of a lingering doubt defense. In the present matter, defendant received that to which he was entitled, and more.