In a penalty case, in what circumstances will the court allow the jury to instruct the jury on a defendant's failure to testify in the penalty phase?

California, United States of America

The following excerpt is from People v. Babbitt, 248 Cal.Rptr. 69, 45 Cal.3d 660, 755 P.2d 253 (Cal. 1988):

We first observe that in the penalty phase, as in the guilt phase, the trial court has no sua sponte duty to instruct the jury on the defendant's failure to testify. (People v. Melton (1988) 44 Cal.3d 713, 758-759, 244 Cal.Rptr. 867, 750 P.2d 741.) Further, we question defendant's premise that at the penalty phase the jury either applied or rejected in toto all of the guilt phase instructions. The language of the no-sympathy instruction (CALJIC No. 1.00) refers specifically to deciding a defendant's guilt or innocence. ²³ The instructions on

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