In what circumstances will a jury not be instructed to "assume or "presume" that the sentence will be carried out?

⁴ In 2010, years after defendant's retrial, we held that a trial court "did not err by refusing" to give such an instruction because stating that jurors "should 'assume' or 'presume' that the sentence will be carried out obscures the purpose of the instruction" and "is misleading in the sense that, although other presumptions and assumptions that juries are instructed to consider have their bases in logic and experience, a presumption or assumption that the sentence will be carried out is, in fact, contradicted by the real possibility, of which some jurors may be aware, that the sentence will not be carried out." (People v. Letner and Tobin (2010) 50 Cal.4th 99, 206, 112 Cal.Rptr.3d 746, 235 P.3d 62.) We did not hold that courts that had followed our prior decisions and given such an instruction had erred, but we suggested that, "[i]n the future," a court "might" instead instruct jurors that, in determining punishment, they " 'must not be influenced by speculation or by any considerations other than those upon which I have instructed you.' " (Ibid. )

⁵ Moreover, in Gutierrez, we did not set forth the remarks the trial court permitted defense counsel to make (People v. Gutierrez, supra, 28 Cal.4th at p. 1159, 124 Cal.Rptr.2d 373, 52 P.3d 572 ), so it is impossible to determine from our opinion whether those remarks were similar to the unqualified remarks at issue here.