Is a defendant's failure to testify at the penalty phase an error not to instruct the jury to refrain from drawing any inference from the fact that defendant did not testify at penalty phase?

California, United States of America

The following excerpt is from People v. Box, 23 Cal.4th 1153, 5 P.3d 130, 99 Cal.Rptr.2d 69 (Cal. 2000):

Defendant next contends it was error not to instruct the jury to refrain from drawing any inference from the fact that defendant did not testify at the penalty phase. Not so. (People v. Davenport, supra, 11 Cal.4th at p. 1231, 47 Cal. Rptr.2d 800, 906 P.2d 1068.)
Defendant also contends the jury should have been instructed that it could not consider as an aggravating factor any aspect of defendant's crimes that were elements of first degree murder. In particular, he contends that the trial court should have informed the jury of the definition of an "aggravating circumstance" contained in People v. Dyer (1988) 45 Cal.3d 26, 77, 246 Cal.Rptr. 209, 753 P.2d 1. In fact, the trial court did so.

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