The opinion
MORENO, J., Concurring.
I disagree with the majority regarding the trial court’s commutation instruction to the jury in response to its inquiries. In my view, such an instruction in that context was error. Moreover, the instruction was erroneously incomplete. I am bound by our prior case law, however, to *1251 conclude that the error was harmless beyond a reasonable doubt, and on that basis concur in the majority’s result.
We held in People v. Ramos (1984) 37 Cal.3d 136, 159 [ 207 Cal.Rptr. 800 , 689 P.2d 430 ] (Ramos), that an instruction during the penalty phase of a capital trial sua sponte informing jurors of the possibility that the Governor may commute a life imprisonment without possibility of parole sentence—the so-called Briggs instruction—violates the due process clause of the California Constitution. The court reasoned that such an instruction (1) invites groundless speculation, (2) undermines a juror’s sense of personal responsibility, and (3) undermines the Governor’s power of commutation by encouraging jurors to preempt that power. (37 Cal.3d at pp. 156-158.) Nonetheless, the court recognized that if the jury itself raises a commutation issue, it “cannot be avoided” and should be addressed briefly, by accurately explaining that the commutation power applies to both life imprisonment without possibility of parole and death sentences, and emphasizing that it would be a violation of a juror’s duty to consider commutation. (Id. at p. 159, fn. 12.)
Since Ramos , we have extended that recognition to situations in which a jury “implicitly]” refers to the commutation power, such as a jury’s question about whether “ ‘our penalty decision [can] be modified through any part of the appeal process.’ ” (People v. Hines (1997) 15 Cal.4th 997, 1073, 1071 [ 64 Cal.Rptr.2d 594 , 938 P.2d 388 ], italics omitted.) The key in Ramos is whether the jury raises the commutation issue so that it “cannot be avoided.” (Ramos, supra, 37 Cal.3d at p. 159, fn. 12 .) Although some of our post-Ramos cases have been less than rigorous in their reasoning, it is possible to argue that when juries ask broad, open-ended questions about the possibility of parole or the appeals process, such as in the above quoted passage from Hines , jurors are thinking about commutation, and that a commutation instruction is therefore appropriate.
But extending that rationale to the present case is unwarranted. As the majority opinion recounts, the jury asked during deliberations: “Does a conviction and sentence of Life without possibility of parole mean there is no future possibility of parole regardless of future changes of Law or Legal precident [sic]?” After consulting with counsel, the court issued this instruction: “The governor of the State of California has the power to commute or modify a sentence. This power applies to both fife without possibility of parole and the death sentence. It would be a violation of your duty as a juror to consider the possibilities of such commutation of an appropriate sentence.” (Maj. opn., ante, at pp. 1245-1246.)
It is difficult to say from the above that the jury was thinking about commutation and that therefore the issue of commutation could not be *1252 avoided. The jury’s question focuses on the power of the Legislature, or of the courts, to make changes in the law that will affect a life without parole sentence. As such, it was not necessary to raise the Governor’s commutation power under existing law in order to answer it.
Thus, for example, in People v. Turner (2004) 34 Cal.4th 406, 436-437 [ 20 Cal.Rptr.3d 182 , 99 P.3d 505 ], the trial court received the following three inquiries from the jury during penalty phase deliberations: “(1) ‘We understand the sentence of life in prison without the possibility of parole to mean exactly what it implies. Does it?’; (2) ‘After being sentenced to LWOP, if the law changed, could a person so sentenced then be eligible for parole?’; and (3) ‘How does LWOP . . . differ from a sentence of life imprisonment?’ ” After consulting with counsel, the trial court instructed the jury as follows: “ ‘For the purpose of your deliberations, you are to assume life without the possibility of parole means what it says.’ In responding to the second and third questions, the court told the jury: ‘As to those remaining questions, the court cannot instruct you further and you are not to speculate or consider such matters.’ ” (Id. at p. 437.)
Here, as in Turner , the jury wanted to know whether changes in the law would affect a life without parole sentence, and the trial court could have instructed the jury simply not to “ ‘speculate or consider such matters,’ ” instead of sua sponte instructing on gubernatorial commutation that the jury’s questions did not seem to raise. It cannot be the case that any time penalty phase jurors inquire into the true nature of a life without parole sentence, it is appropriate to instruct on commutation, no matter what form that inquiry takes. Because this is not a case where a commutation instruction “could not be avoided” (Ramos, supra, 37 Cal.3d at p. 159, fn. 12 ), and indeed, the trial court’s answer was not particularly responsive to the jury’s questions, I would conclude the trial court erred in instructing about commutation.
Moreover, I find merit in defendant’s argument that even if the instruction was appropriately given, in light of his three prior convictions, the commutation instruction was erroneous because it failed to inform the jury that commutation was possible for a twice-convicted felon only upon the recommendation of four justices of this court. (See Cal. Const., art. V, § 8, subd. (a).) In so arguing, defendant relies on Ninth Circuit precedent holding that such an omission may in some circumstances constitute prejudicial error. (Coleman v. Calderon (9th Cir. 2000) 210 F.3d 1047 (Coleman II).) The majority reject Coleman IPs approach, reiterating this court’s position that “there is no reason to mention the restrictions on the Governor’s power of commutation because they are irrelevant to the jury’s determination, and there is good reason not to stress a defendant’s record.” (Maj. opn., ante, at p. 1247.)
*1253 I find the above unpersuasive in the present case. First, while it may be true that “restrictions on the Governor’s power of commutation ... are irrelevant to the jury’s determination,” it is also true that the Governor’s power of commutation is itself irrelevant to the jury’s determination. When as here the trial court instructs in response to a jury question ostensibly about commutation, it is difficult to see why it should not instruct the jury in a manner that accurately describes the legal impediments to obtaining commutation, if the defendant is not opposed. As for the second reason, it is unclear why the general dictum that there is “good reason not to stress the defendant’s record” applies in the present case. As the majority recounts, defendant had an extensive criminal history and several prior convictions, mostly stemming from the crime spree he engaged in between the time he committed the murder and the time he was apprehended. Considerable evidence of this criminal history was introduced during the penalty phase. In his closing argument, the prosecutor discussed that criminal history at length. In light of this intensive focus on defendant’s criminal history during the penalty phase, it is difficult to say that modifying the commutation instruction in a way that alluded to that history would have been detrimental to defendant.
It is also within the realm of possibility that the trial court’s instructional error was prejudicial. First, the fact that the jury asked these questions during the course of their deliberations meant that there was some likelihood that the answers mattered to those deliberations, and that a wrong answer could have influenced the jury against defendant. Moreover, the court erred not only by erroneously giving the commutation instruction, but also by not responding to the jury’s real question, and it is possible additional prejudice resulted from that omission. Also to be considered in the prejudice equation is the closeness of the case. The fact that the panel’s deliberations continued for five days, while not conclusive, is one indication of closeness. Furthermore, although it was a brutal murder, as most all death-eligible murders are, it was more impulsive than deliberate, and there is some truth to trial counsel’s statement during closing argument that it was not “the worst of the worst” murders. Also significant, as defense counsel stressed, defendant was 18 years one month old at the time he committed the murder and, under the death penalty statute (Pen. Code, § 190.5) a person under 18 would not have been subject to the death penalty, even before the Supreme Court put that rule on a constitutional footing in Roper v. Simmons (2005) 543 U.S. 551 [ 161 L.Ed.2d 1 , 125 S.Ct. 1183 ]. Indeed, the murder of which defendant was convicted bore the hallmarks of an “ ‘impetuous and ill-considered action[] and decision[]’ ” (id. at p. 569) that juvenile criminals are particularly prone to, which the United States Supreme Court recognized in concluding that such criminals should not be subject to the death penalty. On the other hand, defendant’s extensive criminal history could be considered in aggravation.
*1254 Although the harmless error question would be close if I were writing on a clean slate, this court’s precedent holds that giving an instruction to disregard commutation renders any commutation instruction harmless. (People v. Coleman (1988) 46 Cal.3d 749, 782 [ 251 Cal.Rptr. 83 , 759 P.2d 1260 ].) Bound by that precedent, I concur that giving the instruction in this case was not prejudicial error. 1
Appellant’s petition for a rehearing was denied September 23, 2009. Werdegar, J., did not participate therein.
Because the error was harmless under this court’s precedent, I do not reach the question whether the Attorney General is correct that any error was invited. I note that, generally speaking, the doctrine of invited error applies only in situations in which defense counsel has requested an instruction based on a “conscious and deliberate tactical choice.” (People v. Lucero (2000) 23 Cal.4th 692, 724 [ 97 Cal.Rptr.2d 871 , 3 P.3d 248 ].) It is unclear the extent to which that doctrine extends to instructions that have been consented to rather than requested (ibid.), nor is it clear whether trial counsel’s decision in the present case to go along with an instruction that raised the possibility of gubernatorial commutation, somewhat incompletely, rather than responding to the juror question narrowly on its own terms, was the result of a tactical choice or mere inadvertence.