People v. Jackson

*1209 MOSK, J.

I concur in the judgment.

I write separately because I believe defendant’s claim of so-called “Brown” error is more substantial than may appear from a reading of the majority opinion. (People v. Brown (1985) 40 Cal.3d 512 [ 220 Cal.Rptr. 637 , 709 P.2d 440 ], revd. on other grounds sub nom. California v. Brown (1987) 479 U.S. 538 [ 93 L.Ed.2d 934 , 107 S.Ct. 837 ].)

The court instructed the jurors in accordance with the mandatory-penalty-determination language of Penal Code section 190.3 (hereafter section 190.3) as that language was incorporated in a modified version of a standard instruction: “If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose the sentence of death. ” (Italics added.) The final paragraph of section 190.3, on which the foregoing instruction was based, declares: “the trier of fact . . . shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances.” (Italics added.)

In Brown we construed the final paragraph of section 190.3 as follows in order to avoid the serious Eighth Amendment questions that would arise if the jury were deprived of discretion to decline to fix the penalty at death. “In this context, the word ‘weighing’ is a metaphor for a process which by nature is incapable of precise description. The word connotes a mental balancing process, but certainly not one which calls for a mere mechanical counting of factors on each side of the imaginary ‘scale,’ or the arbitrary assignment of ‘weights’ to any of them. Each juror is free to assign whatever moral or sympathetic value he deems appropriate to each and all of the various factors he is permitted to consider .... By directing that the jury ‘shall’ impose the death penalty if it finds that aggravating factors ‘outweigh’ mitigating, the statute should not be understood to require any juror to vote for the death penalty unless, upon completion of the ‘weighing’ process, he decides that death is the appropriate penalty under all the circumstances. Thus the jury, by weighing the various factors, simply determines under the relevant evidence which penalty is appropriate in the particular case.” ( 40 Cal.3d at p. 541 , fn. omitted.)

Stated simply, the jury is “require[d] ... to make a moral assessment on the basis of the character of the individual defendant and the circumstances of the crime and thereby decide which penalty is appropriate in the particular case.” (People v. Bonin (1989) 47 Cal.3d 808, 856 [ 254 Cal.Rptr. 298 , 765 P.2d 460 ].) In other words, “The jury is not simply to determine whether aggravating factors outweigh mitigating factors and then impose

*1210 the death penalty as a result of that determination, but rather it is to determine, after consideration of the relevant factors, whether under all the circumstances ‘death is the appropriate penalty’ for the defendant before it.” (People v. Myers (1987) 43 Cal.3d 250, 276 [ 233 Cal.Rptr. 264 , 729 P.2d 698 ] (lead opn. by Grodin, J.).)

Although in Brown we upheld the constitutionality of the final paragraph of section 190.3, we nevertheless recognized that when delivered in an instruction that provision’s mandatory-penalty-determination language might mislead jurors as to the scope of their sentencing discretion, to the defendant’s prejudice, in violation of Eighth Amendment principles. ( 40 Cal.3d at p. 544, fn. 17 .) Specifically, that language might be understood to define the penalty determination as “simply a finding of facts” {id. at p. 540) or “a mere mechanical counting of factors on each side of the imaginary ‘scale[]’ ” (id. at p. 541). In other words, it might mislead the jurors as to the nature of the process by which they are to determine penalty. The language! might also be understood to require a juror to vote for death if he finds that aggravation outweighs mitigation—even if he determines that death is hot the appropriate penalty under all the circumstances. (See id. at pp. 540-544.) That is to say, it might mislead the jurors as to the character of the ultimate question they are to resolve in the process of determining penalty.

Although the question is close, I believe that in the context of this case the instruction under challenge would not have misled reasonable jurors as to the scope of their sentencing discretion.

Specifically, the Brown court’s first concern was not substantially implicated in 'this case. Indeed, it was not implicated at all: neither court nor counsel suggested that the penalty determination was “simply a finding of facts” (People v. Brown, supra, 40 Cal.3d at p. 540 ) or “a mere mechanical counting of factors on each side of the imaginary ‘scale[ ]’ ” (id. at p. 541). Therefore, reasonable jurors would not have been misled as to the nature of the penalty-determining process.

Nor was the Brown court’s second concern substantially implicated. It is true that in a comment in the course of his summation the prosecutor referred to the mandatory-penalty-determination language. But the remark was brief' and unemphatic—and was overshadowed by argument focusing on the facts of the case and not the words of the instruction. It is also true that certain parts of the instructions suggested the crucial question was simply whether aggravation outweighed mitigation or vice versa, and that certain comments in the summations were in accord. But it appears that on this record reasonable jurors would not have concluded that they were *1211 required to vote for death if they found aggravation outweighed mitigation—unless they determined that death was appropriate under all the circumstances. Therefore, such jurors would not have been misled as to the character of the ultimate question in the penalty-determining process.

For these reasons, I conclude that on this record the challenged instruction would not have misled reasonable jurors as to the scope of their sentencing discretion. Therefore, in this case I find no Brown error.

Accordingly, I concur in the judgment.

Broussard, J., concurred.

Appellant’s petition for a rehearing was denied February 15, 1990.