Ayers v. Belmontes

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

AYERS, ACTING WARDEN v. BELMONTES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT

No. 05–493. Argued October 3, 2006—Decided November 13, 2006
In the penalty phase of respondent’s capital murder trial, he introduced
mitigating evidence to show, inter alia, that he would lead a con
structive life if incarcerated rather than executed, testifying that he
had done so during a previous incarceration, when he had embraced
Christianity. Two prison chaplains and his Christian sponsors from
that time testified on his behalf, and the parties’ closing arguments
discussed this mitigating evidence and how the jury should consider
it. The trial judge told the jury to consider “[a]ny other circumstance
which extenuates the gravity of the crime even though it is not a le
gal excuse for the crime,” an instruction known as “factor (k)” under
California’s then-applicable statutory scheme. Respondent was sen
tenced to death. He contended, on direct review and in federal ha
beas proceedings, that factor (k) and the trial court’s other instruc
tions barred the jury from considering his forward-looking mitigation
evidence in violation of his Eighth Amendment right to present all
mitigating evidence in capital sentencing proceedings. The Federal
District Court denied relief, but the Ninth Circuit reversed. On re
consideration in light of Brown v. Payton, 544 U. S. 133, the Ninth
Circuit again invalidated respondent’s sentence.
Held: The factor (k) instruction is consistent with the constitutional
right to present mitigating evidence in capital sentencing proceed
ings. Pp. 4–16.
(a) This Court has previously found that factor (k) does not pre
clude consideration of constitutionally relevant evidence, such as
mitigating evidence about a defendant’s precrime background and
character, Boyde v. California, 494 U. S. 370, 377–378, 386, or post-
crime rehabilitation, Brown v. Payton, supra, at 135–136, and found
the proper inquiry to be “whether there is a reasonable likelihood
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Syllabus

that the jury has applied the challenged instruction in a way that
prevents the consideration of constitutionally relevant evidence,”
Boyde, supra, at 380. Pp. 4–6.
(b) That inquiry applies here. Like Payton, this case involves for
ward-looking evidence and comes to the Court on federal habeas pro
ceedings, but unlike Payton, it was filed before the effective date of
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
The Ninth Circuit distinguished Payton on this ground, but erred in
finding a “reasonable probability” that the jury did not consider evi
dence of respondent’s future potential. 414 F. 3d 1094, 1138. Pp. 6–
16.
(1) The Circuit adopted a narrow and unrealistic interpretation
of factor (k), ruling that “this instruction allows the jury to consider
evidence that bears upon the commission of the crime by the defen
dant and excuses or mitigates his culpability for the offense,” 414
F. 3d 1094, 1134. As Boyde and Payton explain, the jury is directed
“to consider any other circumstance that might excuse the crime.”
Boyde, supra, at 382. Just as precrime background and character
(Boyde) and postcrime rehabilitation (Payton) may “extenuat[e] the
gravity of the crime,” so may some likelihood of future good conduct
count as a circumstance tending to make a defendant less deserving
of the death penalty. The Ninth Circuit failed to heed the full import
of Payton’s holding, which is significant even where AEDPA is inap
plicable. Moreover, since respondent sought to extrapolate future
behavior from precrime conduct, his mitigation theory was more
analogous to the good-character evidence Boyde found to fall within
factor (k)’s purview. Pp. 6–8.
(2) This Court’s interpretation of factor (k) is the one most consis
tent with the evidence presented to the jury, the parties’ closing ar
guments, and the trial court’s other instructions. It is improbable
that the jury believed that the parties were engaged in an exercise in
futility when respondent presented extensive forward-looking evi
dence in open court. Both prosecution and defense arguments as
sumed the evidence was relevant. The prosecutor’s remarks that the
evidence was weak and his opinion about the weight it should be
given confirmed to the jury that it should analyze respondent’s future
potential. Respondent’s personal pleas were consistent with a trial in
which the jury would assess his future prospects in determining what
sentence to impose. This analysis is confirmed by defense counsel’s
closing arguments. The trial court’s other instructions make it quite
implausible that the jury would deem itself foreclosed from consider
ing respondent’s full case in mitigation. The judge told the jury to
consider all of the evidence, which included respondent’s forward-
looking mitigation case. The sharp contrast between the aggravation
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Syllabus

instruction (only enumerated factors could be considered) and the
mitigation one (listed factors were merely examples) also made clear
that the jury was to take a broad view of mitigating evidence. In con
cluding otherwise, the Ninth Circuit cited juror queries as evidence of
confusion. Assuming that interpretation is correct, the court’s con
clusion that a juror likely ignored forward-looking evidence presup
poses what it purports to establish, namely, that forward-looking evi
dence could not fall within factor (k). Pp. 8–16.
414 F. 3d 1094, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. SCALIA, J., filed a
concurring opinion, in which THOMAS, J., joined. STEVENS, J., filed a
dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ.,
joined.
 Cite as: 549 U. S. ____ (2006) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–493
_________________

ROBERT L. AYERS, JR., ACTING WARDEN, PETI-

TIONER v. FERNANDO BELMONTES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[November 13, 2006]

JUSTICE KENNEDY delivered the opinion of the Court.
Fernando Belmontes, the respondent here, was tried in
1982 in the Superior Court of the State of California in
and for the County of San Joaquin. A jury returned a
verdict of murder in the first degree and then determined
he should be sentenced to death. The issue before us
concerns a jury instruction in the sentencing phase.
The trial court, following the statute then in effect,
directed the jury, with other instructions and in a context
to be discussed in more detail, to consider certain specific
factors either as aggravating or mitigating. The trial
court further instructed the jury to consider “[a]ny other
circumstance which extenuates the gravity of the crime
even though it is not a legal excuse for the crime.” App.
184. Under the then-applicable statutory scheme this
general or catchall factor was codified at Cal. Penal Code
Ann. §190.3 (k) (West 1988); and it is referred to as “factor
(k).”
Belmontes contended, on direct review, in state collat
eral proceedings, and in the federal habeas proceedings
giving rise to this case, that factor (k) and the trial court’s
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Opinion of the Court

other instructions barred the jury from considering his
forward-looking mitigation evidence—specifically evidence
that he likely would lead a constructive life if incarcerated
instead of executed. The alleged limitation, in his view,
prevented the jury from considering relevant mitigation
evidence, in violation of his Eighth Amendment right to
present all mitigating evidence in capital sentencing
proceedings. See, e.g., Penry v. Johnson, 532 U. S. 782, 797
(2001); Skipper v. South Carolina, 476 U. S. 1, 4–5, 8 (1986);
Eddings v. Oklahoma, 455 U. S. 104, 112 (1982). The Cali
fornia Supreme Court, affirming the judgment and sen
tence, rejected this contention and other challenges.
People v. Belmontes, 45 Cal. 3d 744, 799–802, 819, 755 P. 2d
310, 341–343, 355 (1988).
In February 1994, after exhausting state remedies,
respondent filed an amended federal habeas petition. The
United States District Court for the Eastern District of
California denied relief, App. to Pet. for Cert. 140a–141a,
145a, but a divided panel of the United States Court of
Appeals for the Ninth Circuit reversed in relevant part,
Belmontes v. Woodford, 350 F. 3d 861, 908 (2003). Over
the dissent of eight judges, the Court of Appeals denied
rehearing en banc. Belmontes v. Woodford, 359 F. 3d 1079
(2004). This Court granted certiorari, vacated the judg
ment, and remanded for further consideration in light of
Brown v. Payton, 544 U. S. 133 (2005). Brown v. Belmon
tes, 544 U. S. 945 (2005). On remand, a divided panel
again invalidated respondent’s sentence; it distinguished
Payton on the grounds that the Antiterrorism and Effec
tive Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214,
though applicable in that case, does not apply here. Bel-
montes v. Brown, 414 F. 3d 1094, 1101–1102 (2005). Over
yet another dissent, the Court of Appeals again denied
rehearing en banc. Belmontes v. Stokes, 427 F. 3d 663
(2005). We granted certiorari, 547 U. S. ___ (2006), and
now reverse.
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Opinion of the Court

I
The evidence at trial showed that in March 1981, while
burglarizing a home where two accomplices had attended
a party, respondent unexpectedly encountered 19-year-old
Steacy McConnell. Respondent killed her by striking her
head 15 to 20 times with a steel dumbbell bar. Respon
dent had armed himself with the dumbbell bar before
entering the victim’s home. See Belmontes, 45 Cal. 3d, at
760–764, 755 P. 2d, at 315–317.
In the sentencing phase of his trial Belmontes intro
duced mitigating evidence to show, inter alia, that he
would make positive contributions to society in a struc
tured prison environment. Respondent testified that,
during a previous term under the California Youth Au
thority (CYA), he had behaved in a constructive way,
working his way to the number two position on a fire crew
in the CYA fire camp in which he was incarcerated. App.
44–45, 53. About that time he had embraced Christianity
and entered into a Christian sponsorship program. He
admitted that initially he participated in this program to
spend time away from the camp. Later, after forming a
good relationship with the married couple who were his
Christian sponsors, he pursued a more religious life and
was baptized. Although his religious commitment lapsed
upon his release from the CYA, he testified that he would
once again turn to religion whenever he could rededicate
himself fully to it. Id., at 46–48, 53–55. Finally, he an
swered in the affirmative when asked if he was “prepared
to contribute in anyway [he] can to society if [he was] put
in prison for the rest of [his] life.” Id., at 58.
Respondent’s former CYA chaplain testified at the
sentencing hearing that respondent’s conversion appeared
genuine. The chaplain, describing respondent as “sal
vageable,” expressed hope that respondent would contrib
ute to prison ministries if given a life sentence. Id., at 79–
83. An assistant chaplain similarly testified that, based
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Opinion of the Court

on past experience, respondent likely would be adept at
counseling other prisoners to avoid the mistakes he had
made when they leave prison. Id., at 95–96. And respon
dent’s Christian sponsors testified he was like a son to
them and had been a positive influence on their own son.
They also indicated he had participated in various activi
ties at their church. Id., at 99–103, 110–114.
After respondent presented his mitigating evidence, the
parties made closing arguments discussing respondent’s
mitigating evidence and how the jury should consider it.
Respondent was also allowed to provide his own state
ment. The trial judge included in his instructions the
disputed factor (k) language, an instruction that has since
been amended, see Cal. Jury Instr., Crim., No. 8.85(k)
(2005).
II
In two earlier cases this Court considered a constitu
tional challenge to the factor (k) instruction. See Brown v.
Payton, supra; Boyde v. California, 494 U. S. 370 (1990).
In Boyde, the Court rejected a claim that factor (k), with its
focus on circumstances “‘extenuat[ing] the gravity of the
crime,’ ” precluded consideration of mitigating evidence
unrelated to the crime, such as evidence of the defendant’s
background and character. Id., at 377–378, 386. The
“proper inquiry,” the Court explained, “is whether there is a
reasonable likelihood that the jury has applied the chal
lenged instruction in a way that prevents the consideration
of constitutionally relevant evidence.” Id., at 380. Since the
defendant in Boyde “had an opportunity through factor (k)
to argue that his background and character ‘extenuated’ or
‘excused’ the seriousness of the crime,” the Court saw “no
reason to believe that reasonable jurors would resist the
view, ‘long held by society,’ that in an appropriate case such
evidence would counsel imposition of a sentence less than
death.” Id., at 382 (citing Penry v. Lynaugh, 492 U. S. 302,
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Opinion of the Court

319 (1989)). During the sentencing phase in Boyde, more
over, the defense had presented extensive evidence regard
ing background and character, so construing factor (k) to
preclude consideration of that evidence would have required
the jurors not only to believe that “the court’s instructions
transformed all of this ‘favorable testimony into a virtual
charade,’ ” 494 U. S., at 383 (quoting California v. Brown,
479 U. S. 538, 542 (1987)), but also to disregard another
instruction requiring the jury to “ ‘consider all of the evidence
which has been received during any part of the trial of this
case,’ ” 494 U. S., at 383.
In Payton, the Court again evaluated arguments that
factor (k) barred consideration of constitutionally relevant
evidence—this time, evidence relating to postcrime reha
bilitation, rather than precrime background and charac
ter. See 544 U. S., at 135–136. Payton did not come to
this Court, as had Boyde, on direct review, but rather by
federal habeas petition subject to AEDPA. Relief was
available only if “the state court’s adjudication of the claim
‘resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States.’ ” Payton, supra, at 141 (quoting 28 U. S. C.
§2254(d)(1)). Although the prosecutor in Payton had
argued to the jury—incorrectly—that factor (k) did not
permit consideration of postcrime rehabilitation evidence,
this Court concluded that the California Supreme Court
reasonably applied Boyde in finding no Eighth Amend
ment violation. 544 U. S., at 142, 146–147. Accepting the
prosecutor’s reading would have required “the surprising
conclusion that remorse could never serve to lessen or
excuse a crime.” Id., at 142. Furthermore, countering any
misimpression created by the prosecution’s argument, the
defense in Payton had presented extensive evidence and
argument regarding a postcrime religious conversion and
other good behavior. The trial court had instructed the
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Opinion of the Court

jury to consider all evidence admitted “ ‘during any part of
the trial in this case, except as you may be hereafter in
structed,’ ” and the prosecution itself “devoted substantial
attention to discounting [the postcrime evidence’s] impor
tance as compared to the aggravating factors.” Id., at
145–146. Hence, the state court in Payton could reasona
bly have concluded that, as in Boyde, there was no reason
able likelihood that the jury understood the instruction to
preclude consideration of the postcrime mitigation evi
dence it had heard. 544 U. S., at 147.
III
As the Court directed in Boyde, we inquire “whether
there is a reasonable likelihood that the jury has applied the
challenged instruction in a way that prevents the considera
tion of constitutionally relevant evidence.” 494 U. S., at
380. Here, as in Payton, respondent argues that factor (k)
prevented the jury from giving effect to his forward-
looking evidence. And, as in Payton, respondent’s case
comes to this Court in federal habeas proceedings collater
ally attacking the state court’s ruling. Unlike in Payton,
however, the federal petition in this case was filed before
AEDPA’s effective date. AEDPA and its deferential stan
dards of review are thus inapplicable. See Woodford v.
Garceau, 538 U. S. 202, 210 (2003). The Court of Appeals
distinguished Payton on this ground. See 414 F. 3d, at
1101–1102. It was mistaken, however, to find a “reason
able probability” that the jury did not consider respon
dent’s future potential. Id., at 1138.
A
The Court of Appeals erred by adopting a narrow and,
we conclude, an unrealistic interpretation of factor (k).
“Most naturally read,” the Court of Appeals reasoned,
“this instruction allows the jury to consider evidence that
bears upon the commission of the crime by the defendant
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Opinion of the Court

and excuses or mitigates his culpability for the offense.”
Id., at 1134. As both Boyde and Payton explain, however,
this interpretation is too confined. “The instruction did
not . . . limit the jury’s consideration to ‘any other circum
stance of the crime which extenuates the gravity of the
crime.’ The jury was directed to consider any other cir
cumstance that might excuse the crime.” Boyde, supra, at
382; see also Payton, supra, at 141–142. And just as pre-
crime background and character (Boyde) and postcrime
rehabilitation (Payton) may “extenuat[e] the gravity of the
crime,” so may some likelihood of future good conduct
count as a circumstance tending to make a defendant less
deserving of the death penalty. Cf. Skipper, 476 U. S., at
4–5 (explaining that while inferences regarding future
conduct do not “relate specifically to [a defendant’s] culpa
bility for the crime he committed,” those inferences are
“ ‘mitigating’ in the sense that they might serve ‘as a basis
for a sentence less than death’ ” (quoting Lockett v. Ohio,
438 U. S. 586, 604 (1978) (plurality opinion))).
The Court of Appeals failed to heed the full import of
Payton’s holding, a holding that has significance even
where AEDPA is inapplicable. Payton indicated that
reading factor (k) to preclude consideration of postcrime
evidence would require “the surprising conclusion that
remorse could never serve to lessen or excuse a crime.”
544 U. S., at 142. So, too, would it be counterintuitive if a
defendant’s capacity to redeem himself through good
works could not extenuate his offense and render him less
deserving of a death sentence.
In any event, since respondent sought to extrapolate
future behavior from precrime conduct, his mitigation
theory was more analogous to the good-character evidence
examined in Boyde and held to fall within factor (k)’s
purview. See 494 U. S., at 381 (describing the evidence at
issue as including evidence of the defendant’s “strength of
character”). Both types of evidence suggest the crime
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Opinion of the Court

stemmed more from adverse circumstances than from an
irredeemable character. See 414 F. 3d, at 1141–1142
(O’Scannlain, J., concurring in part and dissenting in
part); cf. Johnson v. Texas, 509 U. S. 350, 369 (1993) (not
ing that the “forward-looking” future-dangerousness in
quiry “is not independent of an assessment of personal
culpability”).
B
Our interpretation of factor (k) is the one most consis
tent with the evidence presented to the jury, the parties’
closing arguments, and the other instructions provided by
the trial court. Each of these will be discussed in turn.
As the Court of Appeals recognized, future-conduct
evidence was central to the mitigation case presented by
the defense. See 414 F. 3d, at 1134. Indeed, although the
defense also adduced evidence of a troubled upbringing,
respondent testified that he could not use his difficult life
“as a crutch to say I am in a situation right now, I’m here
now because of that.” App. 40. Given this assertion, and
considering the extensive forward-looking evidence pre
sented at sentencing—evidence including testimony from
two prison chaplains, respondent’s church sponsors, and
respondent himself—the jurors could have disregarded
respondent’s future potential only if they drew the
unlikely inference that “the court’s instructions trans
formed all of this ‘favorable testimony into a virtual cha
rade,’ ” Boyde, supra, at 383 (quoting Brown, 479 U. S., at
542). It is improbable the jurors believed that the parties
were engaging in an exercise in futility when respondent
presented (and both counsel later discussed) his mitigat
ing evidence in open court.
Arguments by the prosecution and the defense assumed
the evidence was relevant. The prosecutor initially dis
cussed the various factors that were to guide the jury. He
referred to factor (k) as “a catchall.” App. 153. He then
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Opinion of the Court

discussed respondent’s religious experience in some detail.
With respect to whether this experience fit within factor
(k), he indicated: “I’m not sure it really fits in there. I’m
not sure it really fits in any of them. But I think it ap
pears to be a proper subject of consideration.” Id., at 154.
These seemingly contradictory statements are explained
by the prosecutor’s following comments.
The prosecutor suggested (quite understandably on the
record) that respondent’s religious evidence was weak. He
stated: “You know, first of all, it’s no secret that the evi
dence upon which the defendant’s religious experience
rests is somewhat shaky.” Ibid. He also opined that the
experience had to be taken “with a grain of salt.” Id., at
155. The jury would have realized that, when the prosecu
tor suggested respondent’s religious experience did not fit
within factor (k), he was discussing the persuasiveness of
the evidence, not the jury’s ability to consider it. After all,
he thought religion was “a proper subject of considera
tion.” Id., at 154.
The prosecutor then discussed how the jury should
weigh respondent’s “religious awakening”:
“I suppose you can say it would be appropriate be
cause—in this fashion: The defendant may be of value
to the community later. You recall the people talking
about how he would have the opportunity to work
with other prisoners in prison. And I think that value
to the community is something that you have to weigh
in. There’s something to that.
“On the other hand, the fact that someone has relig
ion as opposed to someone doesn’t should be no
grounds for either giving or withholding life. I mean
let’s turn it around and look at the other side of the
coin. Suppose someone said he didn’t belong to a
church and didn’t talk to a minister. Would that man
deserve to die merely because of that? So if he says he
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Opinion of the Court

has religion, does he deserve the other penalty, life? I
don’t think that that should be an influencing factor
at all in that respect. I don’t think the law contem
plates that and I don’t think it’s right.” Id., at 155.
These remarks confirmed to the jury that it should
analyze respondent’s future potential, his future “value to
the community.” Ibid. This is what respondent himself
wanted it to do. And while the prosecutor commented that
the law did not contemplate jury consideration of respon
dent’s religious conversion, respondent did not argue that
the jury should consider the mere fact that he had discov
ered religion. Rather, as manifested by his arguments on
appeal, respondent wanted to use this religious evidence
to demonstrate his future “value to the community,” not to
illustrate his past religious awakening. Nothing the
prosecutor said would have convinced the jury that it was
forbidden from even considering respondent’s religious
conversion, though surely the jury could discount it; and
nothing the prosecutor said would have led the jury to
think it could not consider respondent’s future potential,
especially since he indicated that this is exactly what the
jury had “to weigh” in its deliberation. Ibid.
After the prosecutor concluded his arguments, the trial
judge allowed respondent to speak on his own behalf.
Respondent, while not showing any remorse, suggested
that life imprisonment offered “an opportunity to achieve
goals and try to better yourself.” Id., at 163. He also
stated: “I myself would really like to have my life and try
to improve myself.” Id., at 164. Respondent’s personal
pleas were consistent with a trial in which the jury would
assess his future prospects in determining what sentence
to impose.
Defense counsel’s closing arguments confirm this analy
sis. To be sure, commenting on the mitigating evidence,
he initially indicated: “I’m not going to insult you by tell
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Opinion of the Court

ing you I think [the mitigating evidence] excuses in any
way what happened here. That is not the reason I asked
these people to come in.” Id., at 166. Read in context
defense counsel’s remarks did not imply the jury should
ignore the mitigating evidence. Rather, conforming to the
dichotomy within factor (k) itself, his remarks merely
distinguished between a legal excuse and an extenuating
circumstance. Cf. Cal. Penal Code Ann. §190.3(k) (“[a]ny
other circumstance which extenuates the gravity of the
crime even though it is not a legal excuse for the crime”).
That defense counsel did, in fact, want the jury to take
into account respondent’s future potential became mani
fest near the end of his argument. He suggested that the
“people who came in here [and] told you about [respon
dent]” provided the jury with “a game plan” for what
respondent could do with his life. App. 170. He continued:
“We’re just suggesting the tip of the iceberg because who
knows in 20, 30, 40, 50 years what sorts of things he can
do, as he fits into the system, as he learns to set his goals,
to contribute something in whatever way he can.” Ibid.
This would have left the jury believing it could and should
contemplate respondent’s potential.
Other instructions from the trial court make it quite
implausible that the jury would deem itself foreclosed
from considering respondent’s full case in mitigation.
Before enumerating specific factors for consideration—
factors including the circumstances of the crime, the de
fendant’s age, and “[t]he presence or absence of any prior
felony conviction,” id., at 184, as well as the factor (k)
catchall—the judge told the jury: “In determining which
penalty is to be imposed on the defendant you shall con
sider all of the evidence which has been received during
any part of the trial of this case, except as you may be
hereafter instructed.” Id., at 183. After listing the factors,
he indicated:
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“After having heard all of the evidence and after
having heard and considered the arguments of coun
sel, you shall consider, take into account and be
guided by the applicable factors of aggravating and
mitigating circumstances upon which you have been
instructed.
“If you conclude that the aggravating circumstances
outweigh the mitigating circumstances, you shall im
pose a sentence of death. However, if you determine
that the mitigating circumstances outweigh the ag
gravating circumstances, you shall impose a sentence
of confinement in the state prison for life without the
possibility of parole.” Id., at 185.
The judge then gave a supplemental instruction regard
ing aggravating and mitigating factors:
“I have previously read to you the list of aggravat
ing circumstances which the law permits you to con
sider if you find that any of them is established by the
evidence. These are the only aggravating circum
stances that you may consider. You are not allowed to
take account of any other facts or circumstances as
the basis for deciding that the death penalty would be
an appropriate punishment in this case.
“However, the mitigating circumstances which I
have read for your consideration are given to you
merely as examples of some of the factors that you
may take into account as reasons for deciding not to
impose a death penalty or a death sentence upon Mr.
Belmontes. You should pay careful attention to each
of these factors. Any one of them standing alone may
support a decision that death is not the appropriate
punishment in this case.” Id., at 185–186.
Given the evidence and arguments presented to the
jury, these instructions eliminate any reasonable likeli
hood that a juror would consider respondent’s future
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Opinion of the Court

prospects to be beyond the bounds of proper consideration.
The judge told the jury to consider “all of the evidence,”
and “all of the evidence” included respondent’s forward-
looking mitigation case. While the judge did end his broad
command to appraise all the evidence with the qualifier
“except as you may be hereafter instructed,” id., at 183, he
did not later instruct the jury that it should disregard
respondent’s future potential in prison. The jury could not
fairly read the limitation in the instruction to apply to
respondent’s central mitigation theory. By contrast, in
response to a juror’s question, the trial judge specifically
instructed the jury not to consider whether respondent
could receive psychiatric treatment while in prison.
The sharp contrast between the court’s instruction on
aggravation (that only enumerated factors could be con
sidered) and its instruction on mitigation (that listed
factors were “merely . . . examples,” id., at 186) made it
clear that the jury was to take a broad view of mitigating
evidence. Coming back to back, the instructions conveyed
the message that the jury should weigh the finite aggrava
tors against the potentially infinite mitigators. That the
trial judge told the jury to “pay careful attention” to the
listed mitigating factors, ibid., moreover, did not compel
the jury to give them sole consideration. For this to be the
case, the jury would have had to fail to take the judge at
his word. The judge did not advise the jury to pay exclu
sive attention to the listed mitigating circumstances, and
he had told the jury that these circumstances were simply
examples.
It is implausible that the jury supposed that past deeds
pointing to a constructive future could not “extenuat[e] the
gravity of the crime,” as required by factor (k), much less
that such evidence could not be considered at all. Boyde
concludes that in jury deliberations “commonsense under
standing of the instructions in the light of all that has
taken place at the trial [is] likely to prevail over technical
14 AYERS v. BELMONTES

Opinion of the Court

hairsplitting.” 494 U. S., at 381. Here, far from encourag
ing the jury to ignore the defense’s central evidence, the
instructions supported giving it due weight.
In concluding otherwise, the Court of Appeals cited
queries from some of the jurors as evidence of confusion.
Although the jury’s initial question is not in the record, it
appeared to ask the judge about the consequences of fail
ing to reach a unanimous verdict. Cf. 414 F. 3d, at 1135.
In response, the judge reread portions of the instructions
and stated that “all 12 jurors must agree, if you can.” App.
190. Before the judge sent the jury back for further delib
eration, the following exchange took place:
“JUROR HERN: The statement about the aggrava
tion and mitigation of the circumstances, now, that
was the listing?
“THE COURT: That was the listing, yes, ma’am.
“JUROR HERN: Of those certain factors we were to
decide one or the other and then balance the sheet?
“THE COURT: That is right. It is a balancing proc
ess. Mr. Meyer?
“JUROR MEYER: A specific question, would this be
an either/or situation, not a one, if you cannot the
other?
“THE COURT: No. It is not that.

“JUROR MEYER: It is an either/or situation?

“THE COURT: Exactly. If you can make that ei

ther/or decision. If you cannot, then I will discharge
you.
“JUROR HAILSTONE: Could I ask a question? I
don’t know if it is permissible. Is it possible that he
could have psychiatric treatment during this time?
“THE COURT: That is something you cannot con
sider in making your decision.” Id., at 191.
The Court of Appeals decided Juror Hern’s questions
 Cite as: 549 U. S. ____ (2006) 15

Opinion of the Court

indicated she thought (incorrectly) that only listed miti
gating factors were on the table—an error, in the Court of
Appeals’ view, that should have prompted a clarifying
instruction confirming that all the mitigating evidence
was relevant. 414 F. 3d, at 1136. The Court of Appeals
further supposed the response to Juror Hailstone’s ques
tion compounded the problem, since psychiatric treatment
presumably would be necessary only in aid of future reha
bilitation. Id., at 1137.
The Court of Appeals’ analysis is flawed. To begin with,
attributing to Juror Hern a dilemma over the scope of
mitigation is only one way to interpret her questions, and,
as the California Supreme Court observed on direct re
view, it is not necessarily the correct one, see Belmontes,
45 Cal. 3d, at 804, 755 P. 2d, at 344. It is at least as likely
that the juror was simply asking for clarification about
California’s overall balancing process, which requires
juries to consider and balance enumerated factors (such as
age and criminal history) that are labeled neither as miti
gating nor as aggravating. As Juror Hern surmised (but
sought to clarify), the jury itself must determine the side
of the balance on which each listed factor falls. See Cal.
Penal Code Ann. §190.3 (providing that, “[i]n determining
the penalty, the trier of fact shall take into account” any
relevant listed factors); see generally Tuilaepa v. Califor
nia, 512 U. S. 967, 978–979 (1994) (noting that the §190.3
sentencing factors “do not instruct the sentencer how to
weigh any of the facts it finds in deciding upon the ulti
mate sentence”).
Even assuming the Court of Appeals correctly inter
preted Juror Hern’s questions, the court’s conclusion that
this juror likely ignored forward-looking evidence presup
poses what it purports to establish, namely, that forward-
looking evidence could not fall within factor (k). As dis
cussed earlier, nothing barred the jury from viewing re
spondent’s future prospects as “extenuat[ing] the gravity
16 AYERS v. BELMONTES

Opinion of the Court

of the crime,” so nothing barred it from considering such
evidence under the rubric of the “listing.” As for Juror
Hailstone’s psychiatric-care question, this inquiry shows
that, if anything, the jurors were considering respondent’s
potential. The trial court’s response, far from implying a
broad prohibition on forward-looking inferences, was
readily explicable by the absence of any evidence in the
record regarding psychiatric care.
In view of our analysis and disposition in this case it is
unnecessary to address an argument for reversing the
Court of Appeals based on the Court’s holding in Johnson
v. Texas, 509 U. S. 350 (1993), a subject raised by Judge
O’Scannlain in his separate opinion in the Court of Ap
peals. See 414 F. 3d, at 1141–42 (opinion concurring in
part and dissenting in part).
IV
In this case, as in Boyde and as in Payton, the jury
heard mitigating evidence, the trial court directed the jury
to consider all the evidence presented, and the parties
addressed the mitigating evidence in their closing argu
ments. This Court’s cases establish, as a general rule,
that a jury in such circumstances is not reasonably likely
to believe itself barred from considering the defense’s
evidence as a factor “extenuat[ing] the gravity of the
crime.” The factor (k) instruction is consistent with the
constitutional right to present mitigating evidence in
capital sentencing proceedings.
The judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.
 Cite as: 549 U. S. ____ (2006) 1

SCALIA, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–493
_________________

ROBERT L. AYERS, JR., ACTING WARDEN, PETI-

TIONER v. FERNANDO BELMONTES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[November 13, 2006]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
concurring.
I adhere to my view that limiting a jury’s discretion to
consider all mitigating evidence does not violate the
Eighth Amendment. See Walton v. Arizona, 497 U. S. 639,
673 (1990) (SCALIA, J., concurring in part and concurring
in judgment). Even accepting the Court’s jurisprudence to
the contrary, however, this is arguably an easy case, given
our reiteration in Johnson v. Texas, 509 U. S. 350, 372
(1993), that a jury need only “be able to consider in some
manner all of a defendant’s relevant mitigating evidence,”
and need not “be able to give effect to mitigating evidence
in every conceivable manner in which the evidence might
be relevant.” But since petitioner has not relied on John
son, as Judge O’Scannlain did below, see Belmontes v.
Brown, 414 F. 3d 1094, 1141–1142 (CA9 2005) (opinion
concurring in part and dissenting in part), I am content to
join in full the Court’s opinion, which correctly applies
Boyde v. California, 494 U. S. 370 (1990).
 Cite as: 549 U. S. ____ (2006) 1

STEVENS, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–493
_________________

ROBERT L. AYERS, JR., ACTING WARDEN, PETI-

TIONER v. FERNANDO BELMONTES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[November 13, 2006]

JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE
GINSBURG, and JUSTICE BREYER join, dissenting.
In Lockett v. Ohio, 438 U. S. 586 (1978), the Court set
aside Ohio’s death penalty statute as unconstitutional
because it unduly restricted the mitigating evidence that a
jury could consider in deciding whether to impose the
death penalty. In his opinion announcing the judgment,
Chief Justice Burger wrote:
“There is no perfect procedure for deciding in which
cases governmental authority should be used to im
pose death. But a statute that prevents the sentencer
in all capital cases from giving independent mitigat
ing weight to aspects of the defendant’s character and
record and to circumstances of the offense proffered in
mitigation creates the risk that the death penalty will
be imposed in spite of factors which may call for a less
severe penalty. When the choice is between life and
death, that risk is unacceptable and incompatible
with the commands of the Eighth and Fourteenth
Amendments.” Id., at 605 (plurality opinion).
The respondent here, Fernando Belmontes, was sen
tenced to death in 1982, a scant four years after Lockett.
See People v. Belmontes, 45 Cal. 3d 744, 755 P. 2d 310
(1988). Yet at the time of his sentencing, there remained
2 AYERS v. BELMONTES

STEVENS, J., dissenting

significant residual confusion as to whether the Constitu
tion obligated States to permit juries to consider evidence
that, while not extenuating the defendant’s culpability for
the crime, might nevertheless call for a sentence less than
death. Cf. People v. Easley, 34 Cal. 3d 858, 875–880, 671
P. 2d 813, 823–827 (1983) (noting arguments on both
sides).
The California death penalty statute in effect in 1982
quite plainly rested on the assumption that California
could preclude the consideration of such evidence. The
statute commanded that the jury “shall impose” a death
sentence if aggravating circumstances outweigh mitigat
ing circumstances, and limited the jury’s inquiry to 11
discrete categories of evidence. See Cal. Penal Code
§190.3 (West 1988). Other than factors relating to the
defendant’s age and prior criminal record, every one of
those categories relate to the severity of the crime of which
the defendant was convicted.1 And while the eleventh
——————
1 Thosecategories are: “(a) The circumstances of the crime of which
the defendant was convicted in the present proceeding and the exis
tence of any special circumstances found to be true . . . .
“(b) The presence or absence of criminal activity by the defendant
which involved the use or attempted use of force or violence or the
express or implied threat to use force or violence.
“(c) The presence or absence of any prior felony conviction.
“(d) Whether or not the offense was committed while the defendant
was under the influence of extreme mental or emotional disturbance.
“(e) Whether or not the victim was a participant in the defendant’s
homicidal conduct or consented to the homicidal act.
“(f) Whether or not the offense was committed under circumstances
which the defendant reasonably believed to be a moral justification or
extenuation for his conduct.
“(g) Whether or not defendant acted under extreme duress or under
the substantial domination of another person.
“(h) Whether or not at the time of the offense the capacity of the
defendant to appreciate the criminality of his conduct or to conform his
conduct to the requirements of law was impaired as a result of mental
disease or defect, or the affects of intoxication.
“(i) The age of the defendant at the time of the crime.
 Cite as: 549 U. S. ____ (2006) 3

STEVENS, J., dissenting

catch-all “factor (k)” authorized consideration of “[a]ny
other circumstance which extenuates the gravity of the
crime even though it is not a legal excuse for the crime,”
§190.3(k), factor (k)’s restrictive language sent the unmis
takable message that California juries could properly give
no mitigating weight to evidence that did not extenuate
the severity of the crime.
Just a year after respondent’s sentencing the California
Supreme Court evinced considerable discomfort with
factor (k). In People v. Easley, after discussing the possi
ble unconstitutionality of the penalty phase instructions,
the court inserted a critical footnote effectively amending
factor (k) and expanding the evidence that a California
jury could properly consider in deciding whether to impose
a death sentence:
“In order to avoid potential misunderstanding in the
future, trial courts—in instructing on [factor (k)]—
should inform the jury that it may consider as a miti
gating factor ‘any other circumstance which extenu
ates the gravity of the crime even though it is not a
legal excuse for the crime’ and any other ‘aspect of
[the] defendant’s character or record . . . that the de
fendant proffers as a basis for a sentence less than
death.’ ” 34 Cal. 3d, at 878, n. 10, 671 P. 2d, at 826, n.

——————
“(j) Whether or not the defendant was an accomplice to the offense
and his participation in the commission of the offense was relatively
minor.
“(k) Any other circumstance which extenuates the gravity of the
crime even though it is not a legal excuse for the crime.” Cal. Penal
Code Ann. §190.3 (West 1988).
The 1988 version of §190.3 also provided that “[a]fter having heard
and received all of the evidence, . . . the trier of fact shall consider, take
into account and be guided by the aggravating and mitigating circum
stances referred to in this section,” and “shall determine whether the
penalty shall be death or confinement in state prison for a term of life
without the possibility of parole.”
4 AYERS v. BELMONTES

STEVENS, J., dissenting

10 (emphasis added).2
Although Easley came too late to help respondent, the
California Supreme Court’s evident concern that capital
juries must be permitted to consider evidence beyond that
which “extenuates the gravity of the crime” proved pre
scient. In Skipper v. South Carolina, 476 U. S. 1 (1986)—
decided two years before the California Supreme Court
affirmed respondent’s conviction and therefore fully appli
cable here, see Griffith v. Kentucky, 479 U. S. 314, 322–
323 (1987)—we expressly rejected the argument, pre
sented in Justice Powell’s separate opinion, that the
States retained the authority to determine what mitigat
ing evidence is relevant “as long as they do not foreclose
consideration of factors that may tend to reduce the de
fendant’s culpability for his crime,” see Skipper, 476 U. S.,
at 11 (opinion concurring in judgment). Apart from the
traditional sentencing factors such as “[e]vidence concern
ing the degree of the defendant’s participation in the
crime, or his age and emotional history,” Justice Powell
would have held that States could properly exclude evi
dence during a capital sentencing proceeding. Id., at 13.
The majority, however, took a more expansive view.
Although it recognized that the probative force of Skip
per’s excluded evidence “would not relate specifically to
petitioner’s culpability for the crime he committed, [there
was] no question but that such inferences would be ‘miti
gating’ in the sense that they might serve ‘as a basis for a
sentence less than death.’ ” Id., at 4–5 (quoting Lockett,
——————
2 The
California Legislature also responded to the confusion by
amending factor (k) to include “any sympathetic or other aspect of the
defendant’s character or record that the defendant offers as a basis for
a sentence less than death, whether or not related to the offense for
which he is on trial.” Cal. Jury Instr., Crim., No. 8.85(k) (2005) (brack
ets omitted). That amendment confirms the view that the category of
evidence that may provide the basis for a sentence other than death is
much broader that the category described in factor (k).
 Cite as: 549 U. S. ____ (2006) 5

STEVENS, J., dissenting

438 U. S., at 604; emphasis added). After Skipper, then,
the law was clear: A capital jury must be allowed to con
sider a broader category of mitigating evidence than nor
mally relevant in noncapital proceedings.
Respondent was sentenced, however, before Easley
rewrote factor (k) and before Skipper resolved the confu
sion over whether States had the constitutional latitude to
restrict evidence that did not “tend to reduce the defen
dant’s culpability for his crime,” 476 U. S., at 11 (Powell,
J., concurring in judgment). As the following review of the
record will underscore, that confusion pervaded every
aspect of respondent’s sentencing hearing. It addled the
trial judge, the prosecutor, defense counsel, and—
inevitably—the jurors themselves.
I
At the sentencing hearing, after the prosecution put on
its case—which consisted mainly of evidence of respon
dent’s previous conduct, see Belmontes, 45 Cal. 3d, at 795,
755 P. 2d, at 338–339—respondent countered with testi
mony from his grandfather and his mother. That testi
mony focused almost entirely on respondent’s background:
His father drank to excess and savagely beat his wife; his
parents were divorced when he was 9 or 10 years old; his
mother remarried, but again divorced when respondent
was 14 or 15 years old; at this point respondent became
difficult to control, and, in 1979, he was sent to the Cali
fornia Youth Authority (Youth Authority); after his re
lease, respondent did not live with his mother, although
he kept in touch with her by telephone and was very close
with his 15-year-old sister. See generally App. 5–22.
Next, the jury heard testimony from Robert Martinez
and his wife Darlene, both of whom testified that they
were close friends with respondent but admitted that they
had seen him only once after he was released from the
Youth Authority. Id., at 26–27, 35. Robert further testi
6 AYERS v. BELMONTES

STEVENS, J., dissenting

fied that respondent was the best man at his wedding and
that, prior to his wedding, the two of them would spend a
lot of time together, working on Martinez’s car, drinking
beer, and smoking marijuana. Id., at 25, 28. The focus of
Darlene’s testimony was that she was a born-again Chris
tian, and that, when respondent visited Darlene and her
husband after his release from the Youth Authority, he
told her that he was also a born-again Christian. Id., at
35–36.
Respondent then testified on his own behalf. When
asked about his childhood, respondent answered that he
“can’t use it as a crutch to say I am in a situation right
now, I’m here now because of that.” Id., at 40. He went on
to describe his relationships with his father and grandfa
ther and to relate his experience at the Youth Authority.
Id., at 41–45. Respondent testified that, while at the
Youth Authority, he became involved in a Christian pro
gram and developed a relationship with his sponsors in
that program, Beverly and Fred Haro. Id., at 46–48.
Upon his release, however, respondent started having
problems and abandoned his religious commitment, some
thing he had not yet regained fully at the time of the
sentencing hearing. Id., at 53–54. Respondent then de
scribed his life in prison and stated that, were he given a
life sentence, he would attempt to make a positive contri
bution to society. Id., at 55–58. On cross-examination,
most of the prosecutor’s questions focused on the sincerity
of respondent’s religious commitment. Id., at 58–65.
The following day, respondent presented testimony from
Reverend Dale Barrett and Don Miller, both ministers
who worked at the Youth Authority location where re
spondent was held. Reverend Barrett described the Youth
Authority’s M–2 program through which respondent was
matched with the Haros. Id., at 74–76. He then testified
about respondent’s involvement with the church and the
M–2 program, and how his interactions with respondent
 Cite as: 549 U. S. ____ (2006) 7

STEVENS, J., dissenting

led him to believe that he was “salvageable.” Id., at 76–
82. Miller similarly testified about respondent’s participa
tion in the program and his belief that respondent would
be adept at speaking with other prisoners about accepting
religion. Id., at 92, 95–96; see also id., at 96 (testifying
that respondent would “[d]efinitely . . . be used in the
prison system for this sort of activity”).
Finally, the jury heard testimony from respondent’s
sponsors in the M–2 program, Fred and Beverly Haro.
The Haros described meeting respondent and their experi
ences with him. See generally id., at 99–104; 110–112.
They also testified about how close they had grown to
respondent and about respondent’s embrace of religion.
Id., at 101–102; 112–113.
Taken as a whole, the sentencing testimony supports
three conclusions: first, excepting questions concerning the
sincerity of respondent’s religious convictions, there was
no significant dispute about the credibility of the wit
nesses; second, little if any of the testimony extenuated
the severity of respondent’s crime; and third, the testi
mony afforded the jury a principled basis for imposing a
sentence other than death.
II
The prosecutor began his closing argument at the pen
alty phase by describing “th[e] listing of aggravating and
mitigating circumstances” and instructing the jury that it
must “weigh one against the other.” App. 148. While he
observed that “there is a proper place for sympathy and
passion,” ibid., the prosecutor emphasized that the jury
could only consider “the kind of sympathy the instruction
tells you to consider [i.e., sympathy that] naturally arises
or properly arises from the factors in aggravation and
mitigation.” Id., at 149 (emphasis added). He repeated to
the jury that its duty was to “simpl[y] weig[h]” certain
factors that the judge “will tell you that you may take into
8 AYERS v. BELMONTES

STEVENS, J., dissenting

account,” id., at 150–151, and he went through those listed
factors one by one, carefully discussing the evidence that
supported each factor, id., at 151–157.
When the prosecutor turned to factor (k), he directly
addressed the theory “that the defendant’s religious ex
perience is within that catchall that relates to the defen
dant at the time he committed the crime, extenuates the
gravity of the crime.” Id., at 154. The prosecutor ex
pressed doubt that the jury could consider the evidence at
all, stating “I’m not sure it really fits in there. I’m not
sure it really fits in any of them. But I think it appears to
be a proper subject of consideration.” Ibid. And again,
after discussing the evidence supporting respondent’s
religious experience, the prosecutor questioned: “[I]s a
religious awakening a basis for determining penalty?
That’s really the issue, how much does that weigh, or does
it weigh on one side or the other.” Id., at 155. Ultimately,
the prosecutor concluded: “I suppose you can say it would
be appropriate because—in this fashion: The defendant
may be of value to the community later. . . . And I think
that value to the community is something that you have to
weigh in. There’s something to that.” Ibid. But immedi
ately thereafter, the prosecutor told the jury:
“On the other hand, the fact that someone has relig
ion as opposed to someone doesn’t should be no
grounds for either giving or withholding life. . . . So if
he says he has religion, does he deserve the other
penalty, life? I don’t think that that should be an in
fluencing factor at all in that respect. I don’t think the
law contemplates that and I don’t think it’s right.”
Ibid. (emphasis added).
In conclusion, the prosecutor described the circumstances
of the crime and asserted that “[a] dreadful crime requires
a dreadful penalty . . . .” Id., at 160.
Following the prosecutor’s closing argument, the trial
 Cite as: 549 U. S. ____ (2006) 9

STEVENS, J., dissenting

judge allowed respondent to address the jury directly.
Respondent again stated that he could not use his child
hood as a crutch to explain his mistakes, and he said that
his Christianity, too, could not be used as a crutch. Id., at
162. Respondent then asked to keep his life, explaining
that he understood that he had to pay for the victim’s
death, but that he wanted the opportunity to try to im
prove himself in the future. Id., at 163.
Respondent’s attorney, John Schick, then addressed the
jury. He made no effort to persuade the jurors that the
mitigating evidence somehow extenuated the severity of
the crime. On the contrary, he said “I’m not going to
insult you by telling you I think [the mitigating evidence]
excuses in any way what happened here. That is not the
reason I asked these people to come in.” Id., at 166. In
stead, he argued that respondent might be able to make a
positive contribution in a prison environment. He spoke
about the way that respondent improved after he met
Beverly and Fred Haro and about the way that respon
dent’s religion shaped him, observing that religion plays a
“very, very vital function . . . in anybody’s life.” Ibid. But
Schick took care to emphasize that religion “does not
excuse” the murder; rather, the point of that mitigating
evidence was to let the jury “know something about the
man.” Id., at 167, 166. He admitted that respondent
“cannot make it on the outside,” id., at 167, recognized
that respondent needed to be punished, and asked that the
jury impose life in prison, a punishment “that has mean
ing, that has teeth in it . . . .” Id., at 169. Critically,
Schick contended that life in prison was an appropriate
sentence because respondent could, if given the chance,
“contribute something in whatever way he can.” Id., at
170.
In sum, both counsel agreed that none of the mitigating
evidence could detract from the gravity of the crime, and
defense counsel even insisted that it would “insult” the
10 AYERS v. BELMONTES

STEVENS, J., dissenting

jury to suggest that the mitigating evidence “excuses in
any way what happened.” Id., at 166.
III
At a conference on jury instructions with the two coun
sel, the trial judge plainly indicated that he believed that
factor (k) circumscribed the mitigating evidence the jury
could consider. The judge lifted the principal jury instruc
tions verbatim from 7 of the 11 traditional sentencing
factors set forth in the statute, App. 184, but he refused
defense counsel’s request to give the jury a separate list of
potential mitigating factors, id., at 142. Among those
requested were two that specifically instructed the jury to
consider respondent’s ability to perform constructive work
in prison and to live in confinement without acts of vio
lence. See Brief for Respondent 5, n. 1. Those instructions
would have been entirely proper—indeed, probably man
dated—under our holding in Skipper. But the prosecutor,
not having the benefit of Skipper, argued to the judge that
“none [of the proposed mitigating instructions] here . . .
relates to circumstances concerning the crime. I can’t
conceal the fact that I think that is the determinative
factor in this case.” App. 142. Agreeing, the judge refused
to include the mitigating instructions, making the aston
ishing statement that the instructions already “seem to be
a little over-laden with the factors in mitigation rather
than in aggravation.” Ibid.
Of particular importance, the judge modified defense
counsel’s request that the jury be told that the instruc
tions did not contain an exhaustive list of mitigating
factors. Id., at 141. While he did give such an instruction,
ante, at 12, he refused to include the following requested
reference to nonstatutory factors: “ ‘You may also consider
any other circumstances [relating to the case or the defen
dant, Mr. Belmontes,] as reasons for not imposing the
death sentence.’ ” Brief for Respondent 25–26; contra App.
 Cite as: 549 U. S. ____ (2006) 11

STEVENS, J., dissenting

186. The judge thus expressly declined to invite the jury
to weigh “potentially infinite mitigators,” contrary to the
Court’s assumption today, see ante, at 13. A more accu
rate summary of his rulings is that the jury could weigh
nonstatutory circumstances—but only if they extenuated
the severity of respondent’s offense.
IV
The next morning, the trial judge gave the jurors their
instructions. He opened with the unyielding admonition
that “[y]ou must accept and follow the rules of law as I
state them to you,” App. 175, and explained that he was
required to read the instructions aloud even though they
would have a written copy available during their delibera
tions, ibid.
After reading a set of boilerplate instructions, id., at
176–183, the judge turned to the subject of “determining
which penalty is to be imposed on the defendant,” id., at
183. He told the jury to “consider all of the evidence . . .
except as you may be hereafter instructed,” ibid. (emphasis
added), and then stated: “You shall consider, take into
account and be guided by the following factors, if applica
ble.” Id., at 183–184. He then proceeded to repeat verba
tim 7 of the 11 factors set forth in the statute. Id., at 184.
Except for the reference to the “age of the defendant at the
time of the crime,” ibid., every one of those factors related
to the severity of the crime itself. See n. 1, supra. The
last of them, the factor (k) instruction, focused the jury’s
attention on any circumstance that “extenuates the grav
ity of the crime even though it is not a legal excuse for the
crime.” Ibid. No factor permitted the jury to consider
“any other ‘aspect of [the] defendant’s character or record
. . . that the defendant proffers as a basis for a sentence
less than death.’ ” Easley, 34 Cal. 3d, at 878, n. 10, 671
P. 2d, at 826, n. 10 (citing Lockett, 438 U. S., at 604).
Emphasizing the importance of the listing of aggravat
12 AYERS v. BELMONTES

STEVENS, J., dissenting

ing and mitigating circumstances, the judge next in
structed the jury that it “shall consider, take into account
and be guided by the applicable factors of aggravating and
mitigating circumstances upon which you have been in
structed.” App. 185 (emphasis added). In other words, in
reaching its decision, the jury was to consider each of the
“applicable factors”—here, the seven factors the judge just
finished reading—and no others.
As the Court points out, ante, at 13, the judge did tell
the jury that “the mitigating circumstances which I have
read for your consideration are given to you merely as
examples of some of the factors that you may take into
account as reasons for deciding not to impose . . . a death
sentence . . . .” App. 186. But immediately afterwards, he
instructed the jury to “pay careful attention to each of
these factors. Any one of them standing alone may support
a decision that death is not the appropriate punishment in
this case.” Ibid. (emphasis added). Since none of “these
factors” (save for the age of the defendant) encompassed
any mitigating circumstance unrelated to the severity of
the crime, the most natural reading of the instruction is
that any mitigating factor that lessens the severity of the
offense may support a sentence other than death. On this
view, any other mitigating circumstance is simply irrele
vant to (in the prosecutor’s words) the “simple weighing”
the jury was tasked with performing. Id., at 150.
V
Questions asked by at least six different jurors during
almost two full days of deliberation gave the judge an
ample opportunity to clarify that the testimony offered on
behalf of respondent, if credited by the jury, provided a
permissible basis for imposing a sentence other than
death. Far from eliminating their obvious confusion, his
responses cemented the impression that the jurors’ lone
duty was to weigh specified, limited statutory factors
 Cite as: 549 U. S. ____ (2006) 13

STEVENS, J., dissenting

against each other.
After a lunch break, the judge reconvened the jury to
answer a question that does not appear in the record; in
response, the judge merely reread instructions telling the
jury that it “must agree, if [it] can” and that it “shall con
sider, take into account and be guided by the applicable
factors of aggravating and mitigating circumstances upon
which you have been instructed.” App. 185, 188–189 (em
phasis added). Because all of those factors were tradi
tional sentencing factors, and because none of them per
mitted consideration of Skipper-type mitigating evidence,
the judge’s response was the functional equivalent of yet
another admonition to disregard most of respondent’s
evidence.
After a colloquy between the judge and four different
jurors (Hailstone, Wilson, Norton, and Huckabay) about
the likelihood of reaching a unanimous verdict,3 other
jurors asked the judge a series of questions reflecting a
concern about whether it was proper to consider aggravat
ing or mitigating circumstances other than those specifi
——————
3 “JUROR HAILSTONE: If we can’t, Judge, what happens?
“THE COURT: I can’t tell you that.
“JUROR WILSON: That is what we wanted to know.
“THE COURT: Okay. I know what will happen, but I can’t tell you
what will happen.
“MR. SCHICK: Maybe we should inquire whether the jury could
reach a verdict.
“THE COURT: Do you think, Mr. Norton, you will be able to make a
decision in this matter?
“JUROR HAILSTONE: Not the way it is going.
“JUROR NORTON: That is tough, yes.
“THE COURT: Do you think if I allow you to continue to discuss the
matter and for you to go over the instructions again with one another,
that the possibility of making a decision is there?
“JUROR NORTON: I believe there is a possibility.
“JUROR HUCKABAY: We did need more time.
“THE COURT: I think so. I think you need more time.” App. 190–
191.
14 AYERS v. BELMONTES

STEVENS, J., dissenting

cally listed in his instructions:
“JUROR HERN: The statement about the aggrava
tion and mitigation of the circumstances, now, that
was the listing?
“THE COURT: That was the listing, yes, ma’am.
“JUROR HERN: Of those certain factors we were to
decide one or the other and then balance the sheet?
“THE COURT: That is right. It is a balancing proc
ess. Mr. Meyer?
“JUROR MEYER: A specific question, would this be
an either/or situation, not a one, if you cannot the
other?
“THE COURT: No. It is not that.
“JUROR MEYER: It is an either/or situation?
“THE COURT: Exactly. If you can make that ei
ther/or decision. If you cannot, then I will discharge
you.
“JUROR HAILSTONE: Could I ask a question? I
don’t know if it is permissible. Is it possible that he
could have psychiatric treatment during this time?
“THE COURT: That is something you cannot consider
in making your decision.” App. 191.
The judge’s responses strongly suggest that the “list
ing”—the listed statutory factors—was all that the jury
could properly consider when “balanc[ing] the sheet.” See
n. 1, supra. But it is difficult, if not impossible, to see how
evidence relating to future conduct even arguably “ex
tenuate[d] the gravity of the crime”4 under factor (k), and
——————
4 Skipper v. South Carolina, 476 U. S. 1, 4 (1986) (plurality opinion),

recognized that a defendant’s potential good behavior in the future
would not relate to his “culpability for the crime he committed.” Even the
concurrence agreed: “Almost by definition,” it reasoned, a prisoner’s
good behavior “neither excuses the defendant’s crime nor reduces his
responsibility for its commission.” Id., at 12 (Powell, J., concurring in
judgment).
 Cite as: 549 U. S. ____ (2006) 15

STEVENS, J., dissenting

none of those listed factors gave the jury the chance to
consider whether the respondent might redeem himself in
prison. Cf. Brown v. Payton, 544 U. S. 133, 157 (2005)
(SOUTER, J., dissenting) (“[I]t would be more than a
stretch to say that the seriousness of the crime itself is
affected by a defendant’s subsequent experience”). And
rather than inviting an open-ended review of mitigating
factors that would include consideration of the defendant’s
possible future behavior in prison, the judge’s answers
emphasized the constraints on the “either/or” decision the
jurors had to make.5
The arguments of counsel, the actual instructions to the
jury, and this colloquy all support the conclusion that the
jurors understood their task was to run through the listed
statutory factors and weigh them against each other to
determine whether respondent should be sentenced to
death. Very little of respondent’s evidence, however, even
arguably “extenuate[d] the gravity of the crime.” In my
judgment, it is for that reason much more likely than not
that the jury believed that the law forbade it from giving
that evidence any weight at all. The Court of Appeals
therefore correctly set aside respondent’s death sentence.
See Boyde v. California, 494 U. S. 370, 380 (1990) (plural
ity opinion) (requiring that a defendant show only that
“there is a reasonable likelihood that the jury has applied
the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence”).

——————
5 When Juror Hailstone asked the judge about a particular piece of

forward-looking evidence—the possibility that respondent would get
psychiatric treatment in prison—the judge told the jury that it could
not consider that evidence in making its decision. The judge’s answer,
while legally correct, lent further support to the conclusion that re
spondent’s future conduct in a structured prison environment was not
relevant because it did not fall within any of the listed factors.
16 AYERS v. BELMONTES

STEVENS, J., dissenting

VI
Nothing in the Court’s opinion in Boyde upsets my view
that respondent’s death sentence cannot stand. Over the
dissent of four Justices, the Court in Boyde both adopted a
new “legal standard for reviewing jury instructions
claimed to restrict impermissibly a jury’s consideration of
relevant evidence,” 494 U. S., at 378, and approved a
blatantly atextual interpretation of the unadorned factor
(k) instruction, id., at 382, and n. 5. Applying its new
standard and its dubious reading of factor (k), the Court
held that there was “not a reasonable likelihood that
Boyde’s jurors interpreted the trial court’s instructions to
prevent consideration of mitigating evidence of back
ground and character.” Id., at 381.
The Court rejected Boyde’s argument that factor (k)
made it impossible for the jury to consider testimony that
Boyde had won a prize for dance choreography while in
prison, which Boyde argued was Skipper-type evidence
relating to whether “he could lead a useful life behind
bars,” 494 U. S., at 382, n. 5. But the Court did not hold or
suggest that factor (k) allowed for the consideration of
Skipper-type evidence. Instead, the Court found that the
evidence of his dance choreography talents was presented
as part of his “overall strategy to portray himself as less
culpable than other defendants due to his disadvantaged
background and his character strengths,” ibid. (emphasis
added), and therefore fell within the ambit of factor (k).
Thus, although the Boyde opinion does not state so explic
itly, it assumes that the factor (k) instruction would not
permit the jury to consider Skipper-type “evidence of
postcrime good prison behavior to show that [a defendant]
would not pose a danger to the prison community if sen
tenced to life imprisonment rather than death.” Ibid.; see
also Skipper, 476 U. S., at 4 (recognizing that inferences
regarding a defendant’s “probable future conduct if sen
tenced to life in prison . . . would not relate specifically to
 Cite as: 549 U. S. ____ (2006) 17

STEVENS, J., dissenting

[the defendant’s] culpability for the crime he committed”);
Payton, 544 U. S., at 164 (SOUTER, J., dissenting) (“Boyde
did not purport to hold that factor (k) naturally called
for consideration of postcrime changes of fundamental
views”).
Here, respondent contends that there is a reasonable
likelihood that the judge’s instructions prevented the jury
from considering precrime, forward-looking mitigation
evidence regarding the possibility that he would lead a
constructive life in a prison setting. Not only does the
Court’s opinion in Boyde fail to support the improbable
argument that respondent’s mitigating evidence falls
within factor (k)’s purview, but its reasoning is entirely
consistent with the Court of Appeals’ contrary conclusion.
Similarly, the Court’s recent decision in Payton has
little bearing here. In Payton, we granted certiorari to
decide whether the Ninth Circuit’s decision affirming the
District Court’s grant of habeas relief “was contrary to the
limits on federal habeas review imposed by 28 U. S. C.
§2254(d).” 544 U. S., at 136. In concluding that it was,
the Court relied heavily on the deferential standard of
habeas review established by the Antiterrorism and Effec
tive Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214.
See 544 U. S., at 141. And JUSTICE BREYER specifically
stated that he only joined the five-Justice majority be
cause “this is a case in which Congress’ instruction to
defer to the reasonable conclusions of state-court judges
makes a critical difference,” id., at 148 (concurring opin
ion), explaining that, were he a California state judge, he
“would likely hold that Payton’s penalty-phase proceed
ings violated the Eighth Amendment [because] there
might well have been a reasonable likelihood that Payton’s
jury interpreted factor (k) in a way that prevented it from
considering constitutionally relevant mitigating evi
dence—namely, evidence of his postcrime religious conver
sion,” ibid. (citation, alteration, and internal quotation
18 AYERS v. BELMONTES

STEVENS, J., dissenting

marks omitted). The fact that Payton was a case about
deference under AEDPA, rather than about a proper
understanding of the scope of factor (k), is cause enough to
conclude that it does not mandate any specific outcome
here.
Indeed, given that respondent’s trial occurred the same
year and involved the same jury instructions as Payton’s,
compare 544 U. S., at 156 (“ ‘[Y]ou shall consider all of the
evidence which has been received during any part of the
trial in this case, except as you may be hereafter in
structed’ ”) (SOUTER, J., dissenting), with App. 183 (same),
and because AEDPA does not apply to respondent’s case,
there are persuasive reasons for concluding that JUSTICE
SOUTER’s powerful reasoning in Payton, rather than the
majority’s deferential review of a California court’s opin
ion, should guide our decision. In his dissenting opinion,
JUSTICE SOUTER pointed out that Payton’s trial had oc
curred both before the California Supreme Court had
directed trial judges to supplement the factor (k) instruc
tion and before the legislature had amended it. See 544
U. S., at 158. Without those changes, he correctly con
cluded, “any claim that factor (k) called for consideration
of a defendant’s personal development in the wake of his
crime was simply at odds with common attitudes and the
English language.” Id., at 158–159.
Moreover, Payton did not deal with a record that dis
closes actual confusion among jurors, as this record does.
See supra, at 12–15. Nor did it involve a defense attorney
who, bolstering the prosecutor’s claim that factor (k) did
not allow the jury to consider respondent’s religious con
version, refused to “insult” the jury “by telling you I think
[the mitigating evidence] excuses in any way what hap
pened here,” App. 166. Therefore, even ignoring its sig
nificantly different procedural posture, Payton, like Boyde,
falls far short of compelling the result that the Court
reaches today.
 Cite as: 549 U. S. ____ (2006) 19

STEVENS, J., dissenting

VII
Instead of accepting that lay jurors would almost cer
tainly give the words “circumstance which extenuates the
gravity of the crime” their ordinary meaning, the Court
insists that they would have disregarded their instructions
and considered evidence that had nothing whatsoever to
do with the crime. This conclusion seems to me to rest on
an assumption that the jury had an uncanny ability to
predict that future opinions would interpret factor (k) to
mean something that neither the judge nor the lawyers
thought it meant. Surely the more natural inference is that
the jury followed its instructions. See Greer v. Miller, 483
U. S. 756, 766, n. 8 (1987) (plurality opinion) (describing our
“presumption” that juries follow instructions).
The Court’s highly technical parsing of factor (k) de
pends on linguistic distinctions which would only occur to
trained lawyers. See, e.g., ante, at 11 (calling attention to
the “dichotomy within factor (k) . . . between a legal excuse
and an extenuating circumstance”). And even the lawyers
are confused. The prosecutor in Payton believed that
“factor (k) d[oes] not permit consideration of postcrime
rehabilitation evidence.” Ante, at 5. While the majority
now blithely characterizes this view as “incorrec[t],” ibid.,
it is the natural reading of factor (k), and one that jurors
would have been likely to accept. Similarly, present-day
counsel for the State of California expressed confusion at
oral argument as to whether it would have been constitu
tional for the trial judge to instruct the jury that it could not
consider any mitigating evidence unless it extenuated the
gravity of the crime, see Tr. of Oral Arg. 8–9 (retreating
from the statement that “[i]t would appear not to be” consti
tutional). The Court cannot seriously insist that a group of
12 laypersons had such command of constitutional law that,
anticipating Skipper, they took into account evidence out
side the ambit of their jury instructions.
The Court also apparently believes that when the prose
20 AYERS v. BELMONTES

STEVENS, J., dissenting

cutor in this case suggested that factor (k) meant exactly
what it said, supra, at 8, the jury would have taken that
as merely a comment on respondent’s credibility, ante, at
9. But this rests on a clear misreading of the record.
Although the prosecutor did argue that respondent lacked
sincere religious convictions, he also suggested quite
powerfully that the law did not permit the jury to consider
those convictions, however sincerely held. See App. 155 (“I
don’t think the law contemplates that and I don’t think it’s
right” (emphasis added)). Nor is there any support for the
Court’s surprising and inherently contradictory view that
while the prosecutor here “commented that the law did not
contemplate jury consideration of respondent’s religious
conversion,” ante, at 10, “[n]othing the prosecutor said
would have convinced the jury that it was forbidden from
even considering respondent’s religious conversion,” ibid.
(emphasis added).
Admittedly, as the Court points out, there is a distinc
tion between limiting the jury’s consideration “to circum
stances of the crime” that extenuate its severity, and
limiting that consideration to “any other circumstance that
might excuse the crime,” see ante, at 7. It is highly
unlikely, however, that jurors would note that subtle
distinction, and even more unlikely that they would con
sider it significant. Both interpretations of the phrase
focus the jury’s attention on the crime, and neither in
cludes the evidence at issue in Skipper, which “[a]lmost by
definition . . . neither excuses the defendant’s crime nor
reduces his responsibility for its commission.” 476 U. S.,
at 12 (Powell, J., concurring in judgment). Read however
generously, the factor (k) limitation remains unconstitu
tional.
The Court makes a similarly unpersuasive argument
based on the dubious premise that a juror would under
stand “remorse” to be a species of postcrime evidence that
serves to lessen or excuse the crime itself. Even if that
 Cite as: 549 U. S. ____ (2006) 21

STEVENS, J., dissenting

were true, it would not follow that jurors could somehow
divine that respondent’s evidence of a capacity to redeem
himself would both “extenuate his offense and render him
less deserving of a death sentence.” Ante, at 7.6
VIII
Unless the jurors who imposed the death sentence
somehow guessed at the breadth of the rule first an
nounced in Lockett, that sentence was the product of an
unconstitutional proceeding. Ironically, both Chief Justice
Burger (who wrote the plurality opinion in Lockett) and
Justice Powell (who joined it) understood the Lockett rule
to extend only to evidence “that lessens the defendant’s
culpability for the crime.” Skipper, 476 U. S., at 12 (Pow
ell, J., joined by Burger, C. J., and Rehnquist, J., concur
ring in judgment). Given that the authors of Lockett
themselves disagreed as to its scope, I am not as sanguine
as the Court that the lay members of the jury somehow
knew, notwithstanding clear jury instructions, that the
testimony presented at the sentencing phase of respon
dent’s trial could be part of the “simple weighing” the jury
was supposed to undertake.
When the trial judge told the jurors to consider all the
evidence “except as you may be hereinafter instructed,”
App. 183, he directed them to limit their consideration to
the traditional sentencing factors set forth in the statute.
When the prosecutor told the jurors that “I don’t think the
law contemplates” that respondent’s religion lessened the
——————
6 In response to the majority’s suggestion that this case may be in

consistent with Johnson v. Texas, 509 U. S. 350 (1993), ante, at 16, I
note only that Johnson addressed a very different question, namely,
whether a jury considering future dangerousness could give adequate
weight to a capital defendant’s youth. Whatever connection may exist
between a defendant’s youth and his future dangerousness, there is no
connection whatsoever between respondent’s evidence that he was
capable of redemption and a “circumstance which extenuates the
gravity of the crime,” Cal. Penal Code §190.3(k) (West 1988).
22 AYERS v. BELMONTES

STEVENS, J., dissenting

seriousness of respondent’s offense, id., at 155, he rein
forced the impression that the jury should confine its
deliberations to the listing. And once defense counsel
agreed with the prosecutor, saying that “I’m not going to
insult you by telling you I think [the mitigating evidence]
excuses in any way what happened here,” id., at 166,
surely at least some of the jurors would have doubted the
propriety of speculating about respondent’s future conduct
in prison as a basis for imposing a sentence less than
death.
The Court today heaps speculation on speculation to
reach the strange conclusion, out of step with our case law,
that a properly instructed jury disregarded its instructions
and considered evidence that fell outside the narrow con
fines of factor (k). Holding to the contrary, the Court
insists, would reduce two days of sentencing testimony to
“a virtual charade,” ante, at 5 (internal quotation marks
omitted)—but in so concluding the Court necessarily finds
that the judge’s instructions were themselves such a “cha
rade” that the jury paid them no heed. I simply cannot
believe that the jurors took it upon themselves to consider
testimony they were all but told they were forbidden from
considering; in my view, they must at the very least have
been confused as to whether the evidence could appropri
ately be considered. That confusion has created a risk of
error sufficient to warrant relief for a man who has spent
more than half his life on death row. Cf. Lackey v. Texas,
514 U. S. 1045 (1995) (STEVENS, J., respecting denial of
certiorari). The incremental value to California of carry
ing out a death sentence at this late date is far outweighed
by the interest in maintaining confidence in the fairness of
any proceeding that results in a State’s decision to take
the life of one of its citizens. See Gardner v. Florida, 430
U. S. 349, 358 (1977) (plurality opinion).
Accordingly, I respectfully dissent.