concurring and dissenting.
“On May 31, 1979, about 1 p.m., the body of Eleanore Frances Buchanan was discovered in the grass near a cul-de-sac off Pine Valley Road, near San Diego. Harry Piper noticed it while walking back to his car from target shooting. The body had no head or hands and was clothed only in a bra, underpants, and socks. ... Terry Buchanan, the victim’s husband, testified that his wife had given birth to a baby boy three weeks before her death and that she was still nursing him on May 30, 1979.” People v. Hamilton, 45 Cal.3d 351, 357-58, 247 Cal.Rptr. 31, 753 P.2d 1109 (1988).
For this kidnapping and killing during which Bernard Lee Hamilton brutally took Eleanore Buchanan’s life, Terry Buchanan’s wife, and their son’s mother, Hamilton has been convicted of murder and sentenced to death. I am unable to identify any Constitutional infirmity either in his conviction or his sentence.
I
The Supreme Court has validated the practice of inviting jurors in the penalty phase of a state death penalty case to consider in their deliberations that a sentence of life without possibility of parole is really a sentence of life with possibility of commutation. California v. Ramas, 463 U.S. 992 n. 19, 103 S.Ct. 3446 n. 19, 77 L.Ed.2d 1171 (1993). In approving this practice, the Court specifically determined that a jury instruction containing such information is compatible with the Eighth and Fourteenth Amendments. Notwithstanding the Court’s definitive holding on this issue, the majority conclude that providing a jury with such information in this case violates the Constitution, even though the jury was told to disregard that information in arriving at its verdict, and even though the California Supreme Court has analyzed the effect of the admonition to disregard and concluded that it was effective. In so holding the majority rely on arguments made and rejected in Ramos. I do concur in the majority opinion to the extent that it affirms (1) the district court’s denial of the Rule 60(b) motion, and (2) the district court’s denial of relief on the merits of Hamilton’s claims concerning the validity of the underlying convictions. I respectfully dissent, however, from the majority’s decision to reverse the district court’s denial of habeas relief as to Hamilton’s sentence and to remand with instructions to order a new penalty phase for the petitioner. I do so because I am convinced that the majority opinion exceeds our authority under habeas corpus.
*1167II
A.
My disagreement with the majority’s analysis as to the validity of Hamilton’s death sentence is essentially twofold. First, I believe generally that the majority’s analysis of the disputed commutation instructions is so entangled with concerns about purely state law matters that it trespasses on the Supreme Court’s admonition that “ ‘federal ha-beas corpus relief does not lie for errors of state law.’” Estelle v. McGuire, — U.S. -, -, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990)). The question as I see it is only whether the disputed instruction violated Hamilton’s federal Constitutional rights, particularly his Fourteenth Amendment right to due process of law and his rights under the Eighth Amendment, not whether the Briggs Instruction violated the California Constitution, or whether the instruction was completely accurate as to California’s commutation requirements, or what a twice-convicted felon must do to have his sentence commute ed.
Second, I do not believe the disputed jury instruction did violate any of Hamilton’s federal Constitutional rights. The majority opinion is correct that the disputed instruction in this case is different from the Briggs Instruction approved in Ramos. After studying Ramos, however, I do not believe the differences are Constitutionally significant. This is a classic case of differences being insufficient to create a viable legal distinction. However, even if I start from the majority’s position that there is something possibly distracting about part of the disputed instruction, I am unable to conclude that it infringed on Hamilton’s Constitutional rights.
In summary, I respectfully believe the majority opinion inappropriately magnifies state law technicalities into a federal Constitutional infirmity. Compare Fetterly v. Paskett, 997 F.2d 1295 (9th Cir.1993) (allegation of misapplication of state sentencing law held to raise a federal Constitutional issue).
B.
In Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) the Supreme Court set out the standard by which we evaluate disputed instructions in this context. When an instruction is assailed as ambiguous and subject to an erroneous interpretation, the proper inquiry is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Id. at 380, 110 S.Ct. at 1198 (emphasis added). In so mandating, the Court rejected lesser formulations such as what a reasonable juror “could have” or “would have” done in the shadow of the disputed instruction, as well as whether there was a “ ‘substantial possibility that the jury may have rested its verdict on the “improper ground.” ’ ” Id. at 379, 110 S.Ct. at 1197. Instead, the Court chose a test which Justice Marshall acknowledged in dissent to be “stringent,” albeit unduly so in his judgment. Id. at 387, 110 S.Ct. at 1201 (Marshall, J., dissenting); see also Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973) (“ ‘[I]t must be established not merely that the instruction is undesirable, erroneous, or even “universally condemned,” but that it violated some [Constitutional right].’” (quoted in Estelle v. McGuire, — U.S. -, -, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991); Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974))). In explaining the application of the new test, the Court explicitly repudiated conjecture about the behavior of the jury as a basis for overturning a verdict, evoking the “strong policy against retrials years after the first trial where the claimed error amounts to no more than speculation.” Boyde, 494 U.S. at 380, 110 S.Ct. at 1198.
The Court likened its new test to exacting tests applicable to other inquiries:
In other contexts, we have held that a defendant cannot establish a constitutional violation simply by demonstrating that an alleged trial-related error could or might have affected the jury. To establish that ineffective assistance of counsel violates the Sixth Amendment, for example, a de*1168fendant must show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Deportation of potential defense witnesses does not violate due process unless “there is a reasonable likelihood that the testimony could have affected the judgment of the trier of fact.” And failure of the prosecution to disclose allegedly exculpatory evidence to the defense violates due process “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” To receive a new trial based on newly discovered evidence, a defendant must demonstrate that the evidence would more likely than not lead to a different outcome.
Id. at 380 n. 4, 110 S.Ct. at 1198 n. 4 (citations omitted). These analogies inform our judgment as we perform our task in this case, as does the Court’s statement that “we ‘have defined the category of infractions that violate “fundamental fairness” very narrowly.’ ” Estelle, — U.S. at -, 112 S.Ct. at 482 (quoting Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 674, 107 L.Ed.2d 708 (1990)).
C.
In assessing the effect of a challenged jury instruction, the rule is that it “ ‘may not be judged in artificial isolation, but must be viewed in the context of the overall charge.’ ” Boyde, 494 U.S. at 378, 110 S.Ct. at 1196 (emphasis added) (quoting Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)). The majority opinion looks only at part of the charge. Reading the charge as a whole in light of the record convinces me there is no reasonable likelihood the jury applied the challenged instruction in a way that prevented the consideration of Constitutionally relevant evidence. I set forth in an appendix to this opinion the complete charge to the jury. The following excerpts from the jury instructions, many of which are completely ignored in the majority opinion, convince me that the jury focused on the evidence, the mitigating factors, and the aggravating factors, not some extraneous matter:
In determining which penalty is to be imposed on the defendant, you shall consider all of the evidence which has been received during any part of the trial of this case, (emphasis added)
You shall take into account and be guided by the following factors, if applicable: [followed by a statement of the possible aggravating and mitigating factors in the case].
I have previously read to you the list of aggravating circumstances which the law permits you to consider if you find that any of them is established by the evidence. These are the only aggravating circumstances that you may consider. You are not allowed to take account of any other facts or circumstances as a basis for deciding that the death penalty would be an appropriate punishment in this case. (emphasis added)
Before you consider any fact as an aggravating circumstance, you must find that fact has been established by the evidence beyond a reasonable doubt, (emphasis added)
In order to impose a death sentence, you must be convinced beyond a reasonable doubt that the totality of the aggravating circumstances outweigh the totality of the mitigating circumstances.
You are now instructed, however, that the matter of a possible commutation or modification of sentence is not to be considered by you in determining the punishment for Mr. Hamilton. You must not speculate as to whether such commutation or modification would ever occur. It is not your Junction to decide now whether this man will be suitable for parole at some future date. So far as you are concerned, you are to decide only whether this man shall suffer the death penalty or whether he shall be permitted to remain alive. If upon consideration of the evidence you believe that life imprisonment without possibility of parole is the proper sentence, you must assume that the governor, the Supreme Court, and those officials charged with the operation of our parole system perform their duty in a correct and *1169responsible manner, and that Mr. Hamilton will not be paroled unless he can safely be released into society. It would be a violation of your duty as jurors if you were to fix the penalty at death because of the doubt that the governor and other officials will properly carry out their responsibilities. (emphasis added)
The Supreme Court has already told us that the first two sentences of the disputed instruction do not offend the Constitution. See California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983). The Court could find no Constitutional infirmity in telling jurors that a sentence of life without possibility of parole is really a sentence of “life imprisonment with possibility of commutation.” See id. at 1005 n. 19, 103 S.Ct. at 3455 n. 19. The Court concluded: “[T]he Briggs Instruction does not violate any of the substantive limitations this Court’s precedents have imposed on the capital sentencing process. It does not preclude individualized sentencing determinations or consideration of mitigating factors, nor does it impermissibly inject an element too speculative for the jury’s deliberation.” Id. at 1013, 103 S.Ct. at 3459-60. If telling a jury about a governor’s power to commute or modify a sentence of life without possibility of parole does not violate the Constitution, I do not understand how adding marginal information about what happens under state law to twice-convicted felons and about minimum incarceration time changes the diagnosis. If anything, the added language the majority opinion finds offensive works in Hamilton’s favor when compared to the basic Briggs Instruction because it adds significant legal impediments to any possibility that Hamilton might ever be freed of a life sentence. In this respect, I agree with our respected colleague on the district court. Judge Brewster said in his impressive 93-page opinion: “Most importantly, the modifications agreed to by the parties improved the unmodified Briggs Instruction from the defense perspective. In this regard, it should be noted that the impetus behind the modification came from petitioner’s trial counsel, who was seeking to mitigate the impact of the unmodified Briggs Instruction.” Hamilton v. Vasquez, Nos. 86-2101-B & 90-0291-B, at 79 (S.D.Cal. Aug. 23, 1991) (order denying petitions for writ of habeas corpus) (emphasis added).
There is an interesting twist to this issue. On remand from the United States Supreme Court in the Ramos case, the California Supreme Court held that the Briggs Instruction violated California’s constitution. People v. Ramos, 37 Cal.3d 136, 153, 207 Cal.Rptr. 800, 689 P.2d 430 (1984), cert. denied, 471 U.S. 1119, 105 S.Ct. 2367, 86 L.Ed.2d 266 (1985). In his second appearance before the California Supreme Court, Hamilton then argued on the basis of the new Ramos decision that the use of the now-defunct Briggs Instruction in his case should entitled him.to a new penalty phase trial. Not so, responded Justice Mosk for the same court that had recently rejected the Briggs Instruction. Why? Because language in the disputed instruction in Hamilton’s case, unlike the Briggs Instruction in Ramos, told the jurors not to consider commutation or modification of any life without possibility of parole sentence. In answer to Hamilton’s argument that the admonitory supplemental language did not cure the state law problem created by the now-defunct Briggs Instruction, but rather led the jurors to indulge in irrelevant and improper speculation, the California Supreme Court tendered a good and sufficient answer which the majority opinion rebuffs in its analysis: “The clear meaning of the plain words of the admonition ... refutes this argument.” People v. Hamilton, 45 Cal.3d 351, 375, 247 Cal.Rptr. 31, 753 P.2d 1109 (1988), cert. denied, 488 U.S. 1047, 109 S.Ct. 879, 102 L.Ed.2d 1002 (1989). Not only does this answer make sense on its face, but it is consistent with the longstanding principle neglected in the majority opinion that jurors are presumed to follow admonitory instructions given by the court unless the information they are ordered to disregard posed a “substantial threat” to a defendant’s Constitutional rights. See Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476 (1968). See also Estelle, — U.S. at - -, 112 S.Ct. at 483-84 (relying on limiting language to “guard[ ] against possible misuse of [an] instruction”). Informed by the Supreme Court’s decision and analysis in California v. Ramos, I do not find such a sub*1170stantial threat in this case. The prosecutor’s isolated remark during argument does not change this analysis. I agree with Judge Brewster that the remark was of no moment. See Boyde, 494 U.S. at 384, 110 S.Ct. at 1200 (arguments of counsel do not generally decrease impact of jury instructions).
The opinion of the California Supreme Court notwithstanding, the majority opinion claims the prosecutor requested the jury be told “to consider the Governor’s power of commutation” and Hamilton’s “eligibility] for parole” (emphasis added). This claim is misleading. State law controlling at the time of trial required the judge to give the Briggs Instruction to the jury. The prosecution expressly asked the trial judge to tell the jurors not to consider this subject when determining Hamilton’s punishment. More importantly, however, there is simply no Constitutional infirmity in “inviting capital sentencing juries to consider the commutation power in its sentencing decisions.” Ramos, 463 U.S. at 998 n. 8, 103 S.Ct. at 3451 n. 8. This is not my claim; it is the precise holding of the Supreme Court in Ramos. Footnote 8 of Justice O’Connor’s opinion makes this point irrefutable. Even if the prosecutor had asked the jury to consider the Governor’s commutation power, no federal Constitutional right would have been implicated.
Nevertheless, it is not true, as the majority opinion claims, that “the jury was invited to speculate that the only way it could avoid Hamilton’s likely release was to sentence him to death.” On this point, I respectfully believe the majority opinion simply refuses to acknowledge the full language of the charge.
D.
There is an aspect of this case that may escape my colleagues’ understanding. As Justice Richardson observed in his dissent in People v. Ramos, 30 Cal.3d 553, 180 Cal.Rptr. 266, 639 P.2d 908 (1982), rev’d, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), “jurors already know of the commutation power.” Id., 30 Cal.3d at 604, 180 Cal.Rptr. 266, 639 P.2d 908 (Richardson, J., dissenting). This observation was reiterated by Justice O’Connor in California v. Ramos, 463 U.S. 992, 996 n. 6, 1004 n. 19, 103 S.Ct. 3446, 3451 n. 6, 3455 n. 19, 77 L.Ed.2d 1171 (1983). This perception of public awareness about commutation is both accurate and important in understanding the pivotal issue in this case, and it distinguishes this case from Bru-ton, where the concern was related to confessions and admissions, not matters of common knowledge.
The commutation power was the subject of great public debate in California during the late 1970s, a debate that culminated in a 1978 voter death penalty initiative popularly known as the Briggs Initiative. What happened in this case is simple: the jurors were appropriately told not to consider something they probably all knew about, the Governor’s power to alter a murderer’s sentence. The trial judge, in an apparent attempt to eliminate possible trouble on appeal, wisely tried to eliminate the commutation factor from consideration. This admonition is akin to telling jurors not to use information they may have read in the newspapers in arriving at a verdict, an admonition that occurs daily in our courts. Contrary to the approach taken by the majority here, no one could seriously argue that such an admonition about media publicity invites the jurors to do what they are told not to do. Yet in this context such an argument carries the day.
To reiterate, I agree with the California Supreme Court’s bottom-line conclusion: Any problems with the substance of this instruction were erased by its admonitory component.
E.
There is a strong indicator that my analysis is correct: Hamilton’s counsel consented to the instruction and suggested much of its language. Judge Brewster entered a finding of fact that “the parties reached an agreement on a modified Briggs Instruction.” Hamilton, at 77 (order denying petitions for writ of habeas corpus). The majority opinion admits this fact but ignores its implications. It is difficult to conclude from this record that Hamilton’s counsel, who was on the scene and familiar with the case and the evidence, could have believed this instruction would prevent the jury from giving a rea*1171soned moral response to petitioner’s mitigating evidence, see Perry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989), oí that the instruction would create the risk the death penalty would be imposed despite evidence which would call for a life sentence, see Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978). Why is it so clear to the majority that this instruction spelled doom for Hamilton when it was acceptable to his attorney? This question almost answers itself. The instruction was not threatening to those present at the trial because, and I repeat, the jury was told not to consider the information which is now causing all the trouble. Hamilton’s counsel’s performance in this case was extraordinary. In his findings of facts, Judge Brewster adopted the trial judge’s observation: “Mr. Ryan did an excellent job in a most difficult case with a very, very difficult client.” Hamilton, at 41 (order denying petitions for writ of habeas corpus). The trial judge and the trial lawyers were comfortable with the idea that the jurors would do as told. This should tell us something.
F.
The majority opinion persistently does what Boyde tells us not to do: it speculates at every turn. Moreover, the conclusions the majority draws from its speculation are patently inconsistent with the evidentiary dimensions of the case. The opinion says, “[t]he jury spent three days deliberating in the penalty phase, suggesting that the California jury saw this as a close case.” Why so? Why doesn’t the length of deliberations suggest the jurors were conscientious and careful and that they followed the instructions as a whole rather than jumping to a rash conclusion? Why doesn’t it suggest the jurors did consider the seven mitigating witnesses called by Hamilton?
A close ease? Each juror was convinced beyond a reasonable doubt that death was the proper penalty. This hardly sounds like a close case. Any time twelve jurors each agree on an issue, and do so beyond a reasonable doubt, it “suggests” the prosecutor’s case was overwhelming. This is surely so in the light of all the evidence in the record, especially the atrocities Hamilton committed upon Mrs. Eleanore Buchanan, who was still nursing the baby boy to whom she had given birth just three weeks before Hamilton slaughtered her. Mrs. Buchanan’s severed head and hands — removed with both a saw and a knife — have never been found. The terror she must have suffered after being kidnapped and falling prey to Hamilton is unspeakable. Even to the most hard-bitten observer, Hamilton’s atrocities as demonstrated in the record are monstrous. Against this backdrop, the weak mitigating evidence cited by the majority fades into utter insignificance. In actuality, however, it is impossible for us to know what three days of deliberations signifies, if anything. Thus, I would prefer to ignore altogether the length of the deliberations, rather than use it as the basis for what appears to be a makeweight argument.
Conclusion
Applying Ramos, Boyde and Bruton to this case and to the charge to the jury as a whole convinces me that Hamilton’s federal Constitutional rights were not trammelled by the disputed instruction. The majority’s opinion fails to heed the Supreme Court’s lead in Ramos. In particular, I point to the Supreme Court’s statement that “we find unpersuasive the suggestion that the possible commutation of a life sentence must be held constitutionally irrelevant to the sentencing decision and that it is too speculative an element for the jury’s consideration.” Ramos, 463 U.S. at 1001-02, 103 S.Ct. at 3453-54. All the majority opinion has succeeded in doing is to show what could have done with the disputed instruction, not that the “jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde, 494 U.S. at 380, 110 S.Ct. at 1198 (emphasis added). As I pointed out earlier in this opinion, the “could have” test has been soundly rejected by the Supreme Court.
It is both unnecessary and wrong to use the power of federal habeas corpus to require this case again to go to trial fourteen years after Eleanore Buchanan was butchered. *1172Trg.miH-.nn was entitled to a fair trial, not a perfect one: he got that to which he was entitled. The record convinces me there is no reasonable likelihood the jury applied the challenged instruction in a way that interfered with a Constitutionally proper determination of his penalty. The conclusion of the California Supreme Court on this point is unassailable. Put another way, even assuming actionable error, I do not believe it “‘“had substantial and injurious effect or influence in determining the jury’s verdict.’”” Brecht v. Abrahamson, — U.S. -, -, 113 S.Ct. 1710, 1716, 123 L.Ed.2d 353 (1993) (citations omitted). Hamilton earned this penalty based on (1) his barbaric conduct, (2) the extreme weight of the aggravating factors, and (3) the insignificance of the mitigating factors in his favor. Thus, I respectfully dissent from that part of the majority’s opinion overturning his sentence.
Appendix
The complete charge to the jury in the penalty phase:
The Court: All right. Ladies and gentlemen, at this time I have the instructions for the second phase of these proceedings.
The defendant in this case has been found guilty of murder of the first degree. The charge that the murder was committed under special circumstances has been found to be true. It is the law of this state that the penalty for a defendant found guilty of murder of the first degree shall be death or confinement in the state prison for life without possibility of parole. In any case in which the special circumstances charged in this case have been found to be true. Under the law of this state you must now determine which of said penalties shall be imposed on defendant. In determining which penalty is to be imposed on the defendant, you shall consider all of the evidence which has been received during any part of the trial of this case. You shall take into account and be guided by the following factors, if applicable:.
A.The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true.
B. The presence or absence of criminal activity by the defendant which involves the use or attempted use of force or violence or the expressed or implied threat to use force or violence.
C. The presence or absence of any pri- or 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 expectation for his own conduct.
G. Whether or not the 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 [sic] of intoxication.
I. The age of the defendant at the time of the crime.
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.
In weighing the aggravating and mitigating factors you are not to merely count numbers on either side. You are instructed rather to weigh and consider the factors on each side as a whole.
I have previously read to you the list of aggravating circumstances which the law permits you to consider if you find that any of them is established by the evidence. These are the only aggravating circum*1173stances that you may consider. You are not allowed to take account of any other facts or circumstances as a basis for deciding that the death penalty would be an appropriate punishment in this case.
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 on Mr. Hamilton. But you should not limit your consideration of mitigating circumstances to these specific factors. You may also consider any other circumstances presented as reasons for not imposing the death penalty. Before you consider any fact as an aggravating circumstance, you must find that that fact has been established by the evidence beyond a reasonable doubt. You may not consider any fact as a reason for choosing to impose the death sentence unless you are satisfied beyond a reasonable doubt and to all certainty that that fact is true.
Reasonable doubt is defined as follows: it is not a mere possible doubt because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt.
It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.
In order to impose a death sentence, you must be convinced beyond a reasonable doubt that the totality of the aggravating circumstances outweigh the totality of the mitigating circumstances. If you are not convinced beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances, you must return a verdict of life imprisonment without possibility of parole.
The next couple of instructions deal with robbery and battery, since there was evidence of robbery and battery in the penalty phase of the trial, and so I will give you the definitions of these offenses.
The crime of robbery is the taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of force and fear.
In order to prove the commission of the crime of robbery, each of the following elements must be proved: one, that a person had possession of property of some value, however slight; two, that such property was taken from such person or from his immediate presence; three that such property was taken against the will of such person; four, that the taking was accomplished either by force or violence or by fear or intimidation or by both, and five, that such property was taken with the specific intent permanently to deprive such person of the property.
Now, relative to the subject of battery, every person who willfully and unlawfully uses any force or violence upon the person of another is guilty of battery, a misdemeanor. As used in the foregoing instruction, the words “force” and “violence,” are synonymous and mean any wrongful application or [sic] physical force against the person of another, even though it causes no pain or bodily harm or leaves no mark, and even though only the feelings of such person are injured by the act.
The slightest unlawful touching, if done in an insolent, rude or an angry manner, is sufficient.
It is not necessary that the touching be done in actual anger or with actual malice. It is sufficient if it was unwarranted and unjustifiable.
The touching essential to a battery may be a touching of the person, or the person’s wearing apparel or of something attached to or closely connected with the person.
It is now your duty to determine which of the two penalties, death or confinement in the state prison for life without possibility of parole shall be imposed on Mr. Hamilton.
You are instructed that under the state constitution, a governor is empowered to grant a reprieve, pardon or commutation of a sentence following conviction of a *1174crime. Under this power, a governor may, in the future, commute or modify a sentence of life imprisonment without possibility of parole to a lesser sentence that would include the possibility of parole.
This is subject to the requirement that in the case of any person twice convicted of a felony, a commutation or modification may not be granted absent the written recommendation of at least four justices of the California Supreme Court. Further, a life sentence requires a minimum incarceration of 25 years, less one-third off for good time credit before parole may be considered by the proper authorities.
You are now instructed, however, that the matter of a possible commutation or modification of sentence is not to be considered by you in determining the punishment for Mr. Hamilton. You must not speculate as to whether such commutation or modification would ever occur.
It is not your function to decide now whether this man will be suitable for parole at some future date. So far as you are concerned, you are to decide only whether this man shall suffer the death penalty or whether he shall be permitted to remain alive.
If upon consideration of the evidence you believe that life imprisonment without possibility of parole is the proper sentence, you must assume that the governor, the Supreme Court and those officials charged with the operation of our parole system will perform their duty in a correct and responsible manner, and that Mr. Hamilton will not be paroled unless he can be safely released into society.
It would be a violation of your duty as jurors if you were to fix the penalty at death because of the doubt that the governor and other officials will properly carry out their responsibilities.
After having heard all of the evidence and after having heard and consider [sic] the arguments of counsel, you shall consider and 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 impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without possibility of parole.
You shall now retire and select one of your number to act as foreman, who will preside over your deliberations.
In order to make a determination as to the penalty, all jurors must agree.
Any verdict that you reach must be dated and signed by your foreman on a form that will be provided, and then you shall return with it to this courtroom.
I have two forms which are self-explanatory. One form would provide the penalty would be fixed at death, the other form provides for a penalty of life imprisonment without possibility of parole, and when you have reached a verdict, when all 12 of you have reached a verdict, have the foreman sign and date the verdict and return to this courtroom.