I write separately to underscore several significant errors in the penalty phase proceedings which also require reversal of the penalty phase verdict.
I.
The penalty jury was informed that in determining the appropriate penalty, it could consider “[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” (Former CALJIC No. 8.88.1, see current CALJIC No. 8.84.2.) This instruction, based on former Penal Code section 190.3, subdivision (j) (now (k)), was not adequate to meet the demands of Lockett v. Ohio (1978) 438 U.S. 586, 605 [57 L.Ed.2d 973, 990, 98 S.Ct. 2954] and Eddings v. Oklahoma (1982) 455 U.S. 104 [71 L.Ed.2d 1, 102 S.Ct. 869], since it failed to tell the jurors that they were free to give independent mitigating weight to those aspects of appellant’s character or record which did not pertain to the crime. Such an instruction is constitutionally required. (See People v. Frank (1985) 38 Cal.3d 711, 747-755 [218 Cal.Rptr. 801, 700 P.2d 415] (conc. & dis. opn. of Bird, C. J.); cf. People v. Lanphear (1984) 36 Cal.3d 163, 167-168 [203 Cal.Rptr. 122, 680 P.2d 1081]; People v. Easley (1983) 34 Cal.3d 858, 878-879 [196 Cal.Rptr. 309, 671 P.2d 813].)
In the present case, Frierson offered evidence of his stable family background, of his mother’s devotion to him, and of her unsuccessful efforts to find help for his drug problem. Apparently his mother had repeatedly tried to obtain psychiatric help for him, but the public clinics had long waiting lists and serious cases ahead of him. She could not afford private help. She had visited him regularly while he was at the California Youth Authority. *821When he was released at the age of 18, he returned to his home. He worked for his cousin’s clothing business and later for his mother’s business. He was still living at home part of the time when he was arrested.
The factor (j) instruction was not adequate to tell the jury that it could consider this evidence. Nothing else in the jury instructions communicated this message. An accompanying instruction, which directed the jurors to “consider, take into account and be guided by the . . . factors [listed in section 190.3], if applicable” (former CALJIC No. 8.88.1) suggests strongly that the jurors understood that they were restricted to the statutory list. This “ambiguity concerning the factors actually considered by the [sentencer]” (Eddings v. Oklahoma, supra, 455 U.S. 104, 119 [71 L.Ed.2d 1, 14] (conc. opn. of O’Connor, J.)) compels a reversal of the judgment of death.
II.
At the penalty phase, the prosecution introduced evidence of two robberies, although Frierson had never been accused or convicted of these offenses. This evidence was offered in support of the statutory aggravating factor of “[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the expressed or implied threat to use force or violence.” (Former Pen. Code, § 190.3, subd. (b).)
As this court has recognized, a jury may not consider evidence of other crimes as aggravating circumstances unless it has first found that these crimes have been proven beyond a reasonable doubt. (People v. Robertson (1982) 33 Cal.3d 21, 53-54 [188 Cal.Rptr. 77, 655 P.2d 279].) Although the trial court apparently made an effort to instruct Frierson’s jury on this reasonable doubt standard,1 two errors in the manner in which the “other crimes” evidence was presented to the jury deprived appellant of a fair penalty trial.
First, the jury which “convicted” appellant beyond a reasonable doubt of these robberies was the jury which had just found him guilty of first degree murder with special circumstances. This alone violated his right to due process on the robbery offenses. A jury which had just convicted him of a capital crime could not have been an impartial fact finder on the truth of these other charges. Such a jury would have a very strong tendency—indeed, would be almost compelled—to find him guilty of the relatively less *822serious robberies once it had heard all the guilt phase evidence showing him to be a person who commits first degree murders. This evidence should not have been presented to the jury at all until the robberies had been found true beyond a reasonable doubt by an impartial fact finder.
Second, the beyond-a-reasonable-doubt standard of proof of other crimes implies a requirement that the jury’s verdict be unanimous. The purpose of the standard is to act as a hedge against hasty or ill-considered death penalty decisions. The standard obviously loses its effectiveness if we do not require jury unanimity. Yet, nothing in the instruction which was given to Frier-son’s jury told the jurors that they had to agree unanimously that he was guilty beyond a reasonable doubt of the robberies before they could consider them as factors in aggravation.
Unfortunately, the CALJIC instruction patterned after this court’s Robertson opinion omits any requirement of a unanimity finding on the truth of other criminal activity.2 That instruction is, in my view, incompatible with the demands of due process.
III.
These errors were significant and require a new penalty phase, even in the absence of the other errors.3 (People v. Robertson, supra, 33 Cal.3d at p. 54.) On retrial, the court would be well-advised to give the new CALJIC instruction fashioned after Easley and to require a separate jury to determine unanimously the truth of the other crimes evidence beyond a reasonable doubt before permitting that evidence to be considered by the penalty phase jury.
The record indicates that the jury was instructed to consider “[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the expressed or implied threat to use force or violence, which has been proved beyond a reasonable doubt.” (CALJIC No. 8.88.1(b), as modified.)
CALJIC No. 8.84.1.2 (1983 New) states: “Evidence has been introduced for the purpose of showing that the defendant [_] has committed the following criminal [act[s]] [activity]: [_] which involved [the express or implied use of force or violence] [or] [the threat of force or violence]. Before you may consider any of such criminal [act[s]] [activity] as an aggravating circumstance in this case, you must first be satisfied beyond a reasonable doubt that the defendant [_] did in fact commit such criminal [act[s]] [activity]. You may not consider any evidence of any other criminal [act[s]] [activity] as an aggravating circumstance. ”
I concur in the reversal of the special circumstance findings.