I concur in the judgment insofar as it sets aside defendant’s conviction for possession of a concealable firearm by a convicted felon: defendant was denied his constitutional right to trial by jury, on the underlying charge.
I dissent, however, from the judgment in all other respects. As I shall show, the judgment should be reversed in its entirety—or at the very least it should be vacated as to penalty. Specifically, the convictions for first degree murder and robbery and the dependent findings on the use of a firearm in the murder, the use of a firearm in the robbery, and the special circumstance of felony-murder-robbery, should be set aside for each of two reasons: the trial court (1) erroneously admitted certain testimony by one Daniel Crothers and (2) erroneously instructed on the inference that might be drawn when a person gives a false account of how he acquired possession of stolen, property. Those convictions and findings should at least be vacated for Castro error. (People v. Castro (1985) 38 Cal.3d 301 [211 Cal.Rptr. 719, 696 P.2d 111].) The verdict of death should be set aside because of Deere error (People v. Deere (1985) 41 Cal.3d 353 [222 Cal.Rptr. 13, 710 P.2d 925]) anci also because of Brown error (People v. Brown (1985) 40 Cal.3d 512 [220 Cal.Rptr. 637, 709 P.2d 440], revd. on other grounds sub nom. *1047California v. Brown (1987) 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837]). Finally, the sentence should be vacated since the trial court proceeded erroneously in passing on defendant’s application for modification of the verdict of death.
I
The trial court erred when it ruled admissible, and subsequently admitted, certain testimony by Daniel Crothers: during the summer of 1983 Crothers saw defendant carrying a handgun on five or six occasions; he asked why he carried the weapon; defendant pointed the gun at him and replied, “I’ll waste any mother fucker that screws with me.”
Prior to trial the prosecutor moved in limine for a ruling that Crothers’s testimony was admissible. He argued in substance as follows. Among the issues that would prove material to the People’s case were (1) whether the killing was intentional, (2) whether defendant’s motive was robbery, and (3) in anticipation of an expected defense, whether defendant acted in self-defense. Defendant’s alleged act and statement described in Crothers’s testimony had a tendency to prove that he intended to kill, that his motive was robbery, and that he did not kill in self-defense. The evidence was not barred by Evidence Code section 1101, subdivision (a) (hereafter section 1101(a)), because it was not evidence of character to prove conduct. Nor was it excludable under Evidence Code 352 (hereafter section 352) because it was substantially more probative than prejudicial.
Defendant opposed the motion. He argued that Crothers’s testimony was irrelevant to any material issue, was barred as character evidence by section 1101(a), and was excludable under section 352 as substantially more prejudicial than probative.
At a hearing on the motion, the prosecutor represented that he intended to introduce in his case-in-chief a statement by defendant to Detective Bruce Correll that he killed the victim and intended to do so, but only in self-defense. He also detailed the evidence, other than defendant’s alleged act and statement, that he had available to rebut a claim of self-defense: “Well, during our case in chief the other evidence to negate the defense that will be part of the admissions that have come in would be circumstances around—by the pathologist and the criminalist regarding the placement of the wounds, in particular three wounds in close proximity behind the ear, which we hope to suggest was more of an execution than a self defense, panick [sic] situation, [¶] Further, the trigger pull on the weapon was *1048greatly—was much greater than the normal trigger pull on a five-shot weapon,' and that—again, circumstantial evidence—required real deliberation, premeditation and not a panic self-defense firing blindly at an individual. It was thoughtful, well-aimed, well-deliberated, and essentially the victim was executed.”
The trial court ruled Crothers’s testimony admissible. It expressly rejected defendant's challenge under section 352. It found the probative value of the evidence to be “considerable”: it determined impliedly, if not expressly, that the ¡presence of intent to kill, the nature of defendant’s motive, and the absence of self-defense would be material issues in the People’s case; that the evidence had a tendency to prove those issues; and that it was not merely cumulative to other evidence available for the same purposes. It also found the prejudicial effect of the evidence to be “quite slight”: “This is a very weak statement and act in terms of the amount of prejudice it bears to the defendant on this issue of a prior crime.” Accordingly, it ruled: “Well, it seems clear to me that this evidence that we’re talking about is not merely cumulative, and after having weighed the prejudicial—the undue prejudice that might befall, which I find to be quite slight, to the probative weight of the evidence which I find to be considerable, I find no basis to exclude it under section 352.”
At trial the court admitted Crothers’s testimony. The prosecution did not introduce any statement by defendant relating to self-defense either in its case-in-chief or in rebuttal.1
As stated above, the trial court erred when it ruled Crothers’s testimony admissible and subsequently admitted that testimony at trial.
Section 352 provides that “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
*1049Although the trial court’s discretion under section 352 is broad in the general case, it is narrow when the evidence under challenge involves “other crimes.” Such evidence embraces not only criminal offenses strictly defined but also, it appears, words or deeds—like defendant’s alleged act and statement—that merely reveal a criminal disposition. (See People v. Anderson (1987) 43 Cal.3d 1104, 1136 [240 Cal.Rptr. 585, 742 P.2d 1306].) “[E]vidence of other crimes . . . can be highly prejudicial. . . . [U]nder Evidence Code section 352, the probative value of this evidence must outweigh its prejudicial effect. [Citations.] Since ‘substantial prejudicial effect [is] inherent in [such] evidence,’ uncharged offenses are admissible only if they have substantial probative value. If there is any doubt, the evidence should be excluded.” (People v. Thompson (1980) 27 Cal.3d 303, 318 [165 Cal.Rptr. 289, 611 P.2d 883], fns. omitted & italics in original.)
“Probative value and prejudice obviously are not commodities subject to quantitative measurement. Nonetheless, we may identify some of the guidelines which courts follow in performing the balancing process . . . [under section 352]. The chief elements of probative value are relevance, materiality and necessity, [¶] Before permitting the jury to hear evidence of other offenses the court must ascertain that the evidence (a) ‘tends logically, naturally and by reasonable inference’ to prove the issue upon which it is offered; (b) is offered upon an issue which will ultimately prove to be material to the People’s case; and (c) is not merely cumulative with respect to other evidence which the People may use to prove the same issue.” (People v. Schader (1969) 71 Cal.2d 761, 774-775 [80 Cal.Rptr. 1, 457 P.2d 841], fns. omitted.) By contrast, the chief element of prejudice is the potential to lead a jury to convict the defendant because of his bad character or record and not on the basis of his conduct. (See id. at p. 774; People v. Karis, supra, 46 Cal.3d at p. 638.)
“Evidence of a defendant’s statement regarding possible future criminal conduct in a hypothetical situation”—even if it is not “other crimes” evidence properly so called—“has at least as great a potential for prejudice in suggesting a propensity to commit crime as evidence of other crimes. Therefore, the content of and circumstances in which such statements are made must be carefully examined ... in assessing whether the probative value of the evidence outweighs that potential prejudicial effect.” (People v. Karis, supra, 46 Cal.3d at p. 636.)
In determining whether a trial court has erred in ruling on a matter entrusted to its discretion, a reviewing court must, of course, apply the abuse-of-discretion standard. (E.g., People v. Karis, supra, 46 Cal.3d at *1050p. 637.) That standard calls for deference—but it does not, and cannot, require abdication. In this case, the trial court abused its discretion.
First, the prejudicial effect of Crothers’s testimony was substantial. This is so as a matter of law. The evidence appears to come within the category of “other crimes” broadly construed. In any event, because it relates defendant’s alleged statement regarding possible future criminal conduct in a hypothetical situation, it has at least as great a potential for prejudice as evidence¡ of “other crimes” properly so called. The prejudicial effect of the testimony is also substantial as a matter of fact. The point is proved by the nature of defendant’s alleged act, pointing his gun at Crothers, and by the substance of his alleged statement, “I’ll waste any mother fucker that screws with me.” I recognize that the trial court was of the opposite view. But as explained above, such a view is plainly unsound.
Second, the probative value of Crothers’s testimony was not substantial. As to relevance, the evidence tends to prove only one of the three issues on which it was offered by the prosecution, viz, that defendant killed the victim and did so intentionally. But it does not tend to prove that defendant’s motive was robbery.2 Nor does it tend to prove that defendant did not act in self-defense. Self-defense, of course, is not negated by the presence of intent to kill. Rather, it is precluded by the absence of the various objective and subjective circumstances that justify the killing—which include, for example, an honest and reasonable belief in the apparent peril and the need for defense (People v. Sonier (1952) 113 Cal.App.2d 277, 278 [248 P.2d 155]; see Pen. Code, §§ 197, subd. 3, 198). Neither defendant’s alleged act nor his alleged statement had any bearing on the presence or absence of such circumstances.
Next, it is true that Crothers’s testimony was indeed offered on issues that would ultimately prove to be material to the prosecution’s case—to wit, intent to kill, robbery as motive, and lack of self-defense. But as explained above, the evidence had a tendency to prove only the first.
Finally; as to necessity, Crothers’s testimony was in fact merely cumulative with respect to other evidence available to the prosecution to prove the same issues. On the question whether defendant killed the victim and in*1051tended to do so, the prosecution also had defendant’s statement to Detective Correll that he killed the victim and intended to do so, but only in self-defense. Next, on the question whether defendant’s motive was robbery—on which the testimony was not relevant—the prosecution also had evidence that defendant had taken the victim’s belongings and apparently cleaned the crime scene of items that could have linked him to the incident.3 Lastly, on the question whether defendant acted in self-defense—on which the testimony was not relevant—the prosecution also had, in the prosecutor’s own words, “the placement of the wounds, in particular three wounds in close proximity behind the ear” and the fact that “the trigger pull on the weapon was greatly—was much greater than the normal trigger pull on a five-shot weapon.” I recognize that the trial court determined that the evidence was “not merely cumulative” to other evidence. In view of the foregoing, that determination is plainly unsound.4
I now turn from the fact of error to its consequences. Of course, an erroneous evidentiary ruling such as that here requires reversal if it subjected the defendant to prejudice. (See, e.g., People v. Anderson, supra, 43 Cal.3d at p. 1137.) Generally, prejudice is not presumed but is determined after an examination of the entire cause. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) Prejudice is found when “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error” {ibid.)—or stated differently, when it is reasonably probable the error marginally contributed to the outcome. “A review of our cases reveals that ‘reasonable probability’ as here used . . . mean[s] . . . simply ‘a probability sufficient to undermine confidence in the outcome’ [citation].” (People v. Bell (1989) 49 Cal.3d 502, 559 [262 Cal.Rptr. 1, 778 P.2d 129] (dis. opn. of Mosk, J.).) To my mind, such a probability exists here.
As explained above, the testimony carried within itself potential for substantial prejudicial effect: it presented defendant as a man who was bad and as such unworthy of belief. That effect was magnified by the prosecutor’s comments in summation. In his opening argument he quoted defendant’s *1052alleged statement virtually verbatim: “We also know by a statement from Crothers that he is somewhat of a self-styled gangster. He made the comment to' Crothers—‘Why do you have that gun?’ And he pointed the gun at Crothers and he said, ‘Because’—these are his words, not mine, ‘Because I will waste any mother fucker that screws with me.’ He’s bad, likes to think that he’s a bad man, tough. That’s the kind of defendant we have here.” In his closing argument he again quoted the statement virtually verbatim: “A man who told us, or through the witness said, ‘Why do you carry that gun,’ and again his words: ‘Because I will waste any mother fucker that screws with me.’ [¶] Mr. Lang thinks he’s bad, in colloquial words, bad meaning tough, tough hombre, little gangster. Nobody’s going to mess with me. I’ll waste them.”
Defendant’s credibility was crucial. He was the only eyewitness and the most important witness of any kind to testify for the defense. The question of credibility must be deemed to have been close. To be sure, defendant’s testimony was not proof against challenge and his character for veracity was not sterling. But the tale he told was believable in itself and was presented in a believable manner. The closeness of the question is confirmed by the fact that although the case was simple and straightforward, the jury deliberated two full days and parts of two other days, and requested a rereading of defendant’s testimony in its entirety. (See People v. Woodard (1979) 23 Cal.3d 329, 341 [152 Cal.Rptr. 536, 590 P.2d 391] [remarking that “The issue of guilt in this case was far from open and shut, as evidenced by the sharply conflicting evidence and the nearly six hours of deliberations by the jury before they reached a verdict.”].)
On this record, the error under review is sufficient to undermine confidence in the outcome. Accordingly, I would reverse the judgment.
II
The trial court also erred when it denied a motion defendant made under section 3¡52 to bar the prosecution from impeaching him with certain felony convictions he had suffered in Oregon.
After the prosecution completed its case-in-chief but before the defense made its opening statement, defendant moved to preclude impeachment with convictions in Oregon for robbery in the second degree, escape in the second degree, and—impliedly—unauthorized use of a vehicle; he conceded he could properly be impeached with convictions in that state for burglary in the second degree and forgery in the first degree. The prosecutor opposed the motion. He relied on article I, section 28, subdivision (f), of the Califor*1053nia Constitution (hereafter section 28(f)), which was adopted as part of Proposition 8 at the June 1982 Primary Election and declares in relevant part that “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.”
The trial court denied defendant’s motion: “There’s some room for—there’s a lot of room for discussion as to whether section 28f that was added to the California Constitution that provides any prior felony conviction of any person in any criminal proceeding whether adult or juvenile shall subsequently be used without limitation for purposes of an impeachment or enhancement in any criminal proceeding. [¶] There’s some ambiguity possible in that, but I think the plain meaning of it is that a prior conviction can be used without limit for purposes of impeachment . . . . [¶] There was room for reasonable lawyers and judges to disagree, but to me it’s clear.” Taking the witness stand, defendant admitted the five convictions referred to above.
In People v. Castro, supra, 38 Cal. 3d 301, this court held that “section 28 was not intended to abrogate the traditional and inherent power of the trial court to control the admission of evidence by the exercise of discretion to exclude marginally relevant but prejudicial matter—as, indeed, is provided by Evidence Code section 352.” (Id. at p. 306.) A plurality of the Castro court concluded that under subdivision (f) of the constitutional provision the trial court may admit evidence of a felony conviction to impeach the credibility of a witness if and only if the least adjudicated elements of the underlying felony necessarily involve moral turpitude, i.e., the readiness to do evil. (Id. at pp. 313-317.) The plurality emphasized that admission of a felony conviction that is not inadmissible as a matter of law under the foregoing rule is always subject to the trial court’s discretion under section 352. (Id. at p. 306.)
In People v. Collins (1986) 42 Cal.3d 378 [228 Cal.Rptr. 899, 722 P.2d 173], this court prescribed “the procedure to be followed by appellate courts in applying Castro to cases tried before the date of that decision and still pending before them. The issue is presented in each case in which (1) the defendant was charged with a crime committed on or after June 9, 1982, [the date on which Proposition 8 became effective,] (2) the prosecution proposed to impeach the defendant with proof of one or more prior felony convictions if he testified, (3) the defendant moved for an order excluding those convictions in the exercise of the trial court’s discretion under section 352, and (4) the court denied the motion without exercising its discretion *1054because it deemed itself bound to admit the convictions by section 28(f).” (Id. at p. 389, fns. omitted.)
“The appellate court should first decide whether the prior convictions are (1) admissible or excludable in the trial court’s discretion or (2) inadmissible as a matter of law.” (People v. Collins, supra, 42 Cal.3d at p. 389.) A prior conviction falls into the latter category when, as pertinent here, “it does not necessarily involve moral turpitude.” (Ibid.) “In most instances, accordingly, the appellate court will hold that the trial court committed Castro error in failing to exercise its discretion to admit or exclude the challenged prior convictions [citation], and/or in admitting convictions that are inadmissible as a matter of law [citation].” (Id. at p. 390.)
When, as here, the defendant testified after the trial court’s adverse ruling, “the appellate court should make a preliminary determination of the probable effect of the prior convictions, taken together, on the outcome of the trial.” (People v. Collins, supra, 42 Cal.3d at p. 390.) If it concludes “it is reasonably probable that a result more favorable to the defendant would not have been reached in the absence of the Castro error—i.e., that the admission of the prior convictions did not change the outcome—it should hold the error harmless. In all other cases the question of prejudice turns on whether,the trial court would have admitted or excluded the prior convictions over which it had discretion. In such cases, however, the appellate court should not speculate on how the trial court would have exercised its discretion. Rather, it should reverse the judgment for the limited purpose of remanding the cause to the trial court with directions to exercise its discretion in the matter.” (Id. at p. 391, fn. omitted & italics in original.)
I turn now to the case at bar. It is evident that Castro applies here and that the Collins procedure must be followed. The crimes with which defendant was charged were committed after June 9, 1982; the prosecution proposed to impeach him with his felony convictions if he testified; defendant moved the trial court to bar impeachment in the exercise of its discretion under section 352; and the court denied the motion without exercising its discretion expressly because it deemed itself bound to admit the convictions by section 28(f).
Following the Collins procedure here, I believe that the trial court committed Castro error when it denied defendant’s section 352 motion to bar impeachment with his convictions for robbery in the second degree, escape in the second degree, and unauthorized use of a vehicle.
*1055First, by ruling as it did the trial court allowed introduction for impeachment of the convictions for escape in the second degree and unauthorized use of a vehicle—convictions that were inadmissible as a matter of law.
The least adjudicated elements of escape in the second degree consist of the unauthorized departure from custody. These elements simply do not necessarily involve moral turpitude, i.e., the readiness to do evil. Rather, the most they necessarily involve is disrespect for authority. In United States v. Zimmerman (E.D.Pa. 1947) 71 F.Supp. 534, the court stated with regard to a similar offense under a similar law: “I cannot say that the action of an escaping prisoner involves that element of baseness, vileness or depravity which has been regarded as necessarily inherent in the concept of moral turpitude. On the contrary such action, while mistaken and wrong under these circumstances, does undoubtedly spring from the basic desire of the human being for liberty of action and freedom from restraint.” (Id. at p. 538.)5
The least adjudicated elements of unauthorized use of a vehicle consist of merely the unauthorized use of a vehicle. These elements certainly do not necessarily involve moral turpitude. Rather, the most they necessarily involve is the culpability of a “joyrider.”
Second, by ruling as it did the trial court failed to exercise its discretion to allow or bar introduction for impeachment of the conviction for robbery in the second degree—which is plainly a crime of moral turpitude and hence not inadmissible as a matter of law. As shown above, the failure is manifest on the face of the record.
In this case, the Castro error was prejudicial—and would have been so even if the prior robbery conviction was the sole impeaching offense. That is to say, an appellate court cannot properly conclude “it is reasonably probable that a result more favorable to the defendant would not have been reached in the absence of the Castro error—i.e., that the admission of the *1056prior convictions did not change the outcome . . . .” (People v. Collins, supra, 42 Cal.3d at p. 391, italics in original.)
The determination of the first degree murder and robbery charges and the related allegations depended on the resolution of a single crucial question: When did defendant form the intent to steal the victim’s possessions, before the killing or after? This issue was, of course, critical as to robbery. (See People v. Green (1980) 27 Cal.3d 1, 54 [164 Cal.Rptr. 1, 609 P.2d 468] [holding that “if the larcenous purpose does not arise until after the force has been used against the victim, there is no ‘joint operation of act and intent’ necessary to constitute robbery”].) The “timing” issue was also critical (to first degree murder. The evidence supported guilt on a theory of felony-murder-robbery but not willful, deliberate, and premeditated murder. The prosecutor conceded as much in his opening argument in summation: “Now, in terms of the straight murder in the first degree as opposed to felony murder .... Quite frankly the People submit that the evidence doesn’t support that particular kind of murder. The murder we have here is a felony murder because the murder was committed during the commission of the robbery . . . .” Lastly, it follows that the “timing” issue was critical as to the allegations of the use of a firearm in the murder, the use of a firearm in the robbery, and the felony-murder-robbery special circumstance.
Further, the resolution of the single crucial question when did defendant form the intent to steal depended, in turn, on a determination of his credibility as a witness. The circumstantial evidence bearing on the “timing” issue was ambiguous at best and of little substance. There was, however, direct evidence relevant to the issue. But that evidence was defendant’s testimony and defendant’s testimony alone, which included a statement that he formed the intent to steal only after the killing.
Finally, as noted above (see Part I, ante), the determination of defendant’s credibility as a witness must be deemed to have been close. To be sure, his testimony on when he formed the intent to steal—as on other matters— was not immune from attack. But the tale he told, especially on the “timing” issue, was believable in itself and was presented in a believable manner. The closeness of the question of credibility is confirmed by the fact that although the case was simple and straightforward, the jury deliberated two full days and parts of two other days, and requested a rereading of defendant’s testimony in its entirety.
In such circumstances, impeachment with a prior robbery conviction cannot easily be held to be without significant effect. “To allow evidence of a prior conviction of the very crime for which a defendant is on trial may be *1057devastating in its potential impact on a jury. . . . [W]here, as here, the prior conviction is sufficiently similar to the crime charged, there is a substantial risk that all exculpatory evidence will be overwhelmed by a jury’s fixation on the human tendency to draw a conclusion which is impermissible in law: because he did it before, he must have done it again.” (United States v. Bagley (9th Cir. 1985) 772 F.2d 482, 488; accord, People v. Beagle (1972) 6 Cal.3d 441, 453 [99 Cal.Rptr. 313, 492 P.2d 1].)
I recognize that the trial court instructed the jury that it could consider the prior convictions only for credibility. But “To tell a jury to ignore the defendant’s prior convictions in determining whether he or she committed the offense being tried is to ask human beings to act with a measure of dispassion and exactitude well beyond mortal capacities. In such cases, it becomes particularly unrealistic to expect effective execution of the ‘mental gymnastic’ required by limiting instructions, [citation], and ‘the naive assumption that prejudicial effects can be overcome by instructions to jury’ becomes more clearly than ever ‘unmitigated fiction,’ [citation] .... [O]nce evidence of prior crimes reaches the jury, ‘it is most difficult, if not impossible, to assume continued integrity of the presumption of innocence. A drop of ink cannot be removed from a glass of milk.’ ” (United States v. Daniels (D.C. Cir. 1985) 770 F.2d 1111, 1118.)
For the reasons stated above, I would vacate the judgment as to the convictions for first degree murder and robbery and as to the findings on the use of a firearm in the murder, the use of a firearm in the robbery, and the special circumstance of felony-murder-robbery, and would remand the cause to the trial court with directions to exercise its discretion on the admissibility of the convictions in question. (See People v. Collins, supra, 42 Cal. 3d at p.391.)
Ill
The trial court committed yet another error when it instructed the jurors, in accordance with a modified version of a standard instruction (CALJIC No. 2.15 (4th ed. 1979)), as follows: “The mere fact that a person was in conscious possession of recently stolen property is not enough to justify his conviction of the crime charged in [Count 2 of] the information [i.e., robbery], It is, however, a circumstance to be considered in connection with other evidence. To warrant a finding of guilty, there must be proof of other conduct or circumstances tending of themselves to establish guilt, [¶] [In this connection you may consider the defendant’s false or contradictory statements, if any, and any other statements he may have made with reference to the property. If a person gives a false account of how he acquired possession of stolen property this is a circumstance that may tend to show *1058guilt.]” (All brackets and bracketed material original except “[i.e., robbery].”)6
“In deciding whether an instruction is erroneous, we ascertain at the threshold what the relevant law provides. We next determine what meaning the charge conveys in this regard. Here the question is, how would a reasonable juror understand the instruction. . . . Finally, we determine whether the instruction, so understood, states the applicable law correctly.” (People v. Warren (1988) 45 Cal.3d 471, 487 [247 Cal.Rptr. 172, 754 P.2d 218].)
When the instruction in question is reviewed thus, it is found to be erroneous. The law is that a juror may infer that a person who gives a false account, of how he acquired stolen property may have acquired it improperly. The instruction, however, would have been understood by a reasonable juror to mean that he might infer that a person who gave a false account of how he acquired stolen property might have acquired it through robbery rather than theft.
Certainly, this is how the prosecutor understood the instruction and how he urged the jurors to understand it. During his opening argument in summation, he said: “You’ll be given an instruction that possession of stolen property by a defendant in and of itself is not proof of the defendant’s guilt, but evasive or deceptive explanation as to how he acquired the property may be considered by you as showing a consciousness of guilt. [¶] How does that apply. Well, if you recall the statements that he made . . . what he was doing with the motor home, how he got it, his use of the credit cards: ‘Lhave taken care of it. Yes, I can use these credit cards.’ [¶] All these explanations were clearly lies, but they show a consciousness of guilt in the mind of this defendant as to how he acquired that property. Not through panic. Not through inadvertence, not an afterthought, but he intended to take that property and in fact did, and killed the defendant in the—the victim in the process.” (Italics added.)
Therefore, the instruction, as it would have been understood by a reasonable juror, does not state the law correctly: it did not simply permit the jurors to draw the reasonable inference of improper acquisition from false account,: but actually permitted them to draw an unreasonable inference that the improper acquisition was effected through robbery rather than theft.7
*1059The error requires reversal. As explained above, the issue whether defendant committed robbery or grand theft was critical not only to the conviction for robbery: it was crucial as well to the conviction for first degree murder under a theory of felony murder—clearly the only theory sufficiently supported by the evidence—and the findings on the use of a firearm in the murder, the use of a firearm in the robbery, and the special circumstance of felony-murder-robbery. As also explained above, the issue was as close as it was critical: the circumstantial evidence did not point unmistakably in either direction; the direct evidence—defendant’s testimony—did, but was not immune from attack. The erroneous instruction, which was emphasized by the prosecutor in his summation, permitted the jurors to speculate that the improper acquisition of the victim’s belongings was effected through robbery rather than theft. Thus, the instruction skewed the resolution of this critical issue to defendant’s prejudice and hence is sufficient to undermine confidence in the outcome. Accordingly, I would reverse the judgment.
IV
Defense counsel’s failure to present certain available evidence in mitigation at the penalty phase resulted in a verdict of death that does not satisfy the heightened degree of reliability required by the Eighth Amendment to the United States Constitution and article I, section 17, of the California Constitution.
At the penalty phase, the prosecution’s case consisted of a stipulation covering defendant’s prior felony convictions. The defense’s case consisted of the testimony of a correctional officer. The officer testified that defendant had not presented any disciplinary problems while in custody before and during trial. After deliberating about three full days over a period of four days, the jury returned a verdict of death.
At the sentencing hearing, defense counsel stated for the record that he had intended to call defendant’s elderly grandmother as a witness at the penalty phase to present defendant’s “history.” That “history” would evidently have been substantially as follows. Defendant was born in 1960. Three years later his parents divorced; his mother did not seem interested in *1060him, and he was taken into his father’s home. Over the following years he resided mainly with his father. His father remarried when defendant was five years old, divorced when he was twelve, and remarried again when he was thirteen, his mother remarried and divorced four times. Defendant was a sensitive child, bashful, quiet, good with other children in school, and of a nonviolent disposition, but lonely and solitary; he apparently felt neglected or rejected by his parents and stepparents—and especially by his father. Although he resided mainly with his father during these years he apparently lived on and off with his grandmother because of troubles in his father’s home. In his teenage years he began to get into trouble—usually by stealing items from his father in order to “get even.” At 15 he left his father’s home and began to fend for himself. In his late teenage years he became involved in more serious criminal activity—which culminated in the present offenses.
Defense counsel, however, did not call defendant’s grandmother. He explained: “I wanted to present a great deal more history about Mr. Lang’s life, because I think it is important. . . . [¶] So I wanted to bring her here to have the jury hear that—and I think, to his great sorrow, in terms of the result, but I think to his credit as a human being—Ken Lang did not want to put his elderly grandmother through that kind of experience of the emotional trauma of having to come here and testify. And I think part of his mind set was even to go through the taint of being associated with this whole process of the serious offense of which he stood convicted.”
In People v. Deere (1985) 41 Cal.3d 353 [222 Cal.Rptr. 13, 710 P.2d 925], this court reversed a judgment of death on the ground that defense counsel’s failure to present evidence in mitigation—although in accord with his client’s wishes—rendered the penalty determination constitutionally unreliable.
“First,, the [Deere] court determined that counsel’s failure to present evidence in mitigation introduced error into the penalty proceeding.
“ ‘To permit a defendant convicted of a potentially capital crime to bar his counsel from introducing mitigating evidence at the penalty phase . . . would . . . prevent this court from discharging its constitutional and statutory duty to review a judgment of death upon the complete record of the case, because a significant portion of the evidence of the appropriateness of the penalty would be missing.
“ ‘This ¡deficiency of the record implicates another paramount concern of the state: “in capital cases . . . the state has a strong interest in reducing the risk of mistaken judgments.” . . . Since 1976 the United States Supreme Court has repeatedly recognized that the qualitative difference between *1061death and all other penalties demands a correspondingly higher degree of reliability in the determination that death is the appropriate punishment. (Woodson v. North Carolina (1976) 428 U.S. 280, 305 [49 L.Ed.2d 944, 961, 96 S.Ct. 2978] (plur. opn.).) And since 1978 the high court has insisted that the sentencer must be permitted to consider any aspect of the defendant’s character and record as an independently mitigating factor. (Lockett v. Ohio (1978) 438 U.S. 586, 604-605 [57 L.Ed.2d 973, 989-990, 98 S.Ct. 2954] (plur. opn. of Burger, C. J.).)
“ ‘To allow a capital defendant to prevent the introduction of mitigating evidence on his behalf withholds from the trier of fact potentially crucial information bearing on the penalty decision no less than if the defendant was himself prevented from introducing such evidence by statute or judicial ruling. In either case the state’s interest in a reliable penalty determination is defeated.’ (41 Cal.3d at pp. 363-364.)
“Next, the [Deere] court determined that so long as ‘the record . . . demonstrates “the possibility that at least someone might have been called to testify on defendant’s behalf and to urge that his life be spared”’” (41 Cal.3d at p. 367, italics in original), the error introduced into the penalty proceeding by counsel’s failure to present evidence in mitigation cannot be deemed harmless. The court explained: “ ‘When the sentencer in a capital case is deprived of all or a substantial part of the available evidence in mitigation, “the potential for prejudice is too obvious to require proof.” [Citation.] Indeed, “short of substituting a verdict of its own, there is no way for a reviewing court to determine what effect unpresented mitigating evidence might have had on the sentencer’s decision.” [Citation.] We have no doubt that a judgment of death imposed in such circumstances constitutes a miscarriage of justice (Cal. Const., art. VI, § 13): not only did defendant not have a fair penalty trial—in effect he had no penalty trial at all.’ (41 Cal.3d at p. 368.)” (People v. Williams (1988) 44 Cal.3d 1127, 1158-1159 [245 Cal.Rptr. 635, 751 P.2d 901] (conc. & dis. opn. of Mosk, J.).)
I turn now to the case at bar. On the face of the record it is plain that Deere error occurred: at defendant’s request counsel declined to present available evidence in mitigation—evidence that counsel would otherwise have presented.
It is also plain that the error here cannot be deemed harmless. As in Deere, “the record . . . demonstrates ‘the possibility that at least someone might have been called to testify on defendant’s behalf and to urge that his life be spared.’ ” (41 Cal.3d at p. 367, italics in original.) Indeed, the record demonstrates the virtual certainty that defendant’s grandmother would have been called. As also in Deere, “ ‘. . . there is no way for a reviewing *1062court to determine what effect unpresented mitigating evidence might have had on the sentencer’s decision[,]’ ” and no need for it to do so since “ ‘the potential for prejudice is too obvious to require proof.’ ” (Id. at p. 368.) But in this case I think a court could make a reasonable conjecture that defendant’s grandmother’s testimony would have tipped the scales on which penalty was weighed in his favor. With virtually no mitigating evidence, the balance must have been close to equipoise: as noted above, the jury deliberated about three full days before it chose death. With defendant’s grandmother’s testimony, I believe the balance would have verged toward life.
Accordingly, I would set aside the verdict of death as constitutionally unreliable ¡ and would reverse the judgment as to penalty. (See People v. Deere, supra, 41 Cal.3d at p. 368.)8
V
The trial court also committed error under People v. Brown, supra, 40 Cal.3d 512, by instructing the jurors in accordance with the mandatory-penalty-determination language of Penal Code section 190.3 (hereafter section 190.3) as that language was incorporated in a modified version of a standard instruction (CALJIC No. 8.84.2 (4th ed. 1979)): “If you agree unanimously and beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death . . .” (Italics added.) The final paragraph of section 190.3, on which the foregoing instruction was based, declares: “the trier of fact. . . shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances.” (Italics added.)
In Brown this court construed the final paragraph of section 190.3 as follows in order to avoid the serious Eighth Amendment questions that *1063would arise if the trier of fact were deprived of discretion to decline to fix the penalty at death. “In this context, the word ‘weighing’ is a metaphor for a process which by nature is incapable of precise description. The word connotes a mental balancing process, but certainly not one which calls for a mere mechanical counting of factors on each side of the imaginary ‘scale,’ or the arbitrary assignment of ‘weights’ to any of them. Each juror is free to assign whatever moral or sympathetic value he deems appropriate to each and all of the various factors he is permitted to consider .... By directing that the jury ‘shall’ impose the death penalty if it finds that aggravating factors ‘outweigh’ mitigating, the statute should not be understood to require any juror to vote for the death penalty unless, upon completion of the ‘weighing’ process, he decides that death is the appropriate penalty under all the circumstances. Thus the jury, by weighing the various factors, simply determines under the relevant evidence which penalty is appropriate in the particular case.” (40 Cal.3d at p. 541, fn. omitted.)
Stated simply, the trier of fact is “require[d] ... to make a moral assessment on the basis of the character of the individual defendant and the circumstances of the crime and thereby decide which penalty is appropriate in the particular case.” (People v. Bonin (1989) 47 Cal.3d 808, 856 [254 Cal.Rptr. 298, 765 P.2d 460].) In other words, “The jury is not simply to determine whether aggravating factors outweigh mitigating factors and then impose the death penalty as a result of that determination, but rather it is to determine, after consideration of the relevant factors, whether under all the circumstances ‘death is the appropriate penalty’ for the defendant before it.” (People v. Myers (1987) 43 Cal.3d 250, 276 [233 Cal.Rptr. 264, 729 P.2d 698] (lead opn. by Grodin, J.).)9
*1064Although in Brown this court upheld the constitutionality of the final paragraph of section 190.3, it nevertheless recognized that when delivered in an instruction that provision’s mandatory-penalty-determination language might mislead jurors as to the scope of their sentencing discretion, to the defendant’s prejudice, in violation of Eighth Amendment principles. (40 Cal.3d at p. 544, fn. 17.) Specifically, a juror might reasonably understand that language to define the penalty determination as “simply a finding of facts” (id. at p. 540) or “a mere mechanical counting of factors on each side of the imaginary ‘scale’ ” (id. at p. 541). In other words, he might be misled as to the i nature of the process by which penalty is determined. A juror might also reasonably understand the language to require him to vote for death if he finds that the evidence in aggravation outweighs the evidence in mitigation—even if he determines that death is not the appropriate penalty under all the circumstances. (See id. at pp. 540-544.) That is to say, he might be misled as to the character of the ultimate question to be resolved in the process of determining penalty.
In this case, the trial court’s instruction on the determination of penalty might indeed have misled the jurors as to the scope of their sentencing discretion, to defendant’s prejudice, in violation of Eighth Amendment principles. Review of the record discloses the following.
To begin with, the trial court instructed the jurors in accordance with the mandatory-penalty-determination language of the final paragraph of section 190.3 without material modification. The statutory provision declares, “the trier of fact . . . shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances.” (Italics added.) The instruction states, “If you agree unanimously and beyond a reasonable doubt that the aggravating circumstances outweigh the 'mitigating circumstances, you shall impose a sentence of death . . . .” (Italics added.) The presence in the instruction of the requirement of unanimous agreement beyond a reasonable doubt, of course, does not neutralize ¡or ameliorate the objectionable mandatory-penalty-determination language. It merely establishes the point at which the “mandate” becomes operative.10
Moreover, in anticipation of the trial court’s instruction, the prosecutor in his summation emphasized, and misleadingly explicated, the mandatory-penalty-determination language time and again. In words that do not quite fill 10 pages of the reporter’s transcript, the prosecutor quoted, paraphrased, or alluded to, the objectionable language no fewer than 10 times.
*1065Near the beginning of his argument, the prosecutor stated: “So you have taken an oath to follow the law, and now you have a general idea of what that law is and what your duties are, even if it may disagree—even if it may rub against a personal belief that you might hold. You might have said at the beginning ‘it would be very rare for me to impose the death penalty,’ but you said you would follow the law. If you find that the factors in aggravation outweigh the factors in mitigation, to uphold your oath and to follow the law, you must impose death.” (Italics added.)
The prosecutor soon returned to the point: “As we said, if the factors in aggravation outweigh, that means the death penalty must be imposed as a matter of law. If you find beyond a reasonable doubt the factors in aggravation outweigh, the death penalty must be imposed as a matter of law.” (Italics added.)
The prosecutor returned to the point yet again: “Now, you may say to yourself, ‘This is an awfully difficult choice. Why can’t the judges and the lawyers make this choice? It’s hard for me to make this choice. I don’t feel comfortable with it. Yes, I know it’s my duty that I find that these factors in aggravation far outweigh those in mitigation, and, therefore, the law says I must impose the penalty of death.’ But, you say, ‘That’s very difficult for me to do.’
“Well, it’s a question of what your duty is and what your oath is. The system is designed in such a way that it is felt better for 12 members of the community, who reflect the values of this community, to decide what is an appropriate punishment in this most serious of cases. . . . Puts you to the test. Puts you to the test of your ability to follow the law and follow what you perceive to be your duty.” (Italics added.)
Yet again the prosecutor returned to the point: “In this case, if you remember, you took an oath to follow the law. Perhaps, in the beginning when you took that oath, you felt you might not even come to this point, and so it was easy to say, ‘Yes, I do. I will follow that oath. I will follow the law.’ But now you find that you’re put to the test. We all—. . . we all took oaths—lawyers took oaths as officers of the court. Witnesses took oaths. The judge took an oath to be a judge. You took oaths to be a juror, and we all have to follow that oath. And the duty is to follow the law, whether you agree with it or not.
“You decide how much weight to give those factors in aggravation— felony convictions, the circumstances of the crime—and how much weight to give those factors in mitigation—the effects of alcohol, perhaps; the age *1066of the defendant; sympathy for the defendant. You decide how much weight to give it.
“Do it objectively. Try not to let your personal feelings about the death penalty intrude, because as a matter of law you’re not permitted to do that. You’re not permitted to do that. You have to be objective about this. You assess and evaluate and give weight to each of the factors and decide where the scale goes.
“If the scale goes down on the side of aggravation, the law says there can be only one penalty. As difficult as that might be for you to accept, if that is your decision, that the factors in aggravation beyond a reasonable doubt outweigh the factors in mitigation, the law says you have only one choice, the death penalty. If, on the other hand, they become equal or mitigation outweighs, then, of course, life without the possibility of parole. But you have to set aside your own personal convictions about the death penalty, and you have to follow the law. It’s not an easy choice for you to make, but, then, choices in this society aren’t always easy.” (Italics added.)
The prosecutor returned to the point a final time as he closed his argument: “In this case, you have to decide what your sense of duty is. You’ve taken an oath to follow the law, and as unpleasant as it might seem to you personally, if you judge that the factors in aggravation outweigh those factors in mitigation—T worked it out any way I can, but every time I come back to it.. The scales always tip in favor of aggravation.’ You may not like that result. You may find yourself shocked that what you held as a feeling that you would not impose [the] death penalty unless it was the most heinous of crimes, and you would work out a scenario in your mind of multiple murders of nuns and children and sexual carnages. And if you find that you don’t have that kind of case, the most heinous of cases, but you have a case where, according to the law, the factors in aggravation outweigh and you must impose the death penalty—not an easy choice to make.
“But you have a duty to follow the law, and if that is your finding, that aggravation outweighs mitigation, you must impose the death penalty. You have no other choice. To do otherwise upon such a finding would be not to be doing your job, to be violating your oath and letting the system down, in a sense.
“If you overlook the evidence and vote based on your heart and based on a sense of emotion, then you’ve not followed your oath, and you’ve done a disservice to the other jurors who sat here and tried to do their job.
“I ask that when you analyze these factors, simply try to be as objective as possible and to remove your personal feelings about the death penalty *1067from your deliberations and evaluate each of these factors on both sides and place them on that scale. And if you find the scale drops, goes down on the side of aggravation, your duty, I'm afraid it is clear. You must impose the death penalty, even if you don’t like it. That’s your duty, and you have a duty to follow the law, and I’m confident that you can.” (Italics added.)
In arguing as he did, the prosecutor delivered the message, time and again, that the law required the jurors simply to determine whether aggravating circumstances outweighed mitigating circumstances and then fix the penalty as the mandatory-penalty-determination language directs. That message, of course, was erroneous. It incorrectly described the character of the ultimate question to be resolved in the process of determining penalty: “The jury is not simply to determine whether aggravating factors outweigh mitigating factors and then impose the death penalty as a result of that determination.” (People v. Myers, supra, 43 Cal.3d at p. 276 (lead opn. by Grodin, J.); see, e.g., People v. Bonin, supra, 47 Cal. 3d at p. 856; People v. Brown, supra, 40 Cal. 3d at p. 541.) To my mind, a reasonable juror could not have ignored the prosecutor’s words or their import. Certainly, the jurors in this case did not: during deliberations, they requested (but were denied) a rereading of the prosecutor’s argument in its entirety.11
*1068Finally,| in his summation defense counsel said nothing that could have led a reasonable juror to believe that the mandatory-penalty-determination language in the instruction the trial court was about to deliver did not correctly state the applicable law. The gist of his argument, and the words with which it ended, was that “this is not a death penalty case.” In his only allusion to the objectionable language, counsel urged that there was “much more than! a reasonable doubt whether the aggravating circumstances outweigh the mitigating”—in fact, “mitigation outweighs aggravation.” With these words, counsel suggested that it was indeed the law that if the aggravating circumstances outweighed the mitigating the penalty of death had to be imposed, but declared only that the condition was not satisfied.
For the reasons stated above, I would hold that the trial court’s instruction in accordance with the mandatory-penalty-determination language of the final paragraph of section 190.3 might indeed have misled the jurors as to the scope of their sentencing discretion, to defendant’s prejudice, in violation of Eighth Amendment principles. Therefore, I would set aside the verdict of death and reverse the judgment as to penalty. (See, e.g., People v. Farmer (1989) 47 Cal.3d 888, 931 [254 Cal.Rptr. 508, 765 P.2d 940].)
VI
Finally, the trial court committed error when it denied defendant’s application for 'modification of the verdict of death under Penal Code section 190.4, subdivision (e) (hereafter section 190.4(e)), because its review was improperly limited.
After the jury returned the verdict of death, defendant made a verdict-modification application under section 190.4(e). The trial court denied the application, reasoning in substance that “the factors in aggravation outweigh those in mitigation beyond any reasonable doubt.”
Section l|90.4(e) provides in relevant part that in ruling on an application for modification of a verdict of death, “the judge shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in Section 190.3, and shall make a determination as to ¡whether the jury’s findings and verdicts that the aggravating *1069circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented.”
Section 190.4(e) “requires that the trial judge make an independent determination whether imposition of the death penalty upon the defendant is proper in light of the relevant evidence and the applicable law.” (People v. Rodriguez (1986) 42 Cal.3d 730, 793 [230 Cal.Rptr. 667, 726 P.2d 113]; accord, People v. Johnson (1989) 47 Cal.3d 1194, 1252 [255 Cal.Rptr. 569, 767 P.2d 1047].) As explained above (see Part V, ante), the penalty is proper only if death is appropriate under all the circumstances—not merely if aggravation outweighs mitigation. Therefore, section 190.4(e) requires that the trial judge make an independent determination whether imposition of the death penalty is appropriate under all the circumstances, not simply whether aggravation outweighs mitigation.
The trial judge here did not make such a determination. I do not fault him for his error: he passed on defendant’s application before the relevant law was clarified in such decisions as People v. Brown, supra, 40 Cal. 3d 512, 538-544, and People v. Rodriguez, supra, 42 Cal.3d 730, 792-794. But the fact remains, he did indeed err.12
Accordingly, I would vacate the judgment as to penalty and remand the cause to the trial judge for redetermination of defendant’s application for modification of the verdict of death. (See People v. Rodriguez, supra, 42 Cal.3d at p.794.)13
*1070VII
For the foregoing reasons, except as to the setting aside of defendant’s conviction for possession of a concealable firearm by a convicted felon, I dissent from the judgment of the court.
Defendant did not formally object to Crothers’s testimony when it was actually offered. “Since a ruling on a motion in limine is not generally binding on the trial court, which is free to reconsider its ruling at the time the challenged evidence is offered, the failure to object normally constitutes a waiver." (People v. Karis (1988) 46 Cal.3d 612, 634, fn. 16 [250 Cal.Rptr. 659, 758 P.2d 1189].) It is evident from the record, however, that the trial court and the parties treated ^defendant’s opposition to the prosecution’s motion as the equivalent of an objection. In such circumstances, the failure to raise a formal objection cannot be deemed a waiver. (See id. at p. 635, fn. 16.)
The majority appear to suggest that Crothers’s testimony tends to prove that defendant’s motive may have been simply “to kill anyone who interfered with him or thwarted his desires or plans or, in other words, to kill on slight provocation under circumstances where he had no right of self-defense.” (Maj. opn., ante, at p. 1015.) Whether or not the evidence does in fact have a tendency to prove such a point seems without consequence here. The prosecutor did not offer the evidence for that purpose.
Contrary to the majority’s apparent suggestion, on the question whether defendant’s motive was to prevent the victim from interfering with him or thwarting his desires or plans—an issue not raised by the prosecutor (see fn. 2, ante)—the prosecution also had evidence including the firing of three bullets into the victim’s head behind the left ear, which could support an inference defendant wanted to prevent the victim from interfering with him in life, and the taking of the victim’s belongings and the apparent cleaning of the crime scene, which could support an inference defendant wanted to prevent the victim from interfering with him after death.
The majority also consider Crothers’s testimony “not ‘merely cumulative.’ ” (Maj. opn., ante, at p. 1016.) For the reasons stated above, they too are incorrect.
In concluding that the least adjudicated elements of the felony of escape in the second degree in violation of Oregon Revised Statutes section 162.155 necessarily involve moral turpitude, the majority reason: “Escape without force, as defined by both Oregon and California law, necessarily involves some form of stealth, deceit, or breach of trust, and the potential for violence is always present when an escaped felon is recaptured.” (Maj. opn., ante, at p. 1010.) It is immaterial, however, what escape without force as defined by California law necessarily involves: defendant was convicted of violating Oregon law. And as shown above, Oregon law “necessarily involves” at most disrespect for authority. It is of no consequence here whether “the potential for violence is always present when an escaped felon is recaptured.” Such a “potential” is not a part of the actus reus, nor is awareness (actual or constructive) of this “potential” an aspect of the mens rea.
I quote,the instruction as it appears on the written form sent into the jury room for deliberations and recorded in the clerk’s transcript, and not the instruction as it was orally delivered and recorded in the reporter’s transcript. The versions, however, are virtually identical and differ in no way relevant here.
In concluding that the instruction was not erroneous, the majority first appear to reason that the instruction did not in fact permit the jurors to draw an inference that defendant was *1059guilty of robbery rather than grand theft from his false accounts of how he acquired possession of the victim’s belongings. But as shown above, such a conclusion is unsound. The majority then appear to reason that even if it did permit the jurors to draw that inference it was not objectionable in that regard “Defendant’s conduct . . . supports an inference that he committed the greater crime because the more serious the offense, the stronger the motive for concealment of the true facts.” (Maj. opn., ante, at pp. 1024-1025.) I disagree. Defendant’s conduct certainly allows speculation that he may have committed robbery rather than grand theft. But to my mind it does not permit a reasonable inference that he actually did so.
In finding no prejudicial error, the majority appear to rely on the proposition that “the reliability required by the Eighth Amendment in death penalty cases ‘is attained when’ ”—as here, in the majority’s view—“ ‘the prosecution has discharged its burden of proof at the guilt and penalty phases pursuant to the rules of evidence and within the guidelines of a constitutional death penalty statute, the death verdict has been returned under proper instructions and procedures, and the trier of penalty has duly considered the relevant mitigating evidence, if any, which the defendant has chosen to present.’ ” (Maj. opn., ante, at p. 1030, quoting People v. Bloom (1989) 48 Cal.3d 1194, 1228 [259 Cal.Rptr. 669, 774 P.2d 698].) To my mind, that proposition is unsound. Reliability can be assured only when the record on which the verdict is based is “complete,” i.e., when it does not lack any “significant portion of the evidence of the appropriateness of the penalty” that counsel reasonably concludes “ ‘. . . makes the most compelling case in mitigation.’ ” (People v. Deere, supra, 41 Cal.3d at pp. 363, 364, fn. 3.) It is obvious that the record here is not “complete” in that sense. Certainly, the testimony of the correctional officer could not reasonably have been judged by counsel to make the most compelling case in mitigation—nor was it actually judged by him to have such an effect. Indeed, the officer’s testimony made virtually no case in mitigation at all.
There is language in People v. Hendricks (1988) 44 Cal.3d 635, 654 [244 Cal.Rptr. 181, 749 P.2d 836], that may perhaps be read to stand for the proposition that the trier of fact’s discretion to decline to fix the penalty at death may be limited without offense to the Constitution—as by requiring the trier to choose death if it determines that aggravating circumstances outweigh mitigating circumstances. Such a reading, however, should be avoided as constitutionally erroneous.
In McCleskey v. Kemp (1987) 481 U.S. 279 [95 L.Ed.2d 262, 107 S.Ct. 1756], the United States Supreme Court stated that “In contrast to the carefully defined standards that must narrow a sentencer’s discretion to impose the death sentence, the Constitution limits a State’s ability to narrow a sentencer’s discretion to consider relevant evidence that might cause it to decline to impose the death sentence. ‘[T]he sentencer . . . [cannot] be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.’ ” (Id. at p. 304 [95 L.Ed.2d at p. 286], italics in original.)
With these words, the McCleskey court declared expressly that—at least in the general capital case—the Constitution prohibits a state from denying the sentencer discretion to consider evidence that might support a penalty other than death. It also declared impliedly that the Constitution prohibits a state from denying the sentencer discretion actually to choose such a penalty.
Contrary to the majority’s suggestion, the mandatory-penalty-determination language is not neutralized or ameliorated by an instruction that the jurors could consider sympathy for defendant: such an instruction plainly has no effect whatever on the “mandate.”
In concluding that the prosecutor’s argument would not have misled a reasonable juror as to the character of the ultimate question to be resolved in the process of determining penalty, the majority reason: “Although the prosecutor repeatedly urged the jury to follow the law if it determined that aggravating circumstances outweighed mitigating circumstances, those repeated urgings were offset by . . . repeated statements . . . regarding the jurors’ discretionary control over the weighing process. . . . [W]hen jurors are told they can determine individually the weight to be assigned to the aggravating and mitigating circumstances, and can decide that one circumstance outweighs all others, they necessarily understand they have discretion to select the appropriate penalty. [Citation.] Also, the prosecutor on one occasion described the jury’s penalty function expressly in terms of determining the appropriate penalty, stating: ‘The system is designed in such a way that it is felt better for 12 members of the community, who reflect the values of the community, to decide what is an appropriate punishment in this most serious of cases.’ ” (Maj. opn., ante, at pp. 1034-1035.) I cannot agree.
In my view, the prosecutor’s misleading comments on the character of the ultimate question to be resolved in the process of determining penalty were not “offset” by other assertedly correct remarks on the nature of that process. Certainly, in this case a reasonable juror would not have understood from the prosecutor’s argument that he had discretion to select the appropriate penalty: on the contrary, he would have understood from that very argument that appropriateness was not his concern. Moreover, the prosecutor’s remarks on the nature of the process of determining penalty doubtless did more harm than good. They may have adequately described the form of the discretion given to the jurors. But they offered a perverted view of its substance. Time and again they portrayed the nature of the penalty-determining process as impersonal: “Do it objectively. Try not to let your personal feelings about the death penalty intrude, because as a matter of law you’re not permitted to do that. You’re not permitted to do that. You have to be objective about this. You assess and evaluate and give weight to each of the factors and decide where the scale goes”; and, “I ask you when you analyze these factors, simply try to be as objective as possible and to remove your personal feelings about the death penalty from your deliberations.” As explained above, the nature of the penalty-determining process is not such. It is a “moral assessment” (People v. Bonin, supra, *106847 Cal.3d at p. 856), a profoundly and irreducibly personal determination as to whether the defendant should live or die.
Further, that the prosecutor uttered the phrase “appropriate punishment” is of no consequence. Manifestly, the words have no magical power, transforming misleading argument into proper exposition ex opere operato. Without such power they have no effect at all: a reasonable juror ¡would have understood “appropriate penalty” to mean simply the penalty “mandated" by the “law.”
In coming to the contrary conclusion, the majority reason that “the question whether aggravating circumstances outweigh mitigating circumstances cannot be separated from the determination of appropriateness for . . . the weighing of aggravating and mitigating circumstances is the method by which the jury determines which penalty is appropriate. [Citations.] Thus the trial judge’s stated conclusion . . . also constitutes a conclusion that the jury’s determination of appropriateness was supported by the weight of the evidence.” (Maj. opn., ante, at p. 1045, italics in original.) I cannot agree. The majority’s reasoning would be sound if the determination that aggravation outweighs mitigation logically entailed the determination that death is appropriate under all the circumstances. But as explained above, it does not: in choosing death in the first instance and in reviewing that choice on application for modification of the verdict, the jury and the trial judge respectively must consider whether that penalty is appropriate under all the circumstances, not simply whether aggravation outweighs mitigation. But because of the Brown error (see Part V, ante), I cannot conclude with the necessary confidence that the jury acted as it was required. And for the reasons stated above, I am compelled to conclude that the trial judge, in fact, did not.
Because of the evident mischief that it threatens, I feel constrained to comment on a certain dictum that appears in the majority opinion.
In discussing defendant’s claim that trial counsel provided ineffective assistance because he failed to present available evidence in mitigation, the majority state that “The invited-error doctrine operates ... to estop a defendant from claiming ineffective assistance of counsel based on counsel’s acts or omissions in conformance with the defendant’s own requests.” (Maj. opn., ante, at p. 1032.) I cannot agree. The doctrine covers error by the trial court. (See generally 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, §§ 301-304, pp. 313-316.) It does *1070not appear tq apply to deficient performance by counsel. Nor should it be extended to do so. Otherwise, the most substantial claims of ineffective assistance, viz, those predicated on counsel’s failure to exercise independent professional judgment, would be barred—surely an untenable result.