I concur in the majority’s affirmance of guilt and, under compulsion of People v. Anderson (1987) 43 Cal.3d 1104 [240 Cal.Rptr. 585, 742 P.2d 1306], in the finding of special circumstances. I dissent to the imposition of the death penalty.
At the conclusion of the penalty trial the prosecutor told the jury, erroneously, that they could not consider any of the defendant’s mitigating character and background evidence because it did not relate to the statutory aggravating or mitigating factors. Because this argument raises a legitimate question whether the jury performed its constitutional obligation to consider the mitigating evidence in arriving at its verdict, the majority hold that federal constitutional error has occurred.1 (Ante, p. 146.) The trial judge repeated the prosecutor’s error when, in ruling on the motion to modify the verdict, he concluded that defendant’s evidence of his unhappy upbringing was not mitigating evidence. (Ante, p. 156-157.)
*159The cited errors represent a particularly serious form of error. In the present case, as in most penalty trials, defendant’s only hope is to introduce evidence which may lead the jury or judge to understand the circumstances that molded his character, to sympathize with his personal struggle, or to find in him some redeeming conduct or quality. If the jury hears no such evidence or, hearing it, is told not to consider that evidence, the result of the penalty trial is inevitable. Such a trial does not determine whether death is the appropriate penalty, but functions only as a ritual on the road to execution.
The majority opinion recognizes the seriousness of the errors. Its author, in People v. Deere (1985) 41 Cal.3d 353, 368 [222 Cal.Rptr. 13, 710 P.2d 925], wrote that “[w]hen 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.”
Much the same can be said of the present case. Surely we would not want to make much of the distinction between a case in which the jury heard no mitigating evidence, and one in which they were told to disregard all such evidence. The only difference between this case and Deere, supra, 41 Cal.3d 353, is that in Deere the jury could not have considered the mitigating evidence because they did not hear it; here it is possible, although unlikely, that the jury did consider that evidence, contrary to the prosecutor’s admonition. The distinction, in other words, is between a case in which the defendant was deprived of a fair penalty trial and one in which the defendant was probably deprived of that right—but both cases should be reversed for a new penalty trial.
The majority, however, conclude that these serious errors are not reversible under the beyond-a-reasonable-doubt test of Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065].2 Billy Ray Hamilton, they imply, is so evil, so depraved a person that no reasonable juror—not even one generally opposed to capital punishment and sensitive to the social conditions which impel some persons to crime—could be moved by Hamilton’s evidence to spare his life. To the extent this assertion *160represents a statement about juror behavior and not just the personal views of the majority, it has no support in reasoning or data. So far as I am aware, there have been no studies of jury decisions under the 1978 death penalty law. This court sees all the cases in which juries impose the death penalty, but very few of those in which the jury chooses life imprisonment. For all we know there may be many cases comparable to the present case in which juries, persuaded by the mitigating evidence, vote against the death penalty.
We also lack knowledge about judicial rulings on motions to modify. We review on automatic appeal only those cases in which the court denies the motion, and do not know how often, and upon what grounds, judges grant such motions. In this respect the rulings resemble the penalty verdict itself. But such rulings differ from verdicts in one critical respect: when we consider a judge’s ruling on the motion to modify, there is no reason to tolerate any degree of ambiguity. A remand for a new modification hearing, in contrast to a new trial, involves minimal judicial resources and minimal delay. There is no reason to guess as to whether the trial judge considered the mitigating evidence, or whether it would have made a difference if he had considered it. We can send the case back, direct him to consider it, and find out if it makes any difference.
The one thing we should not do is to affirm a death penalty despite substantial error which probably deprived defendant of both a fair penalty trial and a considered ruling on the motion to modify.
Appellant’s petition for a rehearing was denied September 22, 1988.
This is also substantial error under California law. (See People v. Easley (1983) 34 Cal.3d 858, 878-880 [196 Cal.Rptr. 309, 671 P.2d 813].)
Like the majority, I am uncertain whether the United States Supreme Court intends the Chapman test to apply to error of the kind here at issue. (See discussion in majority opn., ante, p. 148.) Perhaps that court will clarify its position in this or some other case.