I concur in the judgment as to
guilt. After review, I can find no reversible error bearing on that issue.
I also concur in the judgment as to death-eligibility. To my mind, at least one of the special circumstance findings must be sustained. But as will appear, I disagree with the majority’s discussion of one of defendant’s claims relative to those findings.
I dissent, however, from the judgment as to penalty. In my view, the trial court committed prejudicial error by not instructing the jurors that they could exercise mercy and spare defendant’s life.
I
Defendant contends that Penal Code section 190.2, subdivision (a)(2) (hereinafter section 190.2(a)(2)), the provision of the 1978 death penalty law defining the prior-murder-conviction special circumstance, denied him equal protection of the law under both the United States and California Constitutions. He bases his claim on an assertion that the statutory scheme under which he was tried and subsequently convicted, for a murder he committed at age 16 in Alabama, was different from the statutory scheme under which a similarly situated defendant would have been tried in California.
The majority reject the contention. I do as well. But their analysis leaves something to be desired. The short and sound answer to defendant’s contention is that section 190.2(a)(2) does in fact treat similarly situated defendants similarly: the provision renders death-eligible both the defendant who has suffered a murder conviction here and the defendant who has suffered a murder conviction in another jurisdiction. The difference in treatment of which defendant complains is effected by the different statutory schemes under which different defendants were previously tried and convicted. That *236difference is immaterial for purposes of equal protection analysis. What defendant seems to be attempting to raise is, strictly speaking, a claim of denial of due process—to wit, that his prior murder conviction does not properly come within the ambit of section 190.2(a)(2). He fails, however, to adequately support such a point. Therefore, the claim must be rejected out of hand.
II
Defendant contends that the trial court committed prejudicial error by not instructing the jurors that they could exercise mercy and spare his life. I agree.
In modern Eighth Amendment jurisprudence, mercy is “one of the most central sentencing considerations, the one most likely to tilt the decision in favor of life.” (Drake v. Kemp (11th Cir. 1985) 762 F.2d 1449, 1460 (in bank).) “Just as retribution is an appropriate justification for imposing a capital sentence, [citation], a jury may opt for mercy and impose life imprisonment at will. The ultimate power of the jury to impose life, no matter how egregious the crime or dangerous the defendant, is a tribute to the system’s recognition of mercy as an acceptable sentencing rationale.” (Ibid.)
As used here, “mercy” is obviously not synonymous with or reducible to sympathy. Rather, it is the power to choose life over death—whether or not the defendant deserves sympathy—simply because life is desirable and death is not.
In a word, under the Eighth Amendment the jury has the absolute power to spare the defendant’s life and may exercise that power with the utmost legitimacy. (See, e.g., People v. Brown (1988) 46 Cal.3d 432, 468 [250 Cal.Rptr. 604, 758 P.2d 1135] (conc. opn. of Mosk, J.) [observing after review of authorities that the jury has “absolute discretion to choose life”]; Moore v. Balkcom (11th Cir. 1983) 716 F.2d 1511, 1521 [“While discretion to impose the death penalty for any reason which might be capricious is denounced, [citation], it now appears that discretion to grant mercy—perhaps capriciously—is not curtailed.”].)
It follows that at the penalty phase of a capital trial the court is obligated to instruct the jurors on mercy sua sponte. “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.” (People v. St. Martin (1970) 1 Cal.3d 524, 531 [83 Cal.Rptr. 166, 463 P.2d *237390]; accord, People v. Sedeno (1974) 10 Cal.3d 703, 715 [112 Cal.Rptr. 1, 518 P.2d 913].) Mercy, of course, is a general principle relevant to the ultimate issue raised in every capital case—whether or not the defendant is to pay the ultimate price.
In the case at bar, the trial court did not instruct the jurors that they could exercise mercy and spare defendant’s life, even though in my view counsel effectively requested it to do so. Under the analysis set forth above, the omission was clearly error. My conclusion would perhaps be different if the instructions actually given at least impliedly advised that the exercise of mercy was legitimate. They did not. Incorporating as they did the penalty factors and the mandatory penalty-determination language of Penal Code section 190.3, they would have been understood by reasonable jurors to suggest that the exercise of mercy was in fact illegitimate.
The majority hold that the trial court did not in fact err. In support they assert, “the jury was not misinformed regarding its power to exercise mercy.” (Maj. opn., ante, at p. 228, italics added.) They miss the point. The fact is, the jury was never informed by the court regarding that power. The majority seem to suggest that a certain comment in the prosecutor’s argument was an adequate substitute for the instruction the court omitted. “But arguments of counsel cannot substitute for instructions by the court.” (Taylor v. Kentucky (1978) 436 U.S. 478, 488-489 [56 L.Ed.2d 468, 477, 98 S.Ct. 1930].)1
In my view, the error cannot be deemed harmless. The omission of an instruction on mercy may well have contributed to the choice of penalty and thereby fatally tainted the verdict of death. As a result of that omission, the jurors were without instruction about mercy, “one of the most central sentencing considerations, the one most likely to tilt the decision in favor of life.” (Drake v. Kemp, supra, 762 F.2d at p. 1460.) As a result of that omission, they were without direction about their “ultimate power ... to impose life, no matter how egregious the crime or dangerous the defendant . . . .” (Ibid.) I recognize that defendant might well not have deserved sympathy in the eyes of the jurors. But I cannot conclude that they would not have shown mercy to him had they been instructed on their power to do so.
*238III
For the foregoing reasons, although I concur in the judgment as to guilt and death-eligibility, I dissent as to penalty.
Appellant’s petition for a rehearing was denied September 29, 1989, and the opinion was modified on September 28, 1989, to read as printed above.
In People v. Caro (1988) 46 Cal.3d 1035 [251 Cal.Rptr. 757, 761 P.2d 680], this court implied that the jurors in that case were effectively instructed that they could exercise mercy and spare the defendant’s life because they were told they “could consider sympathy” and “also received an expanded factor (k) instruction, commending to [their] consideration specific aspects of defendant’s character and background as shown by the evidence.” (Id. at p. 1067.) In this case, however, the jurors were not told they could consider sympathy.