I concur in the affirmance of the judgment as to guilt and in the sustaining of the special circumstance findings.
I dissent, however, from the affirmance of the judgment as to penalty. Our previous opinion rendered before this court granted rehearing reversed the penalty judgment because certain jury instructions may have caused the jury to misunderstand what evidence it could consider in mitigation, and to misunderstand the nature of its function in selecting the penalty. I adhere to the view that the instruction on the applicable factors in mitigation, along with the prosecutor’s argument on these factors, require reversal. The trial court instructed the jury on the statutory factors in aggravation and mitigation, but did not explain that any aspect of the defendant’s character and background which defendant proffers can be used as a basis for rejecting the death penalty. (See People v. Easely (1983) 34 Cal.3d 858, 878, fn. 10 [196 Cal.Rptr. 309, 671 P.2d 813].) Our original opinion found that the prosecutor had aggravated the misleading nature of the instruction by claiming that there were only two factors in mitigation—defendant’s age, and his clean criminal record. The implication was, we thought, that the character and background evidence was not relevant in mitigation.
Since rehearing was granted in this case, we have determined, under the guidance of the United States Supreme Court, that the prejudicial effect of this sort of instructional error must be viewed in the context of the record as a whole, with particular emphasis upon the arguments which the prosecutor made to the jury. (California v. Brown (1987) 479 U.S. 538, 546 [93 L.Ed.2d 934, 943, 107 S.Ct. 837] (cone. opn. by O’Connor, J.); People v. Ghent (1987) 43 Cal.3d 739, 777-778 [239 Cal.Rptr. 82, 739 P.2d 1250]; see also People v. Miranda, (1987) 44 Cal.3d 57, 103 [241 Cal.Rptr. 594, 744 P.2d 1127].)
The majority claim that the prosecutor generally conceded the theoretical relevance of defendant’s mitigating background evidence, but dismissed the evidence as insignificant. On the contrary, the prosecutor’s discussion of defendant’s background evidence was intended to persuade the jury that the *652evidence did not fit into the statutory scheme. He told the jury that it should consider the so-called sympathy evidence only if it was applicable under the jury instruction on mitigating circumstances. He emphasized that the evidence of defendant’s background, though sympathetic, had nothing to do with the case. He rebuked himself for failing to cross-examine the defense witnesses on whether they thought that defendant’s background had anything to do with the charged crimes. He told the jury that the law would not tell them how the character and background evidence fit into the statutory circumstances in aggravation and mitigation, and that the instructions would not help them. His message was that the jury would have to figure out for itself, without guidance from the court, whether the evidence was relevant, but that, in the prosecutor’s view, it was irrelevant because it did not mitigate culpability for the charged crimes. Under the circumstances, I adhere to my view that the jury was not adequately informed that it could consider defendant’s mitigating background and character evidence as a basis for imposing a sentence less than death.
On rehearing, amicus curiae identified an additional error which reinforces my conclusion that the penalty judgment cannot stand. As the majority find, the evidence of defendant’s threat against the police officer did not show the commission of a violation of any penal statute. (See People v. Phillips (1985) 41 Cal.3d 29, 72 [222 Cal.Rptr. 127, 711 P.2d 423]; see also People v. Boyd (1985) 38 Cal.3d 762, 776-778 [215 Cal.Rptr. 1, 700 P.2d 782].) Unlike the majority, it is my view that the evidence of defendant’s courtroom threat against the prosecutor likewise did not show commission of a crime. The majority posit that the conduct could be a violation of Penal Code sections 69 or 71 (threatening an executive or public officer with intent to deter performance of his duties). “Although defendant voiced the threat in a low voice, he turned to face the deputy district attorney when he communicated it. The deputy had just completed conducting a preliminary hearing in which defendant was held to answer, had argued against his release on bail, and was able to hear at least a portion of the threat. Given the murder and assault charges which defendant faced, it could reasonably be perceived that he had the apparent ability to carry out the threat. The evidence thus supports an inference that defendant intended to thwart or deter further prosecution of his case by threatening the deputy district attorney, and each requisite element of a violation of section 69 was shown on these facts. [Citation.]” (Maj. opn., supra, at p. 639.)
My reading of the record discloses that defendant made the remark as he was escorted by the bailiff to the holding cell. The room was noisy, and defendant made the remark under his breath. The deputy district attorney who conducted the hearing was 20 feet away from defendant and did not hear any threat, but only heard the words “D.A.” I see no evidence that defendant communicated any threat, or that he, a prisoner in custody and *653under the immediate control of a bailiff, had any apparent ability to carry out any threat. (See People v. Hopkins (1983) 149 Cal.App.3d 36, 40-41 [196 Cal.Rptr. 609].) Nor do the charged crimes provide any evidence of his ability to carry out a threat to “get” a prosecutor while he was in custody— there was no evidence that he had access to hired killers; rather, he himself performed all the violence with which he was charged.
A review of the prosecutor’s rebuttal argument to the jury makes it clear how important the threats were to his case for imposing the death penalty. The prosecutor urged the jury to consider the threats as a factor in aggravation under Penal Code section 190.3 factor (b) (uncharged crimes of violence). Without this improperly admitted evidence, the prosecutor would have had to admit that the absence of evidence of prior crimes of violence was a factor in mitigation. The prosecutor also made particular use of the evidence in his rebuttal argument, when he tried to counter defense counsel’s plea for the punishment of life imprisonment. He argued that the threats showed that defendant would be violent and dangerous in prison, and that they showed such lack of remorse or consideration for the value of life that defendant was entitled to no mercy.
I remain convinced that there is a serious risk that the jury misunderstood one of the crucial tools it was to use in determining penalty, in that it did not understand the applicability of defendant’s mitigating background evidence. The case in mitigation was truncated and the case in aggravation was enhanced not only by this misunderstanding, but also by the admission of very damaging evidence that defendant made threats of violence against representatives of the state. The jury was urged to consider these threats and their implication regarding future conduct in determining whether defendant should be incarcerated or executed. I would reverse the penalty judgment.
Appellant’s petition for a rehearing was denied March 16, 1989.