I concur in the judgment. I am of the opinion that there occurred no prejudicial error going to guilt, that at least one special *425circumstance finding is unquestionably valid, and that there occurred no prejudicial error going to penalty.
I write separately, however, because I feel compelled to express my belief that the question of Brown error is much closer than the majority suggest. (People v. Brown (1985) 40 Cal.3d 512, 538-544 [220 Cal.Rptr. 637, 709 P.2d 440], revd. on other grounds sub nom. California v. Brown (1987) 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837].)
At trial the court instructed the jury in accordance with former CALJIC No. 8.84.2 and its mandatory sentencing formula. Three times in closing argument the prosecutor emphasized and exploited that instruction’s potentially misleading language.
Near the beginning of his argument the prosecutor stated: “The law in its wisdom through our State Legislature, of course, has set forth a series of factors for you to take into account. The law is that if factors in aggravation outweigh the factors in mitigation you must impose the death penalty. The language is very clear. It says ‘shall.’ That means must. You have to. No discretion, [fl] Conversely if the factors in mitigation outweigh the factors in aggravation, then you must, that is you shall impose life imprisonment. And, again, there is no discretion in that area.” (Italics added.)
Later on, the prosecutor picked up the theme: “And then at the conclusion of the case, of your going through the factors, you decide the case by deciding whether or not the aggravating outweighed the mitigating. fl|] If they do, you impose the death penalty. If they don’t you don’t. It’s really that straightforward.” (Italics added.)
Toward the close, the prosecutor returned to this theme yet again: “If you follow the law and go through the penalty factors that the Judge will instruct you and you are astute and examiné the case in the light thereof and you follow the mandate that if the aggravating factors outweigh the mitigating, you shall impose the death penalty, then that’s what you shall do.”
It is only because defense counsel’s argument and the court’s other instructions (which the majority set forth at length) plainly disclosed the proper scope of the jury’s sentencing responsibility and discretion and thereby neutralized the prosecutor’s comments that I am able to conclude the jurors in this case were not misled by former CALJIC No. 8.84.2.
In spite of my disagreement with the majority’s analysis, as stated above I find no reason to disagree with its disposition. Accordingly, I concur in the judgment.