I concur in the judgment insofar as it affirms the judgment as to guilt and the determination of death-eligibility. I also concur in the denial of the petition for a writ of habeas corpus.
I dissent, however, from the judgment insofar as it affirms the judgment as to penalty. In my opinion, the verdict of death in this case does not meet the standards of reliability that the Eighth Amendment establishes. This is so for two independent but nevertheless related reasons. First, in violation of the principles set forth in People v. Brown (1985) 40 Cal.3d 512 [220 Cal.Rptr. 637, 709 P.2d 440], reversed on other grounds sub nomine California v. Brown (1987) 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837], the jurors were misled as to the nature of the determination they were called on to make in fixing penalty. Second, contrary to the mandate of Caldwell v. Mississippi (1985) 472 U.S. 320 [86 L.Ed.2d 231, 105 S.Ct. 2633], the jurors were led to entertain the erroneous belief that the “truly awesome responsibility’” for making the penalty determination did not rest on them and them alone.
To begin with, I believe that in combination with the prosecutor’s closing argument, the court’s instructions, which embodied the mandatory sentencing language of Penal Code section 190.3 (hereafter section 190.3), may have misled the jurors to defendant’s prejudice as to the scope of their sentencing discretion and responsibility under the 1978 death penalty law.
Section 190.3 states in relevant part that “the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circum*970stances referred to in this section, and 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 held that section 190.3, as construed therein, was not unconstitutional. (40 Cal.3d at pp. 538-544.) In conformity with settled constitutional principles, it interpreted the statutory language to require jurors to make “ . . . ‘an individualized determination on the basis of the character of the individual and the circumstances of the crime’ ” (id. at p. 540, italics deleted) and a “ . moral assessment of [the] facts . . .” ’ ” (ibid.)—and thereby decide “which penalty is appropriate in the particular case” (id. at p. 541).
Although it upheld the constitutionality of section 190.3, the court nevertheless recognized that when delivered in an instruction the provision’s mandatory sentencing language might mislead jurors as to the scope of their sentencing discretion and responsibility. (40 Cal.3d at p. 544, fn. 17.) Specifically, it believed that 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). It also believed that a juror might 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.) For this reason it directed trial courts thereafter to instruct jurors in conformity with the principles set forth therein, rather than in the bare words of the statute. (Ibid.) With respect to cases—such as the present—in which the jurors had been instructed in the statutory language, it announced that it would examine each such appeal on its merits to determine whether the jurors may have been misled to the defendant’s prejudice. (Ibid.)
I turn now to the case at bar. As stated above, the court instructed the jury in accordance with the potentially misleading words of section 190.3. Further, as will appear, the prosecutor’s closing argument rendered those words misleading in the context of this case.
The prosecutor’s argument was relatively brief. Its theme was that under the evidence adduced at trial the jurors were required to find as a fact that the aggravating circumstances outweighed the mitigating circumstances, and that consequently under the law applicable to the case they were required to fix the penalty at death.
The prosecutor opened his argument with the following statement.
*971“Ladies and gentlemen, I am going to be brief with you. ... I am going to be brief with you now because the evidence is plain and simple. fl[] You remember, as I told you during the argument in the guilt phase, I called upon you to remember the promises that you made, the statements that you made under oath when you were being selected as a juror, [fi] I am calling upon you also at this time to abide by the statements you made during voir dire, during questioning, during the selection of you as jurors, [fl] Each of you were asked whether or not you would be able to follow the law no matter what the law was, no matter whether you disliked it or not. You all said you would be able to put your personal feelings aside and you would be able to follow the law. That’s all I’m asking you to do at this time, is simply to follow the law, and I will be explaining the law to you in a few minutes.”
The prosecutor continued; “If after hearing all of [the] evidence and listening to the arguments of counsel and listening to the law as the Court tells you the law is in California, and after deliberating with your fellow jurors, you felt that death was the appropriate punishment; and that’s the issue here, what’s the appropriate punishment in this case, you felt that death was the appropriate punishment, each of you said you would be able to return back into this courtroom and make the public statement as a member of the jury, that the defendant should die. [fl] I’m calling upon you to make that statement, [fl] I’m calling upon you to return that verdict. It’s not an easy verdict. It’s not easy for me to stand here and argue for it. It’s never easy for someone to ask for another man’s life. But your burden is lightened in this case because of the law. [fl] The way the law is set up, as III explain it to you, the weighing process that you go through and the fact that if the aggravating circumstances outweigh the mitigating circumstances, you shall return a verdict of death, [fl] It’s just that simple. The law lightens the burden in that regard, in the analysis that you go through. [1¡] It also, in this case, the facts lighten your burden, the facts of the murder itself, the murder of Linda Rogers, and the facts of this defendant’s background, his criminal history certainly should lighten your burden.” (Italics added.)
The prosecutor went on: “I mentioned to you during the guilt phase, and I’m going to repeat it now, your duty as a juror is simply to apply the facts as you have assimilated them here in court, and as you have heard them from the witness stand, and the various objects you heard or saw and were passed around, and that you saw during deliberation in the jury room, the various facts that you have had both in the guilt phase and at the penalty phase. [H] You simply apply those facts to the law, to reach the determination-, and in doing that the law provides for various factors for you to consider in reaching your determination.” (Italics added.)
The prosecutor proceeded to set forth the statutory sentencing factors and to review the evidence adduced at trial under each of those factors, *972apparently using a chart for the purpose. In the midst of his discussion, he digressed to emphasize again what he believed to be the nature of “[t]he final determination as to what is the appropriate punishment . . . .” Specifically, he stated: “But after you consider all the factors, it is not a beyond a reasonable doubt standard that I have to prove death to you. That is not the reasoning process that you apply. The reasoning process that you apply is a weighing process, a balancing process, [fl] As I anticipate the Court will instruct you, that is, you weigh the circumstances in .aggravation. You weigh the circumstances in mitigation. If the circumstances in aggravation outweigh the circumstances in mitigation, you shall return a verdict of death.” (Italics added.)
After reviewing the evidence under the statutory sentencing factors, the prosecutor undertook to describe to the jurors how in his opinion they should make the penalty determination. He opened with the statement, “So as you go through these facts, you add up the circumstances in aggravation, first, versus the circumstances in mitigation.” (Italics added.) On his chart he then identified each factor as aggravating, mitigating, or neither. Finally, he declared in effect that there were several factors in aggravation and none in mitigation.
The prosecutor concluded his argument as follows. “I want to cover one further point with you before closing and that is to reiterate the points that I have already made; that is, in making your determination as to what is the appropriate punishment. [*[[] In this case, that is the issue: what is the appropriate punishment. You simply weigh the aggravating factors against the mitigating factors and whichever outweighs the other is the verdict you shall return according to law. [fl] If the mitigating factors outweigh the aggravating factors, you shall return a verdict of life without the possibility of parole. If the aggravating factors outweigh the mitigating factors, you shall return a verdict of death, [fl] And if you look at one I have placed here in correspondence to these factors for consideration, you can see there is only one conclusion, there is only one verdict that you could possibly return in this case and that is of death, because there are no mitigating factors according to law.” (Italics added.)
The prosecutor closed thus: “The law provides for [death], the law provides the weighing process and the law provides an answer here. It is a just answer and justice should be done according to the law and a death [verdict] returned, [ft] Thank you.”
From the foregoing it is plain that in his closing argument the prosecutor caused the very harm the court feared in Brown. First, he misled the jury as to the nature of the weighing process. He effectively told the jurors that, just *973as in the guilt phase, their determination would be “simply a finding of fact . . . (People v. Brown, supra, 40 Cal.3d at p. 540.) He also presented the penalty-fixing process as essentially a “mere mechanical counting of factors on each side of the imaginary ‘scale’. . . .” (Id. at p. 541.) It is true, as the majority observe, that at certain points in his argument the prosecutor spoke of the jury’s task in terms that perhaps do not portray the weighing process as narrowly cabined. It is also true that in his very brief argument one of the defense team told the jurors that their function was not “a matter of counting checks. ... If that were the case, we would have an adding machine at the penalty phase.” To my mind, however, such comments seem insufficient to cure the “counting” error—and do not even address the “fact-finding” error.
Second, the prosecutor misled the jurors as to the nature of the ultimate decision they were called on to make. He told the jurors, time and again, that if they found that the evidence in aggravation outweighed the evidence in mitigation they were compelled by the law to vote for death—even though they were subject to no such compulsion. (People v. Brown, supra, 40 Cal.3d at pp. 538-544.) It is true, as the majority imply, that at certain points in his argument the prosecutor urged that death was the “appropriate” penalty in this case. But through such comments—which I have quoted in their context—he can reasonably be understood to have meant only that death was compelled by the law and not proper as a moral judgment.
My assessment of the effect of the prosecutor’s argument is unaffected by the fact that one of the defense team requested the jurors to spare defendant’s life. In the face of the mandatory language of the instruction and the prosecutor’s repeated quotation, paraphrase, and explication of that language, counsel’s statement would evidently be heard as little other than a plea for the jurors to depart from their oaths and dispense a mercy that was not theirs to give.
On the basis of the foregoing analysis I am compelled to conclude that Brown error occurred in this case.
Next, I believe that the prosecutor’s argument was independently objectionable under Caldwell v. Mississippi, supra, 472 U.S. 320, as an attempt to minimize the jury’s sense of responsibility for determining the appropriateness of death.
In Caldwell the high court stated the relevant facts as follows. “In their case for mitigation, [Caldwell’s] lawyers put on evidence of [his] youth, family background, and poverty, as well as general character evidence. In their closing arguments they referred to this evidence and then asked the *974jury to show mercy. The arguments were in large part pleas that the jury confront both the gravity and the responsibility of calling for another’s death, even in the context of a capital sentencing proceeding.
“In response, the prosecutor sought to minimize the jury’s sense of importance of its role. . . . The prosecutor’s argument, defense counsel’s objection, and the trial court’s ruling were as follows:
“ ‘Assistant District Attorney: Ladies and gentlemen, I intend to be brief. I’m in complete disagreement with the approach the defense has taken. I don’t think it’s fair. I think it’s unfair. I think the lawyers know better. Now, they would have you believe that you’re going to kill this man and they know—they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They know it. Yet they
“ ‘Counsel for Defendant: Your Honor, I’m going to object to this statement. It’s out of order.
“ ‘Assistant District Attorney: Your Honor, throughout their argument, they said this panel was going to kill this man. I think that’s terribly unfair.
“ ‘The Court: Al[l] right, go on and make the full expression so the Jury will not be confused. I think it proper that the jury realizes that it is reviewable automatically as the death penalty commands. I think that information is now needed by the Jury so they will not be confused.
“ ‘Assistant District Attorney: Throughout their remarks, they attempted to give you the opposite, sparing the truth. They said “Thou shall not kill.” If that applies to him, it applies to you, insinuating that your decision is the final decision and that they’re gonna take Bobby Caldwell out in the front of this Courthouse in moments and string him up and that is terribly, terribly unfair. For they know, as I know, and as Judge Baker has told you, that the decision you render is automatically reviewable by the Supreme Court. Automatically, and I think it’s unfair and I don’t mind telling them so.’ ” (472 U.S. at pp. 324-326 [86 L.Ed.2d at pp. 236-237].)
The jury returned a verdict of death and the court sentenced the defendant accordingly.
The United States Supreme Court reversed the judgment as to penalty on the ground that “it is constitutionally impermissible to rest a death sentence *975on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” (Id. at pp. 328-329 [86 L.Ed.2d at p. 239].)
The court reasoned, in part, that an argument such as the prosecutor’s was prejudicial in that it “offers jurors a view of their role which might frequently be highly attractive. A capital sentencing jury is made up of individuals placed in a very unfamiliar situation and called on to make a very difficult and uncomfortable choice. They are confronted with evidence and argument on the issue of whether another should die, and they are asked to decide that issue on behalf of the community. Moreover, they are given only partial guidance as to how their judgment should be exercised, leaving them with substantial discretion. [Citations.] Given such a situation, the uncorrected suggestion that the responsibility for any ultimate determination of death will rest [elsewhere] presents an intolerable danger that the jury will in fact choose to minimize the importance of its role.” (Id. at pp. 332-333 [86 L.Ed.2d at p. 242].)
The court explained: “for a sentencer to impose a death sentence out of a desire to avoid responsibility for its decision presents the specter of the imposition of death based on a factor wholly irrelevant to legitimate sentencing concerns. The death sentence that would emerge from such a sentencing proceeding would simply not represent a decision that the State had demonstrated the appropriateness of the defendant’s death. This would thus also create the danger of a defendant’s being executed in the absence of any determination that death was the appropriate punishment.” (Id. at p. 332 [86 L.Ed.2d at p. 241], fn. omitted.)
I apply this reasoning to the case at bar. At the penalty phase the prosecutor repeatedly sought to minimize the jury’s sense of that responsibility. As the quoted portions of his argument plainly show, he told the jurors in essence that the responsibility for deciding the appropriateness of death rested not on them but on a reification he called “the law,” which made the ultimate penalty automatic if they found as a fact that the evidence in aggravation outweighed the evidence in mitigation. It was not they but “the law,” he insisted, that bore the “burden” of condemning defendant to death. It is true that the prosecutor told the jurors that in the abstract returning a verdict of death was “not. . . easy.” But he made the statement only as an introduction to his claim that to return such a verdict here would not be all that difficult: “But your burden is lightened in this case because of the law. ffl] The way the law is set up,... if the aggravating circumstances outweigh the mitigating circumstances, you shall return a verdict of death. [11] It’s just that simple. The law lightens your burden in that regard . . . .”
*976On the basis of the foregoing analysis I am compelled to conclude that Caldwell error occurred in this case.
The majority do not adequately attempt to show that no Caldwell error occurred. Indeed, they reduce the issue to a footnote, even though it was squarely raised and vigorously argued by defendant.
Assuming for purposes of discussion that harmless-error analysis is applicable in the present context, on this record I cannot deem either the Brown error or the Caldwell error to be nonprejudicial. In vacating the sentence of death in Caldwell, the high court explained: “This Court has always premised its capital punishment decisions on the assumption that a capital sentencing jury recognizes the gravity of its task and proceeds with the appropriate awareness of its ‘truly awesome responsibility.’ In this case, the State sought to minimize the jury’s sense of responsibility for determining the appropriateness of death. Because we cannot say that this effort had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eighth Amendment requires. The sentence of death must therefore be vacated.” (Id. at p. 341 [86 L.Ed.2d at p. 247].)
Until today, this court too had premised its capital decisions on the assumption that the jury recognizes its grave responsibility when it considers the question of life or death. In the case at bar the Brown error threatened, and the prosecutor’s independently erroneous argument sought, to minimize the jury’s sense of that responsibility. Because I cannot say that either error was without effect, I must conclude that the jury’s decision does not meet the reliability requirements of the Eighth Amendment.
For the foregoing reasons, I would hold that the verdict of death must be vacated because of Brown and Caldwell errors. Accordingly, I am compelled to dissent from the affirmance of the judgment as to penalty.