Two years ago, in oral argument before the nation’s highest court in Boyde v. California (1990) 494 U.S. 370 [108 L.Ed.2d 316, 110 S.Ct. 1190] (Boyde), the California Attorney General conceded that in the case now before us the prosecutor in his closing summation “misled the jurors” by arguing that the jury could not consider evidence, presented at the penalty phase of this capital case, that defendant had experienced a religious awakening.1 Now, the Attorney General argues the contrary. The majority is persuaded by his argument. I am not.
In my view, there is a reasonable likelihood that the prosecutor’s closing argument, which misconstrued an ambiguous instruction by the trial court, misled the jury into believing that it could not consider any of the evidence defendant had offered at the penalty phase. When defendant objected to the *1080improper argument, the trial court neither condemned nor corrected the prosecutor’s misstatement of legal principles. As a result, the jury was erroneously permitted to infer that the prosecutor’s interpretation of the law was sound. The error requires reversal of the judgment of death against defendant.
I.
At the penalty phase of this capital trial, defendant called eight witnesses. They testified that in the 17 months since his arrest defendant had become a “born again” Christian, causing him to fundamentally alter his outlook and behavior.
Deputy Sheriff Vincent Engen, who was in charge of defendant’s module at the Orange County jail, testified that defendant held Bible-study sessions with the other inmates lasting from one to three hours, that he appeared to have a leadership role with the other inmates, and that his influence had been “positive.” Deputy Engen was “glad” defendant was in the module “[b]e-cause of his ability to calm the other inmates.”
Pastor John Kirk, who had known defendant for 10 years, visited defendant at the jail approximately 7 times. He observed “a great remorse and regret in [defendant] for . . . the things that he had done,” and believed that defendant was “sincere in his . . . commitment to the Lord.” Those views were shared by Barbara Seglie, the missions director for the Eagles Nest Christian Fellowship. At defendant’s request, Seglie held approximately fifteen Bible-study sessions with defendant at the county jail, lasting from two to five hours. She testified that defendant’s religious conversion “definitely has changed his life.” When she first met defendant, his comments reflected an interest only in his own needs, but in later sessions he began to show a concern for other inmates, and eventually inmates came to defendant for counseling.
Four county jail inmates—Phillip Arellano, Dennis Howie, Keith Dandley, and Bruno Palko—testified that defendant’s religious conversion was sincere. Dandley and Palko described defendant as having a “positive” and “calming” influence on the other inmates. Dandley also credited defendant with saving his life by talking him out of committing suicide.
Defendant’s mother, too, testified that her son’s religious awakening was genuine, and that he had become a changed man since his arrest. She visited her son regularly in jail, and described him as being “totally immersed in the Lord.”
*1081Defendant asked the trial court to instruct the jury that it could consider in mitigation “evidence of the defendant’s character, background, history, mental condition and physical condition.” The prosecutor objected. Although the court agreed with defendant that the jury was entitled to consider such evidence in mitigation, it refused to modify the standard instruction (former CALJIC No. 8.84.1). That instruction, echoing the requirements of Penal Code section 190.3, told the jury it should base its penalty determination on certain specified factors. The only one of those factors to which defendant’s mitigating evidence could possibly apply was that described in Penal Code section 190.3, factor (k) (factor (k)): “Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.”
In closing argument, the prosecutor argued to the jury that the evidence presented by defendant at the penalty phase could not be considered under factor (k), because that factor “doesn’t refer to anything after the fact,” that is, after commission of the murder. (As the Attorney General now concedes, the prosecutor’s characterization of the scope of factor (k) was incorrect.) Defense counsel asked to approach the bench, and, out of the hearing of the jury, objected that the prosecutor’s argument was “completely contrary to what. . . [factor] ‘k’ was designed to apply to.” The trial court overruled the objection, deciding that defendant and the prosecutor could each argue to the jury their differing interpretations of the scope of factor (k). The court then told the jury that the comments of the prosecutor and defense counsel were “not evidence” and were “to be placed in [their] proper perspective.”
Thus authorized by the trial court to argue his misinterpretation of factor (k), the prosecutor told the jury several times that it could not legally consider defendant’s mitigating evidence: “[Y]ou have not heard during the past few days any legal evidence [in] mitigation. ...[][] You have not heard any evidence of mitigation in this trial.” Although the prosecutor also argued to the jury that even if defendant’s evidence could be considered, it was of little value, he prefaced this argument by saying, “I don’t really want to spend too much time on it because ... I don’t think [defendant’s evidence] comes under any of the eleven factors . . . .”
II.
Under the Eighth Amendment to the United States Constitution, a sentencing jury in a capital case must be permitted to “consider and give effect to all relevant mitigating evidence” offered by the defendant. (Boyde, supra, 494 U.S. at pp. 377-378 [108 L.Ed.2d at pp. 326-328]; see also Skipper v. South Carolina (1986) 476 U.S. 1, 4 [90 L.Ed.2d 1, 6-7, 106 S.Ct. 1669]; Eddings *1082v. Oklahoma (1982) 455 U.S. 104, 110 [71 L.Ed.2d 1, 8, 102 S.Ct. 869]; Lockett v. Ohio (1978) 438 U.S. 586, 604 [57 L.Ed.2d 973, 988-993, 98 S.Ct. 2954] (plur. opn. of Burger, C. J.).) In California, the jury’s consideration of mitigating evidence is limited by Penal Code section 190.3, which sets forth the aggravating and mitigating factors a jury may consider in deciding whether to return a judgment of death. In People v. Easley (1983) 34 Cal.3d 858 [196 Cal.Rptr. 309, 671 P.2d 813] (Easley) and cases following it, we recognized that former CALJIC No. 8.84.1, which was given here and which describes to the jury the factors it may consider under section 190.3, is “potentially confusing.” We expressed concern that a jury might construe the “factor (k)” portion of the instruction “to permit consideration only of circumstances that relate to the ‘gravity of the crime’ and not of circumstances that relate to the general character, family background or other aspects of the defendant.” (At p. 878.) Such a construction, we held, would violate the Eighth Amendment by impermissibly restricting the jury’s consideration of mitigating evidence.
To avoid misunderstandings in future cases, our opinion in Easley, supra, 34 Cal.3d at page 878, footnote 10, set forth a more expansive “factor (k)” instruction. Thereafter, when reviewing “pre-Easley” cases in which the trial court instructed the jury in the language of former CALJIC No. 8.84.1, we have examined the entire record—including all of the jury instructions and the closing arguments of counsel—to determine whether the jury was indeed misled by the instruction. (People v. Hamilton (1988) 46 Cal.3d 123, 146 [249 Cal.Rptr. 320, 756 P.2d 1348]; People v. Brown (1985) 40 Cal.3d 512, 544, fn. 17 [220 Cal.Rptr. 637, 709 P.2d 440].)
A similar analysis was employed by the United States Supreme Court in Boyde, supra, 494 U.S. 370. There, as in Easley, supra, 34 Cal.3d 858, the defendant challenged former CALJIC No. 8.84.1, contending that it misled the jury into believing it could not consider all of the evidence presented by the defense. The high court held that to determine whether a jury was misled by an assertedly ambiguous instruction such as former CALJIC No. 8.84.1, a reviewing court must decide “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” (494 U.S. at p. 380 [108 L.Ed.2d at p. 329].) Under the circumstances of that case, the Boyde court concluded, there was no reasonable likelihood that the jury had misapplied former CALJIC No. 8.84.1.2
The majority relies heavily on Boyde, supra, 494 U.S. 370, to conclude that the jury in this case did not misapply former CALJIC No. 8.84.1. This reliance is unfounded.
*1083One of the important factors cited by the high court in Boyde, supra, 494 U.S. 370, in support of its holding that the jury in that case was not misled, was the type of evidence presented in mitigation. There, the defense presented evidence of the defendant’s disadvantaged background and his strength of character in coping with a difficult childhood. The jury was instructed, in the language of former CALJIC No. 8.84.1, that it could consider “ ‘[a]ny . . . circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime,’ ” and was told that the term “ ‘extenuate’ ” meant “ ‘to lessen the seriousness of a crime as by giving an excuse.’ ” (Boyde, supra, 494 U.S. at p. 381 [108 L.Ed.2d at p. 330].) Unless otherwise misled, the high court held, a jury was likely to conclude from these instructions that it could consider evidence of the defendant’s disadvantaged background and his character strengths as a possible “excuse” for the seriousness of the crime. In other words, the jury was likely to reason that “ ‘ “defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.” ’ ” (Id. at p. 382 [108 L.Ed.2d at p. 330], italics in original, quoting Penry v. Lynaugh (1989) 492 U.S. 302, 319 [106 L.Ed.2d 256, 278, 109 S.Ct. 2934].)
Here, by contrast, the mitigating evidence defendant presented was of a very different nature. Defendant relied on evidence of his behavior after *1084commission of the crime, arguing in essence that despite the gravity of the crime he committed, he was nevertheless “worth saving.” Unlike evidence of a disadvantaged background, that evidence does not fit neatly, if it fits at all, into factor (k), because it is not an “excuse” for the commission of the crime. Thus, the jurors in this case were more likely to be misled when they attempted to apply former CALJIC No. 8.84.1 than were the jurors who evaluated the “disadvantaged background” evidence presented by the defendant in Boyde.
More important than the type of mitigating evidence offered in this case, however, was the prosecutor’s closing argument. Here, unlike Boyde, supra, 494 U.S. 370, Easley, supra, 34 Cal.3d 858, or any other case we have had before us, the prosecutor repeatedly argued to the jury that it legally could not consider any of the mitigating evidence presented by the defense. Despite defense counsel’s objection, this argument was not corrected by the trial court, which ruled that the prosecutor and defense counsel could present to the jury their opposing interpretations of the scope of factor (k).
The trial court’s ruling was wrong. The proper scope of factor (k) is a question of law, not of fact. It is the trial court’s duty to explain the law to the jury, not to place upon the jury the impossible burden of deciding which of two inconsistent views of the law is correct. The jurors in this case were laypersons; presumably they were unfamiliar with the legislative history of factor (k) or with cases interpreting the Eighth Amendment. Thus, they were totally unequipped to decide whether the prosecutor or defense counsel had correctly explained to them which evidence they were entitled to consider in deciding whether defendant should live or die. (See Griffin v. United States (1991) 502 U.S. _, _ [116 L.Ed.2d 371, 382-383, 112 S.Ct. 466, 474]: “Jurors are not generally equipped to determine whether a particular theory . . . submitted to them is contrary to law .... When . . . jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error.”)
Nonetheless, the majority confidently finds no reasonable likelihood that the jury erred in discharging the impossible burden placed upon it. The reasons for the majority’s conclusion do not withstand scrutiny.
The majority asserts that the prosecutor’s argument was “blunted” by the trial court’s remarks following defense counsel’s objection. (Maj. opn., ante, p. 1071.) Not so. The trial court overruled that objection, permitting the prosecutor to repeat the improper argument. Although the trial court told the jury that the arguments of counsel were “not evidence,” this admonition did *1085not assist the jury in evaluating the legal soundness of the prosecutor’s argument.
According to the majority, the prosecutor “implicitly conceded” that defendant’s mitigating evidence was relevant, by devoting “substantial attention” to it. (Maj. opn., ante, p. 1071.) But the prosecutor made no such concession. True, he did discuss defendant’s evidence, but he prefaced his remarks by reminding the jury that the evidence was not “applicable.” In essence, the prosecution asserted that even if the evidence of defendant’s Christian conversion was relevant, it did not outweigh the aggravating circumstances in this case. At no time did the prosecutor acknowledge, explicitly or implicitly, that the jury could legally consider defendant’s mitigating evidence.
The majority asserts that the jury must have believed that it could consider defendant’s mitigating evidence, because to conclude otherwise would transform defendant’s favorable penalty phase evidence into a “ ‘ “charade.” ’ ” (Maj. opn., ante, p. 1072.) Although this argument was persuasive in Boyde, supra, 494 U.S. at page 383 [108 L.Ed.2d at page 331], it is far less convincing under the facts of this case. In Boyde, faced only with an ambiguous instruction, the jury was unlikely to believe that the instruction required it to disregard the defense’s entire penalty presentation. Here, however, the jury was confronted not only with an ambiguous instruction, but with an explicit argument by the prosecutor that it should ignore the mitigating testimony offered by the defense. Any reluctance by the jury to believe that the defense had presented a “charade” may well have vanished in the face of this persuasive argument.
The majority maintains that the jurors must have considered defendant’s evidence of a Christian conversion, because they were told to consider “ ‘all of the evidence which has been received during any part of the trial. . . (Maj. opn., ante, p. 1072.) The majority, however, omits the conclusion to the instruction, which told the jury it could consider “all of the evidence which has been received during any part of the trial in this case, except as you may be hereafter instructed.” (Italics added.) The jury' may have believed that the instruction which immediately followed, former CALJIC No. 8.84.1, was the exception referred to by the italicized words quoted above, and that former CALJIC No. 8.84.1 limited the jury’s ability to consider the evidence presented by defendant.
An additional instruction also suggested to the jury that it should disregard the mitigating evidence presented by the defense. The court instructed the jury: “After having heard all of the evidence and after having heard and *1086considered the argument of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed.” (Italics added.) The court’s statement to the jury that its consideration of “all of the evidence” should be guided by “the arguments of counsel” and “the applicable factors of aggravating and mitigating circumstances,” was tantamount to an instruction to the jury that its power to consider the evidence was not unlimited. This instruction could only strengthen the prosecutor’s erroneous and repeated argument to the jury that it could not legally consider defendant’s mitigating evidence, and the jury may well have acted accordingly.
In the majority’s view, defense counsel’s closing argument accurately explained to the jury the meaning of former CALJIC No. 8.84.1. But the majority’s reliance on defense counsel’s closing argument is unfounded, because the trial court’s instructions deprived counsel of the necessary tools with which to defeat the prosecutor’s erroneous claim that the jury should disregard defendant’s mitigating evidence. Although defense counsel told the jury it was legally entitled to consider the evidence of defendant’s Christian conversion, he was unable to point to any language in former CALJIC No. 8.84.1 that would support this claim. Instead, he could only suggest that although the instruction was “awkwardly worded,” it nevertheless was designed to include the evidence presented by the defense. A reasonable jury would not have been persuaded by this unconvincing, unsupported assertion.
III.
As explained above, I find a “reasonable likelihood” (Boyde, supra, 494 U.S. at p. 380 [108 L.Ed.2d at p. 329]) that, based on the trial court’s instructions and the prosecutor’s misstatement of the law in his closing argument, the jury was misled into believing that it could not consider defendant’s evidence in mitigation when it decided to impose the death penalty. The question then is whether the error was harmless. Because the error violated defendant’s Eighth Amendment right to have the jury consider relevant mitigating evidence presented on his behalf, it was of federal constitutional dimension, and must be evaluated under the “beyond a reasonable doubt” test established in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 711-712, 87 S.Ct. 824, 24 A.L.R.3d 1965]. (People v. Hamilton, supra, 46 Cal.3d at p. 148.) I conclude that the error was prejudicial.
The jailhouse redemption evidence constituted defendant’s entire case in mitigation. Eight witnesses testified on defendant’s behalf, including a deputy sheriff at the jail who “would have had no particular reason to be *1087favorably predisposed toward one of [his] charges . . . .” (Skipper v. South Carolina, supra, 476 U.S. at p. 8 [90 L.Ed.2d at p. 9].) This evidence, if believed, might have persuaded the jury to spare defendant’s life. Although the crimes defendant committed were heinous, they were not of such magnitude as to make a death verdict a foregone conclusion. (Compare People v. Clark (1992) 3 Cal.4th 41, 162-163 [10 Cal.Rptr.2d 554, 833 P.2d 561].)
In sum, I cannot say beyond a reasonable doubt that had the jury believed it could consider the mitigating evidence presented by defendant, it would nevertheless have imposed a sentence of death. Accordingly, although I would affirm the convictions and the special circumstance finding, I would reverse the judgment of death.
Mosk, J., concurred.
Appellant’s petition for a rehearing was denied February 10, 1993. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.
The pertinent details are discussed in footnote 2, post.
The Attorney General’s concession I mentioned at the outset of my opinion occurred during oral argument before the high court in Boyde, supra, 494 U.S. 370. According to a brief filed by the Attorney General in this case, the circumstances surrounding the concession *1083were as follows: An amicus curiae brief filed on behalf of Boyde attempted to demonstrate the possibility that a jury could misread the scope of former CALJIC No. 8.84.1, by showing that in several cases the prosecutor had misread it. As supporting evidence, the amicus curiae brief in Boyde contained partial transcripts of other capital trials, including an excerpt from the prosecutor's closing argument in this particular case. After the defense attorney arguing Boyde before the United States Supreme Court made specific reference to that closing argument, one of the justices then asked the deputy attorney general arguing the case to respond. In the course of his argument, the deputy attorney general conceded that in this case the prosecutor’s closing argument misled the jury.
In a footnote to its opinion in Boyde, the United States Supreme Court rejected amicus curiae’s assertion that misinterpretation of former CALJIC No. 8.84.1 by prosecutors arguing to the jury in other cases showed that the jury in Boyde might have been confused. The court concluded that because prosecutors are “interested advocates,” their arguments are not reflective of the likely conclusions of “reasonable jurors.” (Boyde, supra, 494 U.S. at p. 386, fn. 6 [108 L.Ed.2d at p. 332].)
In this case, defendant has requested that we take judicial notice of the oral argument before the United States Supreme Court in Boyde. In his response, the Attorney General does not deny the concession in issue, but correctly points out that he is not bound by it.
The majority denies the request for judicial notice, concluding that the high court’s opinion in Boyde speaks for itself, and that the deputy attorney general’s comments at oral argument before that court in Boyde are irrelevant to a proper resolution of this case. (Maj. opn., ante, p. 1073.) But this court has always considered the officially expressed views of the Attorney General, the state’s chief law enforcement officer; and the Attorney General’s opinions are frequently cited as legal authority by courts and parties alike. We should not ignore the Attorney General’s views when, as in this case, they are expressed in oral argument before the nation’s highest court.