I dissent.
In my view, the judgment should be reversed in its entirety. I agree with Justice Broussard that defendant’s right to trial by a jury drawn from a representative cross-section of the community, which is guaranteed by both the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 16, of the California Constitution, was violated in this case by the systematic underrepresentation of Hispanics. (See dis. opn. of Broussard, J., post, at pp. 538-543.)
Further, the judgment should be reversed as to penalty on separate and independent grounds. As I shall explain, the verdict of death should be *531vacated because of Deere error (People v. Deere (1985) 41 Cal.3d 353 [222 Cal.Rptr. 13, 710 P.2d 925]) and also because of Brown error (People v. Brown (1985) 40 Cal.3d 512 [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]).
I
Defense counsel’s failure to present available evidence in mitigation at the penalty phase resulted in a verdict of death that does not satisfy the heightened degree of reliability required by the Eighth Amendment to the United States Constitution and article I, section 17, of the California Constitution.
After the guilt phase, defense counsel stated in substance that at defendant’s request and against his own best judgment, he would not participate in the penalty phase. He made it plain that he had mitigating evidence available: “[Defendant’s] mother, his father, his grandmother and his sister are all here in this courtrooni. I can put on the evidence.” But he also made it plain that at defendant’s request, he would not present such evidence.
At the penalty phase, the prosecution put on a case for death. Other than making a few objections, the defense did nothing at all.
In People v. Deere, supra, 41 Cal.3d 353, the court reversed a judgment of death on the ground that defense counsel’s failure to present evidence in mitigation—although in accord with his client’s wishes—rendered the penalty determination constitutionally unreliable. As I stated in my concurring and dissenting opinion in People v. Williams (1988) 44 Cal.3d 1127, 1158-1159 [245 Cal.Rptr. 635, 751 P.2d 901]:
“First, the [Deere\ court determined that counsel’s failure to present evidence in mitigation introduced error into the penalty proceeding.
“ ‘To permit a defendant convicted of a potentially capital crime to bar his counsel from introducing mitigating evidence at the penalty phase . . . would . . . prevent this court from discharging its constitutional and statutory duty to review a judgment of death upon the complete record of the case, because a significant portion of the evidence of the appropriateness of the penalty would be missing.
“ ‘This deficiency of the record implicates another paramount concern of the state: “in capital cases . . . the state has a strong interest in reducing the risk of mistaken judgments.” . . . Since 1976 the United States Supreme Court has repeatedly recognized that the qualitative difference between *532death and all other penalties demands a correspondingly higher degree of reliability in the determination that death is the appropriate punishment. (Woodson v. North Carolina (1976) 428 U.S. 280, 305 [49 L.Ed.2d 944, 961, 96 S.Ct. 2978] (plur. opn.).) And since 1978 the high court has insisted that the sentencer must be permitted to consider any aspect of the defendant’s character and record as an independently mitigating factor. (Lockett v. Ohio (1978) 438 U.S. 586, 604-605 [57 L.Ed.2d 973, 989-990, 98 S.Ct. 2954] (plur. opn. of Burger, C. J.).)
“ ‘To allow a capital defendant to prevent the introduction of mitigating evidence on his behalf withholds from the trier of fact potentially crucial information bearing on the penalty decision no less than if the defendant was himself prevented from introducing such evidence by statute or judicial ruling. In either case the state’s interest in a reliable penalty determination is defeated.’ (41 Cal.3d at pp. 363-364.)
“Next, the [Deere} court determined that so long as ‘the record . . . demonstrates “the possibility that at least someone might have been called to testify on defendant’s behalf and to urge that his life be spared” ’ (41 Cal.3d at p. 367, italics in original), the error introduced into the penalty proceeding by counsel’s failure to present evidence in mitigation cannot be deemed harmless. The court explained:
“ ‘When the sentencer in a capital case is deprived of all or a substantial part of the available evidence in mitigation, “the potential for prejudice is too obvious to require proof.” [Citation.] Indeed, “short of substituting a verdict of its own, there is no way for a reviewing court to determine what eifect unpresented mitigating evidence might have had on the sentencer’s decision.” [Citation.] We have no doubt that a judgment of death imposed in such circumstances constitutes a miscarriage of justice (Cal. Const., art. VI, § 13): not only did defendant not have a fair penalty trial—in eifect he had no penalty trial at all.’ (41 Cal.3d at p. 368.)”
I turn now to the case at bar. On the face of the record it is plain that Deere error occurred: at defendant’s request, counsel declined to present available evidence in mitigation, and indeed eifectively declined to participate in any manner in the penalty phase.
It is also plain that the error here cannot be deemed harmless. As in Deere, “the record . . . demonstrates ‘the possibility that at least someone might have been called to testify on defendant’s behalf and to urge that his life be spared.’ ” (People v. Deere, supra, 41 Cal.3d at p. 367, italics in original.) In this case, such potential witnesses were available, including defendant’s father and mother, his grandmother, and his sister.
*533Accordingly, I would set aside the verdict of death as constitutionally unreliable and would reverse the judgment as to penalty. (See People v. Deere, supra, 41 Cal.3d at p. 368.)1
II
The trial court committed error under People v. Brown, supra, 40 Cal.3d 512, by instructing the jury in accordance with the mandatory sentencing language of the final paragraph of Penal Code section 190.3 (hereafter section 190.3).
The statutory provision declares: “After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances . . ., and shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances.” (Italics added.)
The instruction stated: “After having heard all of the evidence, and after having heard and considered the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances . . . . [fl] If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death.” (Italics added.)
In Brown the court construed the final paragraph of section 190.3 as follows. “In [its] context, the word ‘weighing’ is a metaphor for a process which by nature is incapable of precise description. The word connotes a mental balancing process, but certainly not one which calls for a mere mechanical counting of factors on each side of the imaginary ‘scale,’ or the arbitrary assignment of ‘weights’ to any of them. Each juror is free to assign whatever moral or sympathetic value he deems appropriate to each and all *534of the various factors he is permitted to consider .... By directing that the jury ‘shall’ impose the death penalty if it finds that aggravating factors ‘outweigh’ mitigating, the statute should not be understood to require any juror to vote for the death penalty unless, upon completion of the ‘weighing’ process, he decides that death is the appropriate penalty under all the circumstances. Thus the jury, by weighing the various factors, simply determines under the relevant evidence which penalty is appropriate in the particular case.” (40 Cal.3d at p. 541, fn. omitted.)
Stated simply, the jury is “require[d]... to make a moral assessment on the basis of the character of the individual defendant and the circumstances of the crime and thereby decide which penalty is appropriate in the particular case.” (People v. Bonin (1989) 47 Cal.3d 808, 856 [254 Cal.Rptr. 298, 765 P.2d 460].) In other words, “The jury is not simply to determine whether aggravating factors outweigh mitigating factors and then impose the death penalty as a result of that determination, but rather it is to determine, after consideration of the relevant factors, whether under all the circumstances ‘death is the appropriate penalty’ for the defendant before it.” (People v. Myers (1987) 43 Cal.3d 250, 276 [233 Cal.Rptr. 264, 729 P.2d 698] (lead opn. by Grodin, J.).)2
*535In Brown, however, the court recognized that a jury might not understand an instruction incorporating section 190.3’s mandatory sentencing language in accordance with the construction of the provision that it had adopted. Specifically, the court acknowledged that the statutory language might mislead the jury as to the scope of their discretion to the defendant’s prejudice. (40 Cal.3d at p. 544, fn. 17.) 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). In other words, he might be misled as to the nature of the process by which penalty is determined. A juror might also 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 concludes that death is not the appropriate penalty under all the circumstances. (See id. at pp. 540-544.) That is to say, he might be misled as to the character of the ultimate question to be resolved in the process of determining penalty.
In deciding whether an instruction incorporating section 190.3’s mandatory sentencing language would constitute error in a given case, the court has applied the so-called “reasonable juror” standard, which was suggested in Brown itself: could a juror have reasonably understood the charge to carry a meaning that was contrary to the governing law?3
In this case, the trial court’s instruction on the determination of penalty might indeed have misled the jury as to the scope of their discretion to defendant’s prejudice. A reasonable juror could have understood the charge *536as requiring him simply to determine whether aggravating circumstances outweighed mitigating and then fix the penalty as the mandatory sentencing language directed. Review of the record discloses the following.
To begin with, the trial court instructed the jury in accordance with the mandatory sentencing language of the final paragraph of section 190.3 without material modification. As noted, the statutory provision declares, “the trier of fact . . . shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances.” (Italics added.) The instruction stated, “If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death.” (Italics added.)
Moreover, in anticipation of the trial court’s instruction, the prosecutor in his summation emphasized, and misleadingly explicated, the mandatory sentencing language. Indeed, he used that language to frame the “major premise” of his argument: “If aggravation outweighs mitigation, you must impose death. Aggravation does, in fact, outweigh mitigation. Therefore, you must impose death.”
The prosecutor opened his summation thus.
“Ladies and gentlemen, it now becomes your decision whether the penalty in this case to be imposed on Ronald Lee Sanders shall be death or life in the state prison without possibility of parole.
“I know the decision that you have to make is not a pleasant one and I certainly wouldn’t want you to take your job lightly. However, on the other hand, you have a sworn duty as jurors in this case to follow the law of this state as the court gives it to you when I have concluded my remarks.
“All of you told us during the jury selection process that you would not relish the idea of returning a death penalty verdict, however, you also told us that you could do so in the proper case.
“It is the law of the State of California that in certain cases the penalty for first degree murder with special circumstances shall be the death penalty.
“This, ladies and gentlemen, is one of those cases, ....
*537“The court will read to you certain aggravating factors and certain mitigating factors which you should take into consideration in making your decision.
“The court will tell you that you should take into account those factors and be guided by those factors in your deliberation, and then the court will read you a very important instruction which you cannot ignore because of a duty to the People of the State of California as well as the defendant who is on trial here.
“This instruction reads as follows:
“If you conclude that the aggravating circumstances in this case outweigh the mitigating circumstances, you shall impose the death penalty. In other words, you have got to look at the circumstances, the factors that the judge reads to you, make a determination if the aggravating circumstances outweigh the mitigating circumstances.
“If you conclude that they do, then it is your duty as jurors to return the death penalty in this case.
“I emphasize the word ‘shall’ there because every single aggravating circumstance that the court will read to you is present in this case and there are no mitigating circumstances.
“There is nothing to weigh because everything falls on one side of the weighing process. Therefore, under the law the proper sentence in this case is in fact the sentence of death.” (Italics added.)
The prosecutor then reviewed the statutory penalty factors and the evidence he claimed was relevant thereto. The gist of his argument was that aggravation was present and mitigation was absent.
Finally, the prosecutor closed his summation thus: “I will repeat that instruction to you again. If you would conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose the sentence of death. There are no mitigating circumstances in this case, and the proper penalty is the death penalty.” (Italics added.)
In arguing as he did, the prosecutor delivered the message that the law required the jury simply to determine whether aggravating circumstances outweighed mitigating circumstances and then fix the penalty as the mandatory sentencing language directed. That message, of course, was erroneous. It incorrectly described the character of the ultimate question to be resolved in the process of determining penalty: “The jury is not simply to determine *538whether aggravating factors outweigh mitigating factors and then impose the death penalty as a result of that determination . . . .” (People v. Myers, supra, 43 Cal.3d at p. 276 (lead opn. by Grodin, J.); see, e.g., People v. Bonin, supra, 47 Cal.3d at p. 856; People v. Brown, supra, 40 Cal.3d at p. 541.) To my mind, a reasonable juror could not have ignored the prosecutor’s words or missed their import.4
Accordingly, I conclude that the trial court’s instruction in accordance with the mandatory sentencing language of the final paragraph of section 190.3 might indeed have misled the jury as to the scope of their discretion to defendant’s prejudice. Therefore, I would set aside the verdict of death and reverse the judgment as to penalty. (See, e.g., People v. Farmer (1989) 47 Cal.3d 888, 931 [254 Cal.Rptr. 508, 765 P.2d 940].)
Ill
For the reasons stated above, I would reverse the judgment in its entirety.
In finding no prejudicial error, the majority rely on the proposition that “ ‘[T]he . . . reliability [required by the Eighth Amendment in death penalty cases] is attained when’ ”—as assertedly here—“ ‘the prosecution has discharged its burden of proof at the guilt and penalty phases pursuant to the rules of evidence and within the guidelines of a constitutional death penalty statute, the death verdict has been returned under proper instructions and procedures, and the trier of penalty has duly considered the relevant mitigating evidence, if any, which the defendant has chosen to present. . . .’” (Maj. opn., ante, at pp. 525-526, quoting People v. Bloom (1989) 48 Cal.3d 1194, 1228 [259 Cal.Rptr. 669, 774 P.2d 698], maj. opn. fn. omitted.) To my mind, that proposition is unsound. Reliability can be assured only when the record on which the verdict is based is “complete,” i.e., when it does not lack any “significant portion of the evidence of the appropriateness of the penalty” that counsel reasonably concludes “ ‘ . . . makes the most compelling case in mitigation.’ ” (People v. Deere, supra, 41 Cal.3d at pp. 363, 364, fn. 3.) It is obvious that the record here is not “complete” in that sense.
In Brown the court construed the final paragraph of section 190.3 as it did for three reasons: (1) to “honor[] the plain language of section 190.3”; (2) to give effect to “the most likely ‘constitutional’ intent of the drafters”; and (3) to “avoid[] the constitutional difficulties of a finding that the statute permits ‘mandatory’ death penalties.” (40 Cal.3d at p. 544.)
Very recently, in Boyde v. California (1990) 494 U.S. 370 [108 L.Ed.2d 316, 110 S.Ct. 1190], the United States Supreme Court impliedly held not unconstitutional the final paragraph of section 190.3 to the extent that it requires that “the trier of fact. . . shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances ‘outweigh’ the mitigating circumstances.” (Italics added.) (494 U.S. at pp. - [108 L.Ed.2d at p. 326, 110 S.Ct. at p. 1196].) In so doing, it relied primarily on Blystone v. Pennsylvania (1990) 494 U.S. 299 [108 L.Ed.2d 255, 110 S.Ct. 1078], which it had decided less than a week earlier.
After careful review, I believe that Boyde gives us no reason to reconsider Brown.
To be sure, Boyde has removed one of the bases on which the court founded its construction of the statutory provision. It now appears that there are no “constitutional difficulties” inherent in a “statute [that] permits ‘mandatory’ death penalties.” (40 Cal.3d at p. 544.)
But Boyde has had no effect whatever on the two other bases, i.e., “the plain language of section 190.3” and “the most likely ‘constitutional’ intent of the drafters” (40 Cal.3d at p. 544). Obviously, that decision does not change the words of the statutory provision or their meaning. Moreover, it contains nothing to support a conclusion that the drafters of the provision may have intended to “anticipate” the law as stated therein. The primary authority on which Boyde relies—i.e., Blystone—dates to 1990. By contrast, the drafters of section 190.3 did their work more than a decade earlier.
In my view, the construction of the final paragraph of section 190.3 that the court adopted in Brown retains its validity. From the reasoning in that decision it is manifest that the bases of statutory language and the drafters’ intent are sufficient to support the interpretation set forth therein. Accordingly, Boyde’s removal of the “avoidance of constitutional difficulties” basis is without effect for purposes here.
In People v. Marshall (1990) 50 Cal.3d 907, 933, footnote 5 [269 Cal.Rptr. 269, 790 P.2d 676], the court stated as follows: “In Boyde v. California (1990) 494 U.S. 370 [108 L.Ed.2d 316, 110 S.Ct. 1190], the United States Supreme Court held that ‘The legal standard for reviewing jury instructions claimed to restrict impermissibly a jury’s consideration of relevant evidence’ under the Eighth Amendment ‘is 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. Although a defendant need not establish that the jury was more likely than not to have been impermissibly inhibited by the instruction, a capital sentencing proceeding is not inconsistent with the Eighth Amendment if there is only a possibility of such an inhibition.’ (Id. at pp._,_ [108 L.Ed.2d at p. 329].) It appears to follow that the same standard is applicable for reviewing jury instructions claimed to restrict impermissibly a jury’s sentencing discretion under the Eighth Amendment.” (Italics added.)
That the so-called “reasonable likelihood” standard may apply to a claim that a given instruction impermissibly restricted a jury’s sentencing discretion under the Eighth Amendment does not mean that that test should apply to a claim—like the present (see fn. 2, ante)— that a given instruction impermissibly restricted a jury’s sentencing discretion under section 190.3. The choice of the relevant standard here is plainly a matter of state law. I would adhere to the “reasonable juror” test. I certainly would not depart from it in favor of the “reasonable likelihood” test—which is manifestly both novel and unsound (Boyde v. California, supra, 494 U.S. at pp. _, _ [108 L.Ed.2d at pp. 334-341, 110 S.Ct. at pp. 1202-1207] (dis. opn. of Marshall, J.)).
In concluding that the trial court did not commit Brown error, the majority rely on a reading of the summation that treats the prosecutor’s comments on the mandatory sentencing language as sound and, in any event, discrete and insignificant. In light of the record set out above, such a reading is at the very least dubious. As explained, the prosecutor’s remarks framed the “major premise” of his argument for death. Further, they misstated the law. The majority’s assertion to the contrary notwithstanding, it is simply not the case that “for those defendants as to which a jury decides the aggravating circumstances outweigh the mitigating circumstances, the Penal Code provides that the appropriate penalty is death.” (Maj. opn., ante, at p. 523.) “The jury is not simply to determine whether aggravating factors outweigh mitigating factors and then impose the death penalty as a result of that determination, but rather it is to determine, after consideration of the relevant factors, whether under all the circumstances ‘death is the appropriate penalty’ for the defendant before it.” (People v. Myers, supra, 43 Cal.3d at p. 276 (lead opn. by Grodin, J.).)