I respectfully dissent for the reasons set forth in my opinion in People v. Fields (1983) 35 Cal.3d 329, 374-386 [197 Cal.Rptr. 803, 673 P.2d 680] (dis. opn. of Bird, C. J.). Further, appellant’s objections to the search warrant should be carefully re*736viewed and a significant instructional error at the penalty phase should be noted.
I.
The majority hold that appellant’s objections to the seizure of his personal diaries was sufficient because of a purported “different rule” regarding reviewability of errors in capital cases. (Maj. opn., ante, at p. 729, fn. 3.) I agree that the objections were sufficient to preserve the issue. A number of reasons, which are well-settled in our law and borne out by the record in this case, compel that conclusion.
This court has generally been reluctant to find that an accused forfeits his right to appellate review by failing to make a timely or proper objection, if such a finding would result in substantial injustice. Nearly 40 years ago, this court observed that “[njotwithstanding the rule that the specific ground for an objection must be given and the particular portion of evidence which is inadmissible must be pointed out where other parts are admissible, ‘technicalities should be liberally viewed when urged against a defendant in a criminal case. . . .’” (People v. Bob (1946) 29 Cal.2d 321, 325 [175 P.2d 12].) In essence, this principle recognizes that a failure to object is not necessarily the result of any conscious decision made by the accused, but rather “is [often] born of the inadvertence, negligence, inexperience, or incompetence of trial counsel.” (Wainright v. Sykes (1977) 433 U.S. 72, 104 [53 L.Ed.2d 594, 619, 97 S.Ct. 2497] [dis. opn. of Brennan, J.]; see Wangerin, “Plain Error” and “Fundamental Fairness”: Toward a Definition of Exceptions to the Rules of Procedural Default (1980) 29 DePaul L.Rev. 753, 757 [hereafter “Plain Error”].)1
The majority are correct in noting that this principle rings especially true in death penalty cases. As this court observed in Bob, “[t]he Legislature of California has taken extraordinary precaution to safeguard the rights of those upon whom the death penalty is imposed ... by providing for an automatic appeal . . . and enjoining upon this court an examination of the record and the preparation of a formal opinion and decision from which it should appear that no miscarriage of justice has resulted. In view of this declared policy, ... it would seem appropriate for this court to take a *737liberal view of the technical rules applicable to criminal cases generally [citation] and examine the record with the view of determining whether or not in the light of all that transpired at the trial of the case a miscarriage of justice has resulted.” (29 Cal.2d at p. 328.)
Witkin has suggested that “in any case involving a serious crime, and particularly a capital case, the requirement of a proper objection may be greatly relaxed.” (Witkin, Cal. Evidence (2d ed. 1966) § 1292, pp. 1195-1196, italics added.) At least one state’s high court has gone so far as to provide a “death penalty exception” to the rule requiring a proper and timely objection, reasoning that in such cases “[i]t is far more important to society and constitutional government that the accused be accorded a fair and impartial trial than that he be required to forfeit his life in expiation of his crime, no matter how guilty the facts fairly adduced might have proven him to have been.” (Edwards v. Commonwealth (1944) 298 Ky. 366, 375 [182 S.W.2d 948]; see generally Comment, The Contemporaneous Objection Rule: Time for a Re-examination (1979) 67 Ky.L.J. 212, 220-221.) Illinois has for quite some time had a “plain error” rule—applied frequently in death penalty cases—which permits review of an unobjected-to ruling where the error affected the “substantial rights” of the accused. (111. Code Crim. Proc., § 121-9 (1963), repealed by Laws 1967, p. 3615, § 1, eff. Sept. 5, 1967, see now rule 615(a), Ill. Supreme Ct. Rules; see, e.g., People v. Manzella (1973) 56 Ill.2d 187, 195-196 [306 N.E.2d 16], overruled on other grounds in People v. Huckstead (1982) 91 Ill.2d 536, 548 [440 N.E.2d 1248]; see “Plain Error,” op. cit. supra, 29 DePaul L.Rev. at pp. 771-778.)
It is true that Evidence Code section 353 requires a timely and particularized objection to erroneously admitted evidence.2 However, that requirement is not a hard and fast one. Even the Assembly Judiciary Committee comment to that statute permits an exception to the objection requirement. (“Section 353 is, of course, subject to the constitutional requirement that a judgment must be reversed if an error has resulted in a denial of due process of law. ”)
The objection requirement has a few other well established exceptions. As this court has noted, “[a]n objection is sufficient if it fairly apprises the trial court of the issue it is being called upon to decide. [Citations.] In a criminal case, the objection will be deemed preserved if, despite inadequate *738phrasing, the record shows that the court understood the issue presented. ” (People v. Scott (1978) 21 Cal.3d 284, 290 [145 Cal.Rptr. 876, 578 P.2d 123]; see People v. Bob, supra, 29 Cal.2d at pp. 325-326.) In addition, if the trial court considered and ruled on the issue as if an objection had been properly made, appellate review is permitted. (People v. Abbott (1956) 47 Cal.2d 362, 372-373 [303 P.2d 730].)
In this case, appellant’s written points and authorities on the overbreadth issue were brief and conclusory. The issue was raised in general terms with a few examples cited from the cases. However, the prosecutor’s written response framed the issue more precisely for the court and made it clear that he fully understood the specific contention raised. His entire response to the overbreadth contention was devoted to a defense of paragraphs 2 and 8 of the warrant—the clauses dealing with “documentary evidence”—which are precisely the paragraphs at issue in this appeal.3
After reviewing at length several cases on the issue, the prosecutor concluded that “it is a rare case where there can be certainty as to precisely which documentary items are on the premises to be searched . . . .” (Italics added.) While appellant may have failed to explicitly specify which clause or clauses in the warrant he was challenging as overbroad, the prosecutor understood appellant’s objections. As a result, the issue was squarely presented to the court by both sides.
When the matter came up for hearing, both parties submitted the over-breadth issue without further discussion. That submission must be viewed in the context of the written materials which were before the court. Since the prosecutor’s response focused on the precise clauses which are at issue in this appeal, in essence the trial court did understand the objection and did rule on it, and no further discussion was necessary. Under Bob, Scott, and Abbott, these facts are sufficient to permit review of the overbreadth issues raised on appeal.
There is other decisional authority which permits this court to address the merits of appellant’s claim. Consider People v. Webb (1967) 66 Cal.2d 107 [56 Cal.Rptr. 902, 424 P.2d 342, 19 A.L.R.3d 708], in which the appellant claimed various Fourth Amendment violations in the seizure of narcotics from his automobile. Trial counsel had made only a “general objection on the ground of illegal search and seizure in a colloquy with the court at the *739commencement of trial.” (Id., at p. Ill, fn. 1.) Nevertheless, “[i]n view of the fundamental constitutional question involved and the relative simplicity of the facts,” this court “consider[ed] that objection to be continuous and sufficient to bring the matter before [it] on the merits.” (Ibid.; see also People v. Pranke (1970) 12 Cal.App.3d 935, 949 [91 Cal.Rptr. 129] [an “objection made against a backdrop of . . . undisputed facts” is sufficient to give an appellant the right to raise a search and seizure issue for the first time on appeal, (dis. opn.)].)
The facts here are no more complex and the issues no less fundamental than in Webb. The seizure at issue involves the state’s interference with a most precious right—the privacy of a citizen’s personal papers. Since appellant’s overbreadth claim relates solely to the warrant and its supporting affidavit rather than to any disputed issues of fact, only questions of law remain.
There are other reasons for reaching the overbreadth objection here. It is well established that the function of an objection is “to alert the [trial] court to the risk of error and permit it to avoid that error . . . .” (People v. Velasquez (1980) 26 Cal.3d 425, 444 [162 Cal.Rptr. 306, 606 P.2d 341], judgment vacated and cause remanded (1980) 448 U.S. 903 [65 L.Ed.2d 1132, 100 S.Ct. 3042], reiterated (1980) 28 Cal.3d 461 [171 Cal.Rptr. 507, 622 P.2d 952].)4 Without an objection requirement, the prosecution would be deprived “of the opportunity to cure [a] defect at trial and ‘[the defendant would be permitted] to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.’” (People v. Rogers (1978) 21 Cal.3d 542, 548 [146 Cal.Rptr. 732, 579 P.2d 1048]; see People v. Velasquez, supra, 26 Cal.3d at p. 444, fn. 14.) The objection requirement also ensures fairness to both the opposing party and the trial court, guaranteeing each an opportunity to litigate and consider, respective*740ly, “the facts and inferences relating to the adverse party’s contentions.” (People v. Manning (1973) 33 Cal.App.3d 586, 601 [109 Cal.Rptr. 531].)
These principles apply, obviously, in the Fourth Amendment context.5 Accordingly, this court had held that evidence admitted without any objection on search and seizure grounds may not be challenged for the first time on appeal. (People v. Gallegos (1971) 4 Cal.3d 242, 249-250 [93 Cal.Rptr. 229, 481 P.2d 237].)
The requirement of a particularized objection also holds true in the Fourth Amendment context. For example, it has been held that a stipulation to probable cause at trial bars review of that issue on appeal, since the prosecution was deprived of the opportunity to adduce evidence below on that point. (People v. Payne (1969) 1 Cal.App.3d 361, 364-365 [81 Cal.Rptr. 635].) Similarly, an accused’s lack-of-probable-cause-to-arrest objection has been held insufficient to preserve a contention that the arrest was made outside the arresting officer’s jurisdiction (People v. Talley (1967) 65 Cal.2d 830, 837-838 [56 Cal.Rptr. 492, 423 P.2d 564]), or that the officers did not comply with the knock-notice requirements of Penal Code section 1531.6 (People v. Kizzee (1979) 94 Cal.App.3d 927, 934 [156 Cal.Rptr. 784]; People v. Lopez (1978) 81 Cal.App.3d 103, 107-108 [87 Cal.Rptr. 178].) Also, a lack-of-consent objection to the admission of a recorded telephone conversation (see § 631) has been held insufficient to preserve the contention that the consent was coerced. (People v. Blend (1981) 121 Cal.App.3d 215, 229 [175 Cal.Rptr. 263].)
A premise common to all of the foregoing cases—none of which involve challenges to the facial validity of a search warrant or its supporting affidavit—is that an objection is necessary to give the opposing party and the court an opportunity to offer and consider, respectively, “ ‘additional evidence on the issue raised by the objection.’”7 (People v. Payne, supra, 1 *741Cal.App.3d at p. 365.) Conversely, if no additional evidence could have been presented had a more particularized objection been proffered, fairness has been preserved. Where the record is as complete as it would have been had a more particularized objection been made, appellate review of the ruling works no injustice to the opposing party and does not foreclose the trial court from having made a more informed ruling.
This corollary applies when an overbreadth challenge is made to a search warrant or its supporting affidavit. It is established that “[wjhether the description in the warrant of the property to be seized is sufficiently definite is a question of law on which an appellate court makes an independent judgment. ” (Thompson v. Superior Court (1977) 70 Cal.App.3d 101, 108 [138 Cal.Rptr. 603].) Further, the reviewing court “is confined to the language of the warrant; [it] cannot speculate as to the subjective intent of the magistrate when he signed the warrant.” (Id., at p. 111.) Furthermore, with exceptions not here applicable,8 neither a trial court nor a reviewing court may resort to facts outside the affidavit to determine whether the affidavit establishes probable cause for the issuance of the warrant. Consequently, the prosecution may not present, and the trial court may not consider, any additional testimony in defending and ruling on, respectively, an accused’s overbreadth objection. Since review of the sufficiency of the warrant and its affidavit must be had without resort to such evidence, it is clear that appellant’s overbreadth objection was sufficient to preserve his contentions asserted in this appeal.
H.
Since appellant’s overbreadth objections are proper, I turn to the merits of his claim.
On October 18, 1978, the superior court issued a warrant to search the home of appellant and his wife. Among the items authorized by the warrant to be seized were “(2) documentary evidence tending to show the whereabouts of Theodore Frank during March 14 and 15, 1978, including, but *742not limited to . . . personal diary notations which would indicate the whereabouts of Theodore Frank on those dates” and “(8) [s]crapbooks, newspaper clippings, photographs (developed or undeveloped), tape recordings or writings which could relate to the death of Amy [S.] and would indicate either participation and/or an interest in that death by Theodore Frank[.]”
A search was conducted the next day. Among the numerous items seized were unused wedding announcements, various sales and advertisement brochures, two novels, and notes and diagrams for ballroom dance steps.
In addition, three pocket-sized notebooks were found in appellant’s wife’s dresser drawer.9 The notebooks were the diary of appellant’s private thoughts, written between 1974 and 1976, while he was in custody at Atascadero State Hospital. Appellant had been committed for an indeterminate period for treatment as a result of prior child molestation convictions. (See former Welf. & Inst. Code, § 6316.) The last entry in the diary was made approximately a year and a half prior to the crimes for which the police were seeking evidence.
The thoughts set down in these diaries are detailed and of an intimate nature. They concern appellant’s struggle to understand the motivations behind the crimes he had committed and were utilized as an aid to his psychiatric treatment at the hospital.
A number of passages from the diaries were entered into evidence against appellant at trial to demonstrate that he had engaged in a pattern of prior behavior similar to that involved in the crime charged. In addition, the prosecutor quoted extensively from the diaries during his closing arguments at both the guilt and penalty phases.
The freedom from governmental intrusion into an individual’s papers has long been recognized in the law. Even before the American Revolution, the English Court of Common Pleas stated “Papers are the owner’s goods and chattels: they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection . . . .” (Entick v. Carrington (1765) 19 Howell State Trials 1029, 1066.)
This concern for the inviolability of one’s private papers has also been reflected in opinions of the United States Supreme Court. Justice Marshall has observed that the court’s decisions which have afforded protection to private papers under the Fifth Amendment “represent a deeply held belief *743on the part of the Members of [the] Court throughout its history that there are certain documents no person ought to be compelled to produce at the Government’s request.” (Fishery. United States (1976) 425 U.S. 391, 431-432 [48 L.Ed.2d 39, 68, 96 S.Ct. 1569] and cases cited therein (cone, opn.).)
Justice Brennan has noted that “[a] precise cataloguing of private papers within the ambit of the privacy protected by the [Fifth Amendment] privilege is probably impossible. . . . [|] . . . [W]hile letters, being necessarily interpersonal, are not wholly private, their peculiarly private nature and the generally narrow extent of their disclosure would seem to render them within the scope of the privilege. Papers in the nature of a personal diary are a fortiori protected under the privilege.” (Id., at pp. 426-427 [48 L.Ed.2d at pp. 65-66], italics added (conc. opn.).)
Several lower federal courts have suggested that a diary containing incriminating material may not be used against its author without breaching Fifth Amendment standards. (See, e.g., United States v. Stern (S.D.N.Y. 1964) 225 F.Supp. 187, 192; United States v. Boyette (4th Cir. 1962) 299 F.2d 92, 95, cert. den. sub. nom., Mooring v. United States (1962) 369 U.S. 844 [7 L.Ed.2d 848, 82 S.Ct. 875].)
These concerns also arise in the Fourth Amendment context. Even when the “mere evidence” rule was abandoned in Warden v. Hayden (1967) 387 U.S. 294, 300-301 [18 L.Ed.2d 782, 788, 87 S.Ct. 1642], the Supreme Court explicitly reserved the question as to whether “there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure.” (Id., at p. 303 [18 L.Ed.2d at p. 789]; see also People v. Sirhan (1972) 7 Cal.3d 710, 740 [102 Cal.Rptr. 385, 497 P.2d 1121].) And, as the Colorado Supreme Court has observed, “it would be difficult to imagine what ‘papers and effects’ should be more entitled to privacy than one’s personal diary.” (People v. Williams (1976) 192 Colo. 249 [557 P.2d 399, 403], fn. omitted.) The drafters of the Model Code of Pre-Arraignment Procedure have explicitly recognized that personal diaries should not normally be subject to governmental seizure. (Model Code of Pre-Arraignment Procedure (1975) § SS 210.3, subd. (2), p. 124.)10
*744For these reasons, warrants which deal with the seizure of personal diaries deserve more than superficial scrutiny. Such warrants should never be issued when no factual justification appears in the affidavit. When such justification does appear, the warrant should be drafted with specificity so as to ensure the sanctity of personal writings which are not relevant to the criminal activity being investigated. Although these rules are firmly rooted in the Constitution, they were not followed in this case. As a consequence, the diaries were illegally seized and the trial court erred in admitting them into evidence.
The probable cause sufficient for issuance of a warrant requires a showing that makes it “substantially probable that there is specific property lawfully subject to seizure presently located in the particular place for which the warrant is sought.” (People v. Cook, supra, 22 Cal.3d at p. 84, fn. 6.) That showing must appear in the affidavit offered in support of the warrant. (Ibid.; see People v. Stout (1967) 66 Cal.2d 184, 193 [57 Cal.Rptr. 152, 424 P.2d 704].)
The affidavit must set forth more than the “ ‘mere conclusion’ ” of the affiant that the items sought are located on the premises to be searched. (Aguilar v. Texas (1964) 378 U.S. 108, 113 [12 L.Ed.2d 723, 728, 84 S.Ct. 1509], overruled on other grounds Illinois v. Gates (1983) 462 U.S. 213, 238 [76 L.Ed.2d 527, 548, 103 S.Ct. 2317].) The affidavit must present the magistrate with facts indicating the circumstances underlying the affiant’s belief in order that the magistrate may judge their persuasiveness for himself. (Ibid.; Giordenello v. United States (1958) 357 U.S. 480, 486 [2 L.Ed.2d 1503, 1509, 78 S.Ct. 1245]; Nathanson v. United States (1933) 290 U.S. 41, 47 [78 L.Ed. 159, 161, 54 S.Ct. 11].)
It is “axiomatic” that a warrant can authorize a search no broader “than the facts supporting its issuance.” (Burrows v. Superior Court (1974) 13 Cal.3d 238, 250 [118 Cal.Rptr. 166, 529 P.2d 590], citation omitted.) The Constitution’s requirement of specificity requires that the affidavit set forth a factual basis for inclusion in the warrant of each of the items to be seized.
Here, the affidavit in support of the warrant was 32 pages in length. Yet, within those pages there was not one single fact or suggestion to sup*745port the notion that appellant possessed “writings” or “personal diary notations,” or that, if he possessed such items, they would be located at his home. While the affidavit may have contained facts sufficient for probable cause to search for some of the items listed in the warrant, it certainly did not do so with regard to the diaries which were seized.
“The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.” (Zurcher v. Stanford Daily (1978) 436 U.S. 547, 556, fn. omitted [56 L.Ed.2d 525, 535, 98 S.Ct. 1970].) Although the affidavit may have stated facts which created a strong likelihood that appellant was the individual who abducted and killed the victim and that evidence of the crime might logically be found at his residence, these facts would not have justified the seizure of appellant’s diaries.
The absence of probable cause in the affidavit was alone sufficient to invalidate the seizure of appellant’s diaries. However, the two provisions of the warrant which purported to authorize their seizure were constitutionally invalid for an additional reason.
A warrant must meet the requirement that it “particularly describ[e] the place to be searched, and the persons or things to be seized.” (U.S. Const., 4th Amend.) The description must be sufficiently particular so that “ ‘ “[a]s to what is to be taken, nothing is left to the discretion of the officer executing the warrant.”’” (Andresen v. Maryland (1976) 427 U.S. 463, 480 [49 L.Ed.2d 627, 642, 96 S.Ct. 2737], citations omitted.) This rule “is designed to prevent general exploratory searches which unreasonably interfere with a person’s right to privacy. . . . The Penal Code demands reasonable particularity (§ 1529), and this requirement is held to be satisfied if the warrant imposes a meaningful restriction upon the objects to be seized.” (Burrows v. Superior Court, supra, 13 Cal.3d at p. 249, citations omitted.)
Warrants which identify “articles ... in general terms [which] are ordinarily innocuous and are not necessarily connected with a crime. . . . place[] no meaningful restriction on the things to be seized.” (Aday v. Superior Court (1961) 55 Cal.2d 789, 796 [13 Cal.Rptr. 415, 362 P.2d 42].) A warrant so drafted “is similar to the general warrant permitting unlimited search, which has long been condemned.” (Ibid., citations omitted.)
That the warrant place a meaningful restriction on the items to be seized is particularly important in the context of document searches because of the extent to which an individual’s privacy could unlawfully be invaded in car*746rying out a search. As Learned Hand once observed, “the real evil aimed at by the Fourth Amendment is the search itself, that invasion of a man’s privacy which consists in rummaging about among his effects to secure evidence against him.” (United States v. Poller (2d Cir. 1930) 43 F.2d 911, 914 [74 A.L.R. 1382].)
“ ‘ “Even a particularized] warrant to seize [incriminating] papers alone, without mentioning the titles of them, may prove highly detrimental [to the right of privacy], since in that case, all a man’s papers must be indiscriminately examined, and such examination may bring things to light which it may not concern the public to know, and which yet it may prove highly detrimental to the owner to have made public . . . (1 LaFave, Search and Seizure (1978) § 2.6, p. 397, quoting from Taylor, Two Studies in Constitutional Interpretation (1969) pp. 67-68, quoting from 16 The Parliamentary History of England (1813) pp. 10-11, proceedings on Jan. 29, 1765.)
As has been more recently noted, “the particularity command of the fourth amendment, along with probable cause, is the only protection a citizen now has against a general search of his private papers.” (United States v. Abrams (1st Cir. 1980) 615 F.2d 541, 547 [53 A.L.R.Fed 663].)
Here, the description of the “documentary evidence” to be seized pursuant to paragraph (2) of the warrant placed no meaningful limit on the officer’s discretion concerning the scope of the search. The authorization to search extended to all such evidence “tending to show the whereabouts of Theodore Frank during March 14 and 15, 1978 . . . .” That search inevitably entailed a “general, exploratory rummaging” through all of appellant’s papers, the very type of indiscriminate police conduct which the Fourth Amendment’s particularity requirement specifically prohibits. (See Coolidge v. New Hampshire (1971) 403 U.S. 443, 467 [29 L.Ed.2d 564, 583, 91 S.Ct. 2022]; Griffin v. Superior Court (1972) 26 Cal.App.3d 672, 694-695 [103 Cal.Rptr. 679]; Lockridge v. Superior Court (1969) 275 Cal.App.2d 612, 625 [80 Cal.Rptr. 223].)
Paragraph (8) of the warrant authorized a search no less intrusive than that of paragraph (2). In order to locate evidence to be used against appellant, the officers would have had not only to rummage through, but to read all of his “writings” in order to discover those which “could relate to the death of Amy [S.] and would indicate either participation and/or an interest in that death . ...” No meaningful limitation was placed upon the scope of the search by this paragraph.
Graphic proof of the warrant’s lack of particularity is the fact that many irrelevant papers were seized pursuant to this warrant. The police seized *747fifty-one greeting cards, seven unused wedding announcements, six poems authored by appellant’s daughter, two novels, one book of poetry, one Gestalt therapy paperback, six pages of notes and diagrams of various dance steps, thirty-two personal letters, nine Blue Book examinations, the guest list from appellant’s 1977 wedding, newspaper clippings about the wedding, correspondence with attorneys in Kern County and Missouri, the sales brochure for an automobile, hundreds of pages of notes from Atascadero State Hospital therapy groups, family budget sheets, an Alcoholics Anonymous attendance certificate, advertisement brochures from a pipe company and a department store, a catalogue from a local learning center, and appellant’s marriage dissolution decree from Missouri. Such indiscriminate seizure of items is strong indication that the warrant granted impermissibly broad discretion to the executing officers. (See Andresen v. Maryland, supra, 427 U.S. at p. 493 [49 L.Ed.2d at p. 650] (dis. opn. of Brennan, J.).)
The particularity requirement of the Constitution is supposed to avoid the evil of the “general warrant,” thereby preventing “general, exploratory rummaging” through an individual’s papers. The warrant requirement ensures that the scope of a search be as limited as possible. The warrant in the present case can scarcely be said to have been “reasonably specific.” It authorized government agents to rummage indiscriminately through all of the possessions of appellant and his wife, including those that were innocent or innocuous, in a general quest for items “potentially relevant” to the crime under investigation.
This warrant placed no meaningful restriction on the scope of the search of appellant’s papers. It authorized a search as extensive as that allowed by the “general warrants” which our founding fathers attempted to guard against when they placed the Fourth Amendment into our Bill of Rights. (See Boyd v. United States (1886) 116 U.S. 616, 624-630 [29 L.Ed. 746, 748-751, 6 S.Ct. 524].) The trial court’s ruling upholding this warrant effectively takes us back to the days of general warrants which authorized the King’s minions to invade a citizen’s home and search without limit for evidence of suspected crime.
Since neither the affidavit nor the warrant comported with the Fourth Amendment’s requirement of particularity, the seizure of appellant’s personal diaries pursuant thereto was unlawful, and their introduction into evidence was error.
III.
Although today’s majority reverse the penalty verdict as a result of the erroneous admission of the diaries, I note an additional issue—heretofore *748not dealt with in any of this court’s decisions on the 1977 death penalty law—which would require reversal of the penalty phase verdict, even in the absence of error in admitting evidence of the diary entries. The issue was raised by the parties to this appeal in a supplemental brief filed after argument, and was explored at some length by this court in People v. Easley (1983) 34 Cal.3d 858 [196 Cal.Rptr. 309, 671 P.2d 813]. The question is whether the penalty phase instructions were constitutionally deficient for failing to inform the jury how to consider mitigating factors proffered by the accused other than the factors enumerated in former Penal Code section 190.3.
A.
In Lockett v. Ohio (1978) 438 U.S. 586, 604 [57 L.Ed.2d 973, 990, 98 S.Ct. 2954], the Supreme Court held that “the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. ...[!]... [A] statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant’s character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.” (Id., at pp. 604-605 [57 L.Ed.2d at p. 990], italics in original, fns. omitted.)
The high court reaffirmed this holding in Eddings v. Oklahoma (1982) 455 U.S. 104 [71 L.Ed.2d 1, 102 S.Ct. 869]. This court, too, has made clear that a constitutional death penalty scheme must direct the jury to “ ‘weigh the sympathetic elements of defendant’s background against those that may offend the conscience.’” (People v. Robertson (1982) 33 Cal.3d 21, 58 [188 Cal.Rptr. 77, 655 P.2d 279], quoting People v. Haskett (1982) 30 Cal.3d 841, 863 [180 Cal.Rptr. 640, 640 P.2d 776].)
Clearly, if the jury must be permitted to give “independent mitigating weight” to whatever “aspect of [the] defendant’s character or record . . . the defendant proffers as a basis for a sentence less than death” (Lockett v. Ohio, supra, 438 U.S. at pp. 604-605 [57 L.Ed.2d at p. 990]), the jury must be so informed. The commands of Lockett are not satisfied if mitigating evidence simply is admitted without accompanying directions authorizing the jury to weigh that evidence in its determination of penalty. Rather, the jury must be informed of the legal standards to which the evidence applies.
*749In California, the necessary “legal standards” are the factors listed in Penal Code section 190.3 and communicated to the jury via instructions.11 In the present case, those instructions were former CALJIC Nos. 8.88.1 and 8.89, which told appellant’s jury to “consider, take into account and be guided by” 10 specified factors and to arrive at a verdict of life imprisonment or death “[ajfter having considered all of the evidence in this case and having taken into account all the applicable factors upon which you have been instructed. ” (Supp. Service pamp. No. 1 (1978), p. 84, italics added.12)
Only one of the ten factors upon which appellant’s jury was instructed even arguably conveyed the Lockett rule, i.e., former factor (j) (now, factor (k)). Pursuant to this factor, appellant’s jury was authorized to take into account “[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.”
However, this factor is not adequate to meet Lockett's requirements. It authorizes the jury to consider only those circumstances which extenuate the gravity of the crime. It fails to tell the jurors that they are free to give independent mitigating weight to those aspects of an individual’s character or record which do not pertain to “the crime” of which he was convicted. Lockett itself demonstrates the inadequacy of factor (j), for Lockett requires that a jury be allowed to consider as mitigation not merely “any of the circumstances of the offense” but also the “defendant’s character and record.” (438 U.S. at p. 605 [57 L.Ed.2d at p. 990].)
Indeed, this court has already recognized the inadequacy of the factor (j) language. In People v. Easley, supra, 34 Cal.3d 858, 878, this court explained that the factor (j) instruction “does not explicitly inform the jury that it may consider any mitigating factor proffered by the defendant. . . . [A] jury . . . could reasonably construe the instruction’s language to permit consideration only of the circumstances that relate to the ‘gravity of the crime' and not of circumstances that relate to the general character, family *750background or other aspects of the defendant.” (Id., at p. 878, fn. omitted, italics in orig.)13
The Easley court did not reach the question of whether this language by itself was sufficient to meet the demands of Lockett, but it did indicate that there was “some force” to the argument that the instruction was “potentially confusing.” (34 Cal.3d at p. 878.) Thus, to “avoid potential misunderstanding in the future,” the court directed trial courts to supplement the language of the instruction with additional language based on Lockett. (Ibid., fn. 10.)14
The question of the adequacy of this instruction arose again in People v. Lanphear (1984) 36 Cal.3d 163 [203 Cal.Rptr. 122, 680 P.2d 1081]. As this court explained, the instruction leads the jury to believe “that mitigating evidence relevant to the defendant’s background and character, which may give rise to sympathy, is not entitled to the same consideration in weighing mitigating against aggravating factors as evidence that extenuates moral culpability.” (Id., at p. 168, fn. 1.) When viewed in combination with an erroneous instruction telling the penalty jury to disregard pity or sympathy for the accused (CALJIC No. 1.00 4th ed. 1979), the instructions are constitutionally inadequate, “[bjecause they . . . fail[] to tell the jury that any aspect of the defendant’s character or background [may] be considered mitigating and [may] be a basis for rejecting death even though it [does] not necessarily lessen culpability[.]” (36 Cal.3d at pp. 167-168.)
In this case, the court did not instruct the jury not to consider sympathy for appellant at penalty phase. Nor did any of the penalty phase instructions explicitly—and in so many words—forbid the jurors from considering mitigating factors beyond those enumerated in section 190.3. However, the instructions were worded in such a way that a reasonable juror was likely to conclude that the list of enumerated mitigating factors was exclusive. At the very least, a reasonable juror “could have interpreted the instruction^] ” in a manner contrary to Lockett. (Cf. Sandstrom v. Montana (1979) 442 U.S. 510, 514 [61 L.Ed.2d 39, 45, 99 S.Ct. 2450].)
Appellant’s jury was told that, after considering the evidence, “[y]ou shall consider, take into account and be guided by the following factors, if *751applicable . . . .” (CALJIC No. 8.88.1.) The jury was then given the list of 10 statutory factors. By telling the jurors that they were free to disregard factors which they found not to be “applicable’’—and by failing to tell them that they were free to add any mitigating factors which were proffered by appellant—the instruction created a compelling inference that the list was an exclusive one. The reasonable juror, upon hearing this instruction, would conclude that the list was his or her exclusive “guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.” (Gregg v. Georgia (1976) 428 U.S. 153, 192 [49 L.Ed.2d 859, 885, 96 S.Ct. 2909].)
This inference could only have been strengthened by the concluding instruction, CALJIC No. 8.89: “After having considered all of the evidence in this case and having taken into account all the applicable factors upon which you have been instructed, you shall determine whether the penalty to be imposed on defendant shall be death . . . .” Again, the jury was specifically told to apply the evidence to those factors on which it had been instructed, not to any others.
Under both the 1977 and 1978 death penalty laws, the jury hears the mitigating evidence and is instructed to “consider” all of it. Then, the instructions under both laws tell the jury to “take into account” and “be guided by” those applicable factors “upon which you have been instructed.” (Current CALJIC No. 8.84.2; former CALJIC No. 8.89.) Thus, under both sets of instructions, the reasonable juror would likely conclude that the evidence must fit into one of the legal pigeon-holes in order to be weighed into the penalty decision. Both instructions, No. 8.84.1 and No. 8.84.2, repeatedly convey the idea to the jurors that they are to weigh only “the” mitigating factors “upon which [they] have been instructed.”
The very most that can be said in favor of the 1977 instructions is that they are ambiguous, and that we cannot tell whether a reasonable juror would have understood them to restrict his or her use of mitigating evidence. This, of course, is not enough to allow this court to affirm a death sentence. “ ‘Woodson [v. North Carolina (1976) 428 U.S. 280 (49 L.Ed.2d 944, 96 S.Ct. 2978)] and Lockett require us to remove any legitimate basis for finding ambiguity concerning the factors actually considered by [the sentencing body in imposing a judgment of death].”’ (People v. Easley, supra, 34 Cal.3d at p. 879, quoting Eddings v. Oklahoma, supra, 455 U.S. at p. 119 [71 L.Ed.2d at p. 14] (conc. opn. of O'Connor, J.).)
B.
Several other state courts have reviewed jury instructions on mitigating factors to determine whether they comply with the Eight Amendment re*752quirement that the jury be authorized to give unrestricted consideration to any evidence which the defendant proffers as a basis for a sentence less than death. A look at some of these decisions illustrates why these instructions are inadequate.
The Pennsylvania Supreme Court, for example, invalidated its sentencing statute because it limited the mitigating factors which the sentencing authority could consider. (Com. v. Moody (1977) 476 Pa. 223 [382 A.2d 442, 447-450], cert. den. (1978) 438 U.S. 914 [57 L.Ed.2d 1160, 98 S.Ct. 3143],)15 Pennsylvania law allowed the sentencer to consider, inter alia, “[t]he age, lack of maturity, or youth of the defendant at the time of the killing.''’ (18 Pa. Cons. Stat. Ann. § 1311(d), italics added; see Com. v. Moody, supra, at p. 447.) The Pennsylvania court, however, observed that this statute did not, by its own terms, allow the jury to consider the defendant’s character and record other than at the time of the killing. (Id., at p. 449-450.) This, the court held, violated the Eighth Amendment—notwithstanding the fact that the defendant was allowed under the same law “to present a broad range of mitigating evidence bearing on his character and record.” (Ibid.) Like California’s factor (j), the Pennsylvania mitigating factor allowed the jury to use this evidence only to establish extenuating circumstances at the time of the offense. Because the jury could not give the evidence independent mitigating weight if it did not bear on the offense itself, the factor was unconstitutionally narrow. (Ibid.)16
North Carolina has addressed Lockett's concerns by requiring that the judge instruct the jury on any nonstatutory mitigating circumstance “proffered by and specifically requested by a defendant which is supported by the evidence and from which the jury might reasonably find mitigating value.” (State v. Stokes (1983) 308 N.C. 634 [304 S.E.2d 184, 195-196, 198].) Thus California’s factor (j) problem could not arise; if a North Carolina defendant presents mitigating evidence of his character or record which is not covered by one of the statutory factors, he is nonetheless entitled to an instruction which draws the jury’s attention to the evidence, and *753instructs the jury that it is free to give the evidence independent mitigating weight.17
Other state courts have found the penalty phase instructions sufficient if the jury is explicitly informed that it may consider any mitigating circumstances suggested by the evidence. (See People v. Free (1983) 94 Ill.2d 378 [69 Ill. Dec. 1, 447 N.E.2d 218, 238], cert. den. (1983) 464 U.S. 865 [78 L.Ed.2d 175, 104 S.Ct. 200]; State v. Linder (1981) 276 S.C. 304 [278 S.E.2d 335, 339]; State v. Coleman (1979) 185 Mont. 299 [605 P.2d 1000, 1017], cert. den., 446 U.S. 970 [64 L.Ed.2d 831, 100 S.Ct. 2952], rehg. den. 448 U.S. 914 [65 L.Ed.2d 1177, 101 S.Ct. 34]; cf. Neal v. State (Miss. 1984) 451 So.2d 743, 761, fn. 11, cert. den., — U.S. —[83 L.Ed.2d 716, 105 S.Ct. 607].18)
When the list of mitigating factors is limited, and fails to encompass all the mitigating evidence proffered by a defendant, courts have looked to whether the instructions as a whole convey the message that the jury is not bound by these factors in weighing.the evidence. Where the reasonable juror might understand that a list of enumerated mitigating factors is exclusive, a death judgment must be reversed. Thus, in Washington v. Watkins (5th Cir. 1981) 655 F.2d 1346, certiorari denied (1982) 456 U.S. 949 [72 L.Ed.2d 474, 102 S.Ct. 2021], the Fifth Circuit reversed a death sentence in a Mississippi case. The jury there had been instructed: “Now consider the follow*754ing elements of mitigation in determining whether the death penalty should not be imposed: One, that the defendant has no significant history of prior criminal activity and two, the defendant’s age at the time of the capital murder.”19 (655 F.2d at p. 1367, italics in original.) The Fifth Circuit noted that the jurors had never been expressly told that this list was an exclusive one. But they had been told that the list of aggravating factors was exclusive, and they had been told to balance the factors “[i]f you find from the testimony that one or more of the preceding elements of mitigation exist[s\ . . . .” (Id., at p. 1370, italics in original.)
The court concluded that “a reasonable juror might well have been led to believe from the trial court’s charge that ... it was his sworn duty to consider only the two mitigating factors specifically enumerated in the charge.” (Id., at pp. 1370-1371, italics in original.) The possibility that a juror might understand the instruction in this way, the court held, rendered the death sentence invalid under Lockett. It was not sufficient to allow the defendant to present and argue mitigating evidence, if the jury believed that it could use this evidence only to determine whether or not the specified factors existed. (Id., at pp. 1373-1375.)
As the court held: “[T]he State argues that Washington’s counsel introduced some evidence of nonstatutory mitigating factors, and adverted to those factors in his closing argument. Both the district court’s analysis and the State’s argument on appeal, however, completely miss the point of the Supreme Court’s holding in Lockett. Sandra Lockett also introduced evidence on nonstatutory mitigating factors, and also argued their relevance to the sentencer. The fatal flaw in Lockett was not the exclusion of evidence relating to nonstatutory mitigating factors, but the limitation on the sentencer’s consideration of that evidence except as it related to the statutory mitigating factors.” (Id., at pp. 1374-1375.)
At least one other court has required the same unambiguous showing that the sentencing authority understood that it was free to give independent weight to all of the mitigating evidence proffered by the defendant, even where the sentencing authority was a judge rather than a jury. The Arizona Supreme Court set aside a death judgment in a case where the sentencing judge had considered all the defendant’s psychiatric evidence and had determined that none of the statutory mitigating factors had been established. (State v. McMurtrey (1983) 136 Ariz. 93 [664 P.2d 637, 646], cert. den. (1983) 464 U.S. 858 [78 L.Ed.2d 161, 104 S.Ct. 180].) Reversal was required because it was not clear that the judge understood that he was re*755quired, after finding no statutory mitigating factors, to “consider the offered evidence further to determine whether it in some other way suggests that the defendant should be treated with leniency.” (664 P.2d at p. 646.)
In the present case, this court certainly cannot affirmatively say that the sentencing jury considered all the mitigating evidence, whether or not it fit one of the statutory factors. The instructions given to the jury compel just the opposite inference—that the jurors understood that they were restricted to the statutory list. Thus, as in Washington v. Watkins, supra, 655 F.2d 134, and in State v. McMurtrey, supra, 664 P.2d 637, this “ambiguity concerning the factors actually considered by the trial court” (Eddings v. Oklahoma, supra, 455 U.S. 104, 119 [71 L.Ed.2d 1, 14] (conc. opn. of O'Connor, J.)) would also compel a reversal of the death judgment. This court should hold that an expanded factor (j) instruction is constitutionally required.
The Supreme Court has voiced similar concerns: “Rules of practice and procedure are devised to promote the ends of justice, not to defeat them. A rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with this policy. Orderly rules of procedure do not require sacrifice of the rules of fundamental justice.” (Hormel v. Helvering (1941) 312 U.S. 552, 557 [85 L.Ed. 1037, 1041, 61 S.Ct. 719].)
Evidence Code section 353 states in relevant part: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [t] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . .”
The “overbreadth” challenge raised in this appeal consists of two distinct but related contentions: (1) that the language of the warrant failed to describe with sufficient particularity which “documentary evidence” relating to Amy S.’s death could be seized, and (2) that the facts set forth in the affidavit in support of the warrant failed to furnish probable cause to search for personal diaries.
The objection requirement applies where the law is clear and well settled. In contrast, where a change in the law is sought on appeal, this court has deemed an objection unnecessary, holding that “a substantial change in the [law will] excuse an objection anticipating that decision.” (People v. De Santiago (1969) 71 Cal.2d 18, 23 [76 Cal.Rptr. 809, 453 P.2d 353]; see People v. Cannady (1972) 8 Cal.3d 379, 387 [105 Cal.Rptr. 129, 503 P.2d 585].) To require an objection in such circumstances “would place an unreasonable burden on defendants to anticipate unforeseen changes in the law and encourage fruitless objections in other situations where defendants might hope that an established rule of evidence would be changed on appeal.” (People v. Kitchens (1956) 46 Cal.2d 260, 263 [294 P.2d 17]; see also People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5 [161 Cal.Rptr. 762, 605 P.2d 401]; People v. Williams (1976) 16 Cal.3d 663, 667, fn. 4 [128 Cal.Rptr. 888, 547 P.2d 1000]; see also In re Woods (1966) 64 Cal.2d 3, 7-8 [48 Cal.Rptr. 689, 409 P.2d 913].)
Moreover, no objection is required where the application of settled law to a new fact situation is unclear (People v. Haston (1968) 69 Cal.2d 233, 256, fn. 28 [70 Cal.Rptr. 419, 444 P.2d 91]), or where “the apparently prevalent contemporaneous interpretation” of the law is contrary to the contention sought to be reviewed on appeal. (In re Gladys R. (1970) 1 Cal.3d 855, 861 [83 Cal.Rptr. 671, 464 P.2d 127].)
For convenience, throughout this opinion the phrase “Fourth Amendment” will refer to both the Fourth Amendment to the United States Constitution and article I, section 13 of the California Constitution. (See, e.g., People v. Cook (1978) 22 Cal.3d 67, 81, fn. 4 [148 Cal.Rptr. 605, 583 P.2d 130]; People v. Triggs (1973) 8 Cal.3d 884, 891-892, fn. 5 [104 Cal.Rptr. 408, 506 P.2d 232].)
All statutory references are hereinafter to the Penal Code unless otherwise indicated.
This court’s decisions requiring particularized search and seizure objections are consistent with this premise. For example, in In re Joe R. (1980) 27 Cal.3d 496 [165 Cal.Rptr. 837, 612 P.2d 927], this court considered appellant’s lack-of-consent objections to a warrantless entry—preserved by a timely trial court objection—but refused to consider for the first time on appeal whether the officers’ warrantless arrest was excused by exigent circumstances. As the court stated, “we do not know what additional showing of exigency might have been made if illegality of the entry had been asserted in the trial court. . . .” (Id., at p. 510.)
Similarly, in People v. Rogers, supra, 21 Cal.3d at pages 547-548, the court refused to *741consider, in the absence of a trial court objection, a “Harvey/Madden” (People v. Harvey (1958) 156 Cal.App.2d 516 [319 P.2d 689]; People v. Madden (1970) 2 Cal.3d 1017 [88 Cal.Rptr. 171, 471 P.2d 971]) contention that an officer who furnishes another officer with information which the latter uses to make an arrest must have had probable cause for the arrest. As the court stated, to excuse an objection in these circumstances “would deprive the People of the opportunity to cure the defect at trial . ...” (21 Cal.3d at p. 548.)
As explained post, these cases—and the premise they stand for—are inapposite because no such opportunity was lost.
See People v. Kurland (1980) 28 Cal.3d 376 [168 Cal.Rptr. 667, 618 P.2d 213], People v. Cook, supra, 22 Cal.3d 67, Theodor v. Superior Court (1972) 8 Cal.3d 77 [104 Cal.Rptr. 226, 501 P.2d 234],
One of the notebooks had on its cover the date “1975.” The other two were identified on their covers as address books.
Beyond the cited reasons for according some special protection to diaries, there are specific factors in the present case which may support that result.
The diaries were written while appellant was involuntarily committed to a state hospital for treatment as a mentally disordered sex offender. The commitment was for “an indeterminate period” of time. (Former Welf. & Inst. Code, § 6316.) The length of actual commitment depended in large part on how well he responded to the treatment.
According to the testimony below, that treatment largely consisted of “conversation, *744group therapy” augmented by one-on-one sessions with a therapist. While apparently not explicitly required to keep a diary, appellant did so in order to “aid [him] in [his] problem, in [his] treatment.” He used the diaries “in conjunction with” the therapy program and would not have written them “were it not for the therapy that [he was] receiving. ”
While appellant was not specifically required by the state to write the diary entries, the involuntary and indeterminate nature of his commitment to the hospital contains elements of compulsion which would be relevant on the issue of whether the privilege against self-incrimination prohibits the state’s later attempt to use those diaries against him. However, I need not reach that issue in this case, since the diaries were inadmissible on other grounds.
Penal Code section 190.3 is the relevant statute under both the 1977 death penalty legislation (which applies to appellant’s crimes) and the current law enacted by initiative in 1978. All of the 10 factors enumerated in the 1977 version have been carried over into the 1978 law. Under the 1977 law, the jury instructions corresponding to Penal Code section 190.3 are former CALJIC Nos. 8.88.1 and 8.89. The current instructions under the 1978 law are CALJIC Nos. 8.84.1 and 8.84.2 (4th ed. 1979). Hereinafter all references to current CALJIC Nos. 8.84.1 and 8.84.2 are to this edition.
The 1978 law also contains one factor that was not listed in the 1977 law, but this difference is not relevant to the issues raised by the present appeal. (See Pen. Code, § 190.3, subd. (c) [adding the factor of “(t)he presence or absence of any prior felony conviction”].)
Hereinafter all references to former CALJIC Nos. 8.88.1 and to 8.89 are to this edition.
Easley dealt with instructions based on the 1978 death penalty law, rather than the 1977 statute at issue here. However, the language of factor (j) of Penal Code section 190.3 of the 1977 law was carried over verbatim as factor (k) of section 190.3 under the 1978 law.
The CALJIC Committee has since responded, by redrafting the instruction to incorporate the Lockett language. CALJIC No. 8.84.1, subdivision (k) (4th ed. 1984 rev.) now directs the jury to consider “[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime [and any other aspect of the defendant’s character or record that the defendant offers as a basis for a sentence less than death].”
Moody was decided a year before Lockett, and anticipated the holding of that case. The Pennsylvania court based its decision on Woodson v. North Carolina, supra, 428 U.S. 280, 304-305 [49 L.Ed.2d 944, 961]: “ *. . . in capital cases the fundamental respect for humanity underlying the Eight Amendment. . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.’ ” (Com. v. Moody, supra, 382 A.2d at p. 446.)
Following Moody, the Pennsylvania Legislature amended the statute, so that a jury is now instructed to consider “ ‘[a]ny other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.’ 42 Pa. C.S.A. § 9711(e)(8).” (Com. v. Zettlemoyer (1982) 500 Pa. 16 [454 A.2d 937, 958-959].)
North Carolina has even required the trial judge to explain fully the meaning of the statutory mitigating circumstances, where there is a danger that without such an explanation the jury will disregard mitigating evidence. In State v. Johnson (1979) 298 N.C. 47 [257 S.E.2d 597, 613-614], the North Carolina Supreme Court held that where a jury had previously been instructed on the M’Naghten test of criminal insanity (and had found the defendant sane), the trial judge was required to explain the difference between this test and the mitigating circumstance that “the capacity of the defendant to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements if the law was impaired. ...” Without such explanation, the court held, the jury might have failed to give independent mitigating weight to the defendant’s penalty phase psychiatric evidence.
The North Carolina procedure may present other problems, not at issue here. By citing State v. Stokes, supra, I do not suggest, for example, that it would be constitutionally permissible for a trial judge to refuse an instruction on mitigating circumstances requested by the defense, on the grounds that the judge does not believe there is substantial evidence to support it. Stokes is cited here simply to illustrate the difference between a legislatively drawn, close-ended list of mitigating factors, to be applied without variation in all cases, and a flexible list which allows the jury to give independent mitigating weight to the defense evidence actually presented in a given case. With the latter kind of list, a trial judge has the ability to comply with Lockett. With the former type of list, he does not.
In Neal, the Mississippi Supreme Court noted its previous approval of an “any other mitigating circumstances” instruction in Gray v. State (Miss. 1979) 375 So.2d 994, 1003-1004, certiorari denied (1980) 446 U.S. 988 [64 L.Ed.2d 847, 100 S.Ct. 2975]. Although Neal held that omission of such an instruction was not error in that case in view of the absence of an evidentiary basis for it, the court cautioned that “[a]s a matter of practice, such language should be employed in every case to avoid this troublesome point arising in the future.” (451 So.2d at p. 761, fn. 11.)
These two mitigating factors are substantially equivalent to California’s former Penal Code section 190.3, subdivisions (b) and (h).