Concurring and dissenting.I concur in the affirmance of the findings of guilt and special circumstances and in the denials of the petitions for writ of habeas corpus. I dissent from the affirmance of the death penalty.
The majority properly conclude that the trial court erred in giving an instruction in accordance with the so-called Briggs Instruction (former CALJIC No. 8.84.2 (1979)) on the Governor’s power to commute a sentence of life without possibility of parole. (People v. Ramos (1984) 37 Cal.3d 136, 153 [207 Cal.Rptr. 800, 689 P.2d 430].) As the majority recognize, the language of the instruction is misleading and invites speculation on irrelevant matters. However, the majority also conclude that subsequent instructions telling the jury to disregard the Governor’s power to commute eliminated any prejudice. I do not agree.
*381In my view the error was prejudicial. I cannot agree that the later instructions unrung the bell. Far from unringing the bell, the subsequent instructions could only have the effect of reminding the jury again and again of the Governor’s commutation power. Furthermore the prosecutor exploited the error in closing argument. To conclude that, when the cacophony was complete and overwhelming, there was no prejudice is to turn a deaf ear to fairness and justice.
The Briggs Instruction has been uniformly held to be prejudicial error in a penalty trial because it is so misleading as to constitute a denial of due process, improperly tilting the jury in favor of the death penalty. (People v. Anderson (1987) 43 Cal.3d 1104, 1150-1151 [240 Cal.Rptr. 585, 742 P.2d 1306]; People v. Myers (1987) 43 Cal.3d 250, 272-273 [233 Cal.Rptr. 264, 729 P.2d 698]; People v. Monteil (1985) 39 Cal.3d 910, 928 [218 Cal.Rptr. 572, 705 P.2d 1248]; People v. Haskett (1982) 30 Cal.3d 841, 861-863 [180 Cal.Rptr. 640, 640 P.2d 776].) In Anderson, it is stated that the Briggs Instruction “necessarily subjects the defendant to prejudice.” (43 Cal.3d at p. 1151.) As pointed out in Myers-. “The Attorney General. . . has cited no instance, and we are aware of none, in which this type of instructional error has been found nonprejudicial in a death penalty case, and in view of the very serious potential for prejudice emphasized in Ramos, we strongly doubt whether we could ever confidently conclude that there was no reasonable possibility that this instruction improperly tainted the jury’s decision-making process.” (43 Cal.3d at p.272.)
In Myers, the defendant introduced evidence of the past practices of California governors lo show that it was extremely unlikely that he ever would be released if sentenced to life without possibility of parole. The court concluded that far from neutralizing the improper instruction “in reality . the additional focus on commutation in this case had the inevitable and unfortunate effect of highlighting the ostensible importance of the commutation question.” (43 Cal.3d at pp. 272-273.)
In this case the trial court’s instruction to the jury that it was their duty to determine whether death or confinement in state prison without possibility of parole should be imposed on defendant was followed immediately by its instruction on the Governor’s commutation power. The court thereby emphasized the importance of the instructions on the Governor’s powers, suggesting that they are the first and most important step in the process of determining the penalty.1
*382The importance of the Governor’s powers was further emphasized because of their length; the instructions went beyond those contemplated by Penal Code section 190.3, the Briggs Instruction.
The first instruction was not limited to the Governor’s power to commute a sentence of life imprisonment without possibility of parole. Rather it spoke of the Governor’s powers generally. Subsequent instructions told the jury of the Governor’s power to commute a sentence of life imprisonment without possibility of parole to a sentence of life imprisonment with parole, a limitation on the power, and the effect of a commutation. The instructions did not stop with the instruction contemplated by Penal Code section 190.3 condemned in Ramos but repeatedly emphasized the Governor’s power. The instructions thus were not the brief but invalid reference to the Governor’s power contemplated by Penal Code section 190.3 but included in addition an instruction applicable to a death sentence and instructions detailing matters which could only serve to toll the bell repeatedly. While the majority concede that error occurred (maj. opn., p. 374), they do not recognize the full scope of the error.
The majority further take the position that subsequent instructions told the jury to disregard the prior instructions, that we must presume the jury followed the later instructions and that they eliminated the prejudice due to the erroneous instructions on the Governor’s powers. (Maj. opn., ante, at p. 375.)
I doubt whether any instruction could eliminate the prejudice flowing from the improper and detailed emphasis placed on the Governor’s commutation power. The power was given too much importance and emphasis to allow further instructions to eliminate the prejudice. Furthermore the subsequent instructions given in the instant case were in themselves erroneous, confusing and contradictory and, when all was said and done, probably left the jury with the view that it should consider the Governor’s powers so long as it assumed that the powers would be properly exercised. Such instruc*383tions do not eliminate the prejudice flowing from the improper mention of the Governor’s powers; they exacerbate the prejudice.2
Like the evidence of past Governor practices in People v. Myers, supra, 43 Cal.3d 250, 272-273, the instructions relied upon by the majority in the instant case, far from neutralizing the improper instructions on the commutation power, served to emphasize the commutation question. The jury was initially told not to consider a possible commutation or to speculate whether there would be a commutation, and it was not its function to determine whether defendant would be suitable for parole at a later date. But telling the jury not to consider a possible commutation, to speculate, or to decide whether this man will be suitable for parole at some later date simply emphasizes the commutation question in the juror’s mind.
Moreover, the jury was not told to ignore the Governor’s power but was told that the Governor, the Supreme Court and the parole oificials would properly perform their duties. In Ramos, after concluding that fundamental fairness precluded telling the jury of the commutation power, the court addressed the question whether the jury should be told not to consider the Governor’s commutation power. While we recognized that in some circumstances not relevant hére the jury might be told to disregard the power, we concluded that the jury should not be so instructed because the instruction “is simply more likely to bring the matter to the jury’s attention and, as a practical matter, be difficult to follow.” (37 Cal.3d at p. 159, fn. 12.) Accordingly, even if no commutation instruction had been given, it would have been error in the instant case to give the supplementary instructions because they called the jury’s attention to the commutation issue. To conclude, as the majority do, that an instruction which is erroneous because it may call the jury’s attention to a prejudicial matter somehow eliminates the prejudice in other, instructions which call the jury’s attention to the very same prejudicial matter involves a mental exercise incomprehensible to me.
*384But even if we accept the majority’s thesis that somehow instructions which are error because of their prejudicial effect can somehow cure other instructions which are error because they have the same prejudicial effect, we still must look at the content of the subsequent instructions of the trial court.
Far from being told that it was improper to consider the possibilities of commutation and subsequent parole, the jury was told that it should consider those possibilities but only in the perspective that, when and if defendant was paroled, it would be done lawfully. The instructions to disregard and not to consider were literally contradicted and the jury was left with not only erroneous instructions but also contradictory and confusing instructions as to the importance of the Governor’s commutation power.
What did this jury do when faced with confusing and conflicting instructions concerning the Governor’s commutation power? All we can do is guess. I suspect that the jury may have concluded that it should not try to determine whether this defendant would have his sentence commuted and obtain a parole but that it must conclude that the commutation power was a factor militating against life imprisonment without possibility of parole and in favor of the death penalty and that it must assume that if defendant was paroled it would be done lawfully. To execute a defendant based on the Governor’s power to commute sentences whether done lawfully or unlawfully violates the fundamental fairness guaranteed by the due process clause of our state Constitution.
The prosecutor exploited the fundamental unfairness of the instructions in his closing argument. The prosecutor suggested that if defendant received a sentence of life imprisonment he “wouldn’t spend all his time in prison thinking about his horrible crimes. He’d be conniving and devising ways to manipulate the system and get out. . . . Look at his letters [to Officer Birse, Ruth Story and the San Diego District Attorney’s office] now, how he operates.” (Italics added.) The comment is a direct comment on the possibility that defendant would be paroled. The only way that he could “manipulate the system and get out” by appealing to governmental authorities was through exercise of the commutation power. The majority suggest that the prosecutor was only trying to state that defendant was lacking in feeling and self-centered (maj. opn., p. 374), but the comment speaks for itself.
In the instant case the instructions discussing the Governor’s powers were as long as those setting forth and defining the aggravating and mitigat*385ing circumstances which should control the application of the death penalty. I am satisfied that the instructions on the Governor’s powers were more harmful than any we have seen in prior cases. The supplemental instructions relied upon by the majority did not eliminate the prejudice but could only have emphasized the commutation power and confused the jury into believing that the power was an important matter, if not the most important matter, to be considered by the jury in determining the penalty. The prosecutor referred to possible parole in his closing argument, and the prejudice from the errors is overwhelming.
The petitions of all parties for a rehearing were denied July 28, 1988, and the opinion was modified to read as printed above. Broussard, J., was of the opinion that the petitions should be granted.
“It is now your duty to determine which of the two penalties, death or confinement in the state prison for life without possibility of parole, shall be imposed on Mr. Hamilton.
*382“You are instructed that under the state Constitution, a governor is empowered to grant a reprieve, pardon or commutation after sentence following conviction of a crime. Under this power a governor may in the future commute or modify a sentence of life imprisonment without possibility of parole to a lesser sentence that would include the possibility of parole.
“This is subject to the requirement that, in the case of any person twice convicted of a felony, a commutation or modification may not be granted absent the written recommendation of at least four justices of the California Supreme Court. Further, a life sentence requires a minimum incarceration of 25 years less one third off for good time credits before parole may be considered by the proper authorities.”
“You are now instructed, however, that the matter of a possible commutation or modification of sentence is not to be considered by you in determining the punishment for Mr. Hamilton. You must not speculate as to whether such commutation or modification would ever occur.
“It is not your function to decide now whether this man will be suitable for parole at some future date. So far as you are concerned, you are to decide only whether this man shall suffer the death penalty or whether he shall be permitted to remain alive.
“If upon consideration of the evidence you believe that life imprisonment without possibility of parole is the proper sentence, you must assume that the Governor, the Supreme Court, and those officials charged with the operation of our parole system will perform their duty in a correct and responsible manner, and that Mr. Hamilton will not be paroled unless he can be safely released into society.
“It would be a violation of your duty as jurors if you were to fix the penalty at death because of a doubt that the Governor and other oificials will properly carry out their responsibilities.” (Italics added.)