I concur in the judgment. After review, I agree with the majority that the judgment in No. S004778 (Crim. No. 26412) should be affirmed and that the appeal in No. S012228 should be dismissed.
*1259I write separately to address at some length defendant’s claim that the trial court erred by refusing to give the following instruction on his request: “It is appropriate for you to consider in mitigation any ‘lingering doubts’ you may have concerning defendant’s guilt. Lingering doubt is defined as that state of mind between beyond a reasonable doubt and beyond all possible doubt.”
The seminal case on “lingering doubt” is People v. Terry (1964) 61 Cal.2d 137 [37 Cal.Rptr. 605, 390 P.2d 381],
In that case, we held that the California death penalty law did not permit a capital defendant to “attack ... the legality of the . . . adjudication” of guilt. (People v. Terry, supra, 61 Cal.2d at p. 145.) Our conclusion “rest[ed] upon the self-evident prohibition of any attempt to relitigate the . . . conviction.” (Ibid.)
But we also held that the statutory scheme did indeed allow capital jurors to “conclude that the prosecution has discharged its burden of proving defendant’s guilt beyond a reasonable doubt but. . . still demand a greater degree of certainty of guilt for the imposition of the death penalty.” (People v. Terry, supra, 61 Cal.2d at pp. 145-146.) We explained: “The jury’s task, like the historian’s, must be to discover and evaluate events that have faded into the past, and no human can perform that function with certainty. Judges and juries must time and again reach decisions that are not free from doubt; only the most fatuous would claim the adjudication of guilt to be infallible. The lingering doubts of jurors in the guilt phase may well cast their shadows into the penalty phase and in some measure affect the nature of the punishment. Even were it desirable to insulate the psychological reactions of the jurors as to each trial, no legal dictum could compel such division, and, in any event, no statute designs it.” (Id. at p. 146.)1
In the almost 30 years that have passed since we decided Terry, we have firmly adhered to its teaching. (See, e.g., People v. Coleman (1969) 71 *1260Cal.2d 1159, 1168 [80 Cal.Rptr. 920, 459 P.2d 248]; People v. Haskett (1982) 30 Cal.3d 841, 866 [180 Cal.Rptr. 640, 640 P.2d 776]; People v. Thompson (1988) 45 Cal.3d 86, 134-135 [246 Cal.Rptr. 245, 753 P.2d 37]; People v. Cox (1991) 53 Cal.3d 618, 675-679 [280 Cal.Rptr. 692, 809 P.2d 351]; People v. DeSantis (1992) 2 Cal.4th 1198, 1238-1240 [9 Cal.Rptr.2d 628, 831 P.2d 1210].)
It might perhaps be argued that the California death penalty law, as it now stands, does not allow capital jurors to entertain, and act on, “lingering doubt.”
Such an argument would prove unpersuasive. In pertinent part, the statutory scheme today is substantially similar to its predecessor at the time of Terry. Then, it provided: “Evidence may be presented at the . . . proceedings on the issue of penalty, of the circumstances surrounding the crime, of the defendant’s background and history, and of any facts in aggravation or mitigation of the penalty.” (Pen. Code, former § 190.1; Stats. 1959, ch. 738, § 1, pp. 2727-2728.) Today, it provides: “In the proceedings on the question of penalty, evidence may be presented ... as to any matter relevant to aggravation, mitigation, and sentence including, but not limited to, the nature and circumstances of the present offense, . . . and the defendant’s character, background, history, mental condition and physical condition.” (Pen. Code, § 190.3.) Terry's reasoning is as applicable to the latter as to the former.
To be sure, in the years following Terry, the statutory scheme has experienced many changes. Most prominent for purposes here is the addition of a list of factors that the jury is required to “take into account,” “if relevant,” “[i]n determining penalty.” (Pen. Code, § 190.3.) That list may indeed serve to structure the process whereby discretion is exercised. But it simply does not even purport to limit that discretion itself.2 In Terry's time, it appears, the choice of punishment turned on the defendant’s personal moral culpability. That is also true today. (People v. Gallego (1990) 52 Cal.3d 115, 207 [276 Cal.Rptr. 679, 802 P.2d 169] (cone. opn. of Mosk, J.).)
As a general matter, whether or not to expressly instruct on “lingering doubt” must be entrusted to the trial court’s discretion. An instruction of this *1261kind might, at one and the same time, offer a benefit and threaten a cost. That is to say, it might prevent capital jurors from laboring under any misconception in this regard. But it might also invite such jurors to decline the difficult task of assessing the defendant’s personal moral culpability in favor of a kind of arbitrary and capricious “nondetermination” of penalty based on merest speculation. Whether the possible benefit is worth the potential cost depends on the peculiar facts of the individual case. It is the trial court that must make the determination in the first instance.
Under certain circumstances, however, the trial court is required to expressly instruct on “lingering doubt.” As shown, the California death penalty law allows capital jurors, in determining penalty, to entertain, and act on, such doubt. Tlie court is obligated to give an express instruction on the matter when there is a reasonable likelihood that, in the absence of such an advisement, the jury will labor under a misconception in this regard. A reasonable likelihood of this sort would compel a finding of error. (See generally People v. Clair (1992) 2 Cal.4th 629, 662-663 [7 Cal.Rptr.2d 564, 828 P.2d 705].) Error, of course, must be avoided.3
I now turn to the case at bar. As stated, defendant claims that the trial court erred by refusing his express instruction on “lingering doubt.” The point proves to lack merit.
To begin with, the trial court was not required to expressly instruct on “lingering doubt.”
“Lingering doubt,” in defendant’s own words, was one of his “most central themes” at the penalty phase. The People made no suggestion that such doubt was in any way immaterial.
Further, the trial court’s charge did not preclude “lingering doubt.” Quite the contrary. Specifically, it directed the jurors to consider certain factors in *1262determining penalty. One was “[t]he circumstances of the crime of which the defendant was convicted in the present proceeding . . . .” This was broad enough to include “lingering doubt.” Another factor was “[a]ny . . . circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime, and any sympathetic or other aspect of the defendant’s character or record as a basis for a sentence less than death, whether or not related to the offense for which he is on trial.” This too was broad enough to include “lingering doubt.’’4
In view of the foregoing, there was not a reasonable likelihood that, without an express instruction on “lingering doubt,” the jury would labor under any misconception in this regard. (Compare People v. Raley (1992) 2 Cal.4th 870, 918-919 [8 Cal.Rptr.2d 678, 830 P.2d 712] [arriving at a similar conclusion on a similar record for similar reasons]; People v. Price (1991) 1 Cal.4th 324, 488-489 [3 Cal.Rptr.2d 106, 821 P.2d 610] [same]; People v. Sully (1991) 53 Cal.3d 1195, 1246 [283 Cal.Rptr. 144, 812 P.2d 163] [same].)
Because the trial court was not required to expressly instruct on “lingering doubt,” it had discretion to do so or not. Its decision not to instruct cannot be deemed an abuse of discretion. Its implicit assessment that the possible benefit was not worth the potential cost was not unreasonable.
Accordingly, having found no basis for doing otherwise, I join the majority in affirming the judgment in No. S004778 (Crim. No. 26412) and in dismissing the appeal in No. S012228.
Kennard, J., concurred.
Appellant’s petition for a rehearing was denied January 20, 1993.
“Lingering doubt” cannot be dismissed as simply unreasonable and, hence, altogether empty. “There may be no reasonable doubt—doubt based upon reason—and yet some genuine doubt exists.” (Smith v. Balkcom (5th Cir. 1981) 660 F.2d 573, 580, mod. on another point (1982) 671 F.2d 858, italics in original; accord, Smith v. Wainwright (11th Cir. 1984) 741 F.2d 1248, 1255.) Such a doubt must be allowed. As Professor Michael L. Radelet has observed: “The criterion for guilt, ‘beyond a reasonable doubt,’ is not the same as absolute certainty, and thus a small but nonzero proportion of all defendants convicted of homicide or sentenced to death will be innocent. Indeed, this contention is supported by historical research. Approximately 350 wrongful convictions for homicide, including approximately 100 involving the imposition of a death sentence upon a defendant who later was shown to be completely innocent, have been identified in the United States since 1900.” (Radelet, Rejecting the Jury: The Imposition of the Death Penalty in Florida (1985) 18 U.C. Davis L.Rev. 1409, 1427.)
No problem appears to arise in this regard under the United States Constitution. Certainly, “the [federal] constitutional prohibition on arbitrary and capricious capital sentencing determinations is not violated by a capital sentencing ‘scheme* ”—like California’s—“ ‘that permits the jury to exercise unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty by statute.’ ” (California v. Ramos (1983) 463 U.S. 992, 1009, fn. 22 [77 L.Ed.2d 1171, 1186, 103 S.Ct. 3446], quoting Zant v. Stephens (1983) 462 U.S. 862, 875 [77 L.Ed.2d 235, 248, 103 S.Ct. 2733].)
As is evident, the requirement to expressly instruct on “lingering doubt” arises from the California death penalty law. It does not arise from the cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution or from the analogous clause of article I, section 17 of the California Constitution. (People v. Cox, supra, 53 Cal.3d at pp. 676-677 [dealing with both U.S. Const., Amend. VIII, and Cal. Const., art. I, § 17]; accord, Franklin v. Lynaugh (1988) 487 U.S. 164, 172-174 [101 L.Ed.2d 155, 164-165, 108 S.Ct. 2320] (plur. opn. by White, J.); id. at pp. 187-188 [101 L.Ed.2d at p. 174](conc. opn. of O’Connor, J.) [dealing with only U.S. Const., Amend. VIII].) This is because neither the federal nor the state constitutional provision mandates that capital jurors, in determining penalty, be allowed to entertain, and act on, “lingering doubt.” (People v. Cox, supra, at pp. 676-677 [dealing with both U.S. Const., Amend. VIII, and Cal. Const., art. I, § 17]; accord, Franklin v. Lynaugh, supra, at pp. 172-174 (plur. opn. by White, J.); id. at pp. 187-188 (cone, opn. of O’Connor, J.) [dealing with only U.S. Const., Amend. VIII].)
To my mind, the pattern instruction set out in CALJIC No. 8.85 (5th ed. 1988 bound vol.)—which is substantially similar to the charge quoted above—is “inclusive” of “lingering doubt.”