I fully agree with the majority’s conclusion that the use of the 1978 death penalty law instructions in this case was error since defendant’s case is governed by the 1977 death penalty law. (See former Pen. Code, § 190.1 et seq.; Stats. 1977, ch. 316, §§ 7-13, pp. 1257-1262.) However, I disagree with the majority’s assessment {ante, at p. 1030) that there was no reasonable possibility that the error affected the penalty verdict. Moreover, I believe the majority’s equation of “Brown error” in a 1978 death penalty law case (People v. Brown (1985) 40 Cal.3d 512 [220 Cal.Rptr. 637, 709 P.2d 440]) with the error in the instant case is analytically incorrect. I therefore dissent.
As the majority explains, the 1978 death penalty law is not a mirror image of its 1977 predecessor. The 1977 law simply instructed the jury to “consider, take into account and be guided by” the statutory aggravating and mitigating factors when deciding on the proper penalty, and did not contain any further language to direct or constrain the jury’s choice between a sentence of death and a sentence of life imprisonment without the possibility of parole. By contrast, the 1978 law, in addition to informing the jury to “consider, take into account and be guided by” the statutory factors, goes on to instruct the jury to weigh the various factors and provides that if the aggravating circumstances “outweigh” the mitigating ones, the jury “shall” impose a sentence of death.
We recognized this difference in People v. Easley (1983) 34 Cal.3d 858 [196 Cal.Rptr. 309, 671 P.2d 813], In that case, as here, the trial judge erroneously used jury instructions based on the 1978 death penalty law in a case governed by the 1977 death penalty law.1 On appeal, the defendant in Easley made a two-pronged argument. First, he argued that reversal was required “because the 1978 provision reduced the latitude which the 1977 law afforded a jury to exercise discretion in favor of a sentence of life imprisonment without possibility of parole.” (Easley, supra, at p. 882.) Second, he urged that “the 1978 instruction is unconstitutional insofar as it requires a jury to return a judgment of death whenever aggravating circumstances ‘outweigh’ mitigating circumstances, even if the jury does not believe that the ‘net’ aggravation in a particular case is sufficient to make death the appropriate punishment.” (Ibid., italics in original.)
We declined to reach the constitutional question, however, finding it was clearly error to instruct the jury with the provisions of the wrong law. *1041Moreover, we found the error prejudicial, stating “we have little doubt that, on balance, the 1978 version is much less favorable to a defendant than the 1977 provision.” (Easley, supra, 34 Cal.3d at p. 884.) We explained that the 1978 law required the jury to impose the death penalty if the factors in aggravation outweighed those in mitigation. “If it had been properly instructed under the 1977 law, however, the jury would have understood that even if aggravation outweighed mitigation, it was not required to impose a death sentence but could exercise mercy and return a verdict of life without possibility of parole. Thus, the erroneous instruction deprived defendant of the opportunity to have the jury exercise the discretion that the 1977 statute provided when aggravation outweighs mitigation.” (Ibid., italics in original.)
However, post-Easley cases have clarified the proper interpretation of 1978 death penalty law. “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.” (People v. Brown, supra, 40 Cal.3d 512, 541, fn. omitted, italics added, revd. on another ground sub nom. California v. Brown (1987) 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837]]; see also People v. Boyde (1988) 46 Cal.3d 212, 257-259 [250 Cal.Rptr. 83, 758 P.2d 25], and cases cited [Arguelles, J., cone, and dis.].)
Although I agree with the majority that this portion of the 1978 law, as construed in Brown, supra, 40 Cal.3d 512, and its progeny, is functionally equivalent to the 1977 law, it does not follow that jury instructions which track the literal wording of the two laws are interchangeable. In determining whether the pre-Brown 1978-law instructions constitute an adequate substitute for the instructions that were legally applicable to defendant’s case, the critical question is not what we declare the instruction to mean “but rather what a reasonable juror could have understood the charge as meaning. [Citation.]” (Francis v. Franklin (1985) 471 U.S. 307, 315-316 [85 L.Ed.2d 344, 354, 105 S.Ct. 1965]; see also People v. Warren (1988) 45 Cal.3d 471, 487 [247 Cal.Rptr. 172, 754 P.2d 218].)
As we recognized in Brown, supra, 40 Cal.3d 512, the language of the 1978 statute, on which the 1978-law instruction is based, “leave[s] room for some confusion as to the jury’s role” and in Brown, we accordingly directed that additional, explanatory instructions, clarifying the scope of the jury’s discretion, be given in future cases. (Brown, supra, at p. 544, fn. 17.) The lesson of Brown is that while the 1978 law, as interpreted therein, is essentially the equivalent to the 1977 law, instructions modeled on the language *1042of the 1978 law may still work to the defendant’s disadvantage because the statute’s wording is potentially confusing.
The majority reasons that “[i]f the sentencer’s discretion under the 1978 law, properly construed, is essentially the same as under the 1977 law, it is no more inherently ‘confusing’ or ‘prejudicial’ to give 1978-law sentencing instructions in a 1977-law case than in a 1978-law case.” (Ante, at pp. 1028-1029, italics in original.) This assertion ignores express language in Brown itself which reaches a contrary conclusion.
In a significant footnote in Brown, supra, 40 Cal.3d 512, we explained that “[i]n Easley, this court ruled that it was prejudicial error to give the 1978, or ‘mandatory death penalty,’ version of CALJIC No. 8.84.2 in a case properly tried under the 1977 law, since a defendant ‘is . . . generally worse off under [the mandatory feature of] the 1978 law.' [Citation.] Our discussion assumed that the 1978 version of section 190.3 intended to require the death penalty in certain cases. No extensive analysis was provided, however, and the statutory interpretation was not necessary to our decision. Certainly the 1978 instruction given in Easley was prejudicial when compared to its 1977 counterpart, since the latter, unlike the former, contained no unexplained use of mandatory language .... Easley itself recognized that, even if statutory language was susceptible to a liberal saving construction, instructions given in the literal statutory language might nonetheless be deficient. . . . Nothing in Easley precludes us from holding that the 1978 statute permits the jury to reject death if persuaded by any evidence that it is an inappropriate penalty.” (Brown, supra, 40 Cal.3d at p. 544, fn. 16, original italics italicized and underscored, italics added for emphasis.)
As the above emphasized passage attests, Brown disapproved Easley's dictum characterizing the 1978 statute as a mandatory death penalty law but carefully reaffirmed the holding of Easley, to wit, that giving the 1978 instructions in a 1977 case was prejudicial. It was, of course, necessary in Brown to disavow Easley's suggestion that the 1978 law was a mandatory one since serious constitutional doubts would be raised by such an interpretation. (See Sumner v. Shuman (1987) 483 U.S. 66 [97 L.Ed.2d 56, 107 S.Ct. 2716] [striking down Nevada’s mandatory death penalty for life prisoners who kill in prison]; Zant v. Stephens (1983) 462 U.S. 862, 879 [77 L.Ed.2d 235, 251, 103 S.Ct. 2733] [emphasizing the need for an individualized determination of the appropriateness of the death penalty based on the character of the offender and the circumstances of the crime].) Thus, footnote 16 in Brown made clear that (1) Easley's characterization of the 1978 law as a mandatory one was incorrect, but (2) Easley should not be overruled since giving the 1978-law instructions in a 1977 case was itself error and, on the facts of that case, prejudicial. On this latter point Brown is clear and unequivocal: “Certainly the 1978 instruction given in Easley was *1043prejudicial when compared to its 1977 counterpart, since the latter, unlike the former, contained no unexplained use of mandatory language.” (40 Cal.3d at p. 544, fn. 16, italics in original.)2 By concluding otherwise, the majority gives no effect to our discussion in Brown that specifically preserved that portion of Easley.
Inasmuch as Brown itself instructs us that giving the 1978-law instruction in a 1977-law case is error, the majority’s decision to apply the standard “Brown-error type” analysis to this case is flawed. In Brown, we refrained from holding that giving the standard jury instruction drawn from the actual language of Penal Code section 190.3 was necessarily error. Instead, we noted the instruction left “some room for confusion” (Brown, supra, 40 Cal.3d at p. 544, fn. 17) and that prior death penalty verdicts rendered without the benefit of ameliorative jury instructions “must be examined on . . . [their] own merits to determine whether, in context, the sentencer may have been misled to defendant’s prejudice about the scope of its sentencing discretion under the 1978 law.” (Ibid., italics added.)
This, however, is not a 1978 case. There can be no dispute but that defendant was entitled to have his jury instructed with the law applicable at the time he committed his crimes. It was thus clearly error for the trial court to have used the instructions based on the 1978 law. Merely labelling the error a “technical” one, as does the majority (ante, at p. 1028), does not diminish the serious nature of the instructional mistake which occured.
Because there was clearly instructional error in this case, the question whether reversal is required is not the same as in a 1978-law case tried under pr e-Brown instructions. In a 1978 case involving pr e-Brown “potentially confusing” instructions, we are presented with an ambiguous instruction and look to the record as a whole to determine whether the jury was actually misled. If, after we examine the record, we conclude the jury adequately understood its function, we not only conclude there was no prejudice but that giving the unadorned instruction based on the 1978 statutory language was not error. Our examination of the record in such cases generally looks to see if the attorneys’ comments during closing argument exacerbated the latent ambiguity in the instructional language, misleading the jury “as to its discretion and its responsibility in reaching its sentencing verdict.” (People v. Milner (1988) 45 Cal.3d 227, 257 [246 Cal.Rptr. 713, 753 P.2d 669].)
*1044By contrast, in a 1977-law case where the 1978-law instructions were erroneously given, Easley, as interpreted in Brown, teaches us that such a miscue is error and that the error is presumptively prejudicial. In such a case, reversal can be avoided, if at all, only if the record affirmatively reveals that the jury must have understood that the erroneous instructions it was given were identical to the instructions it should have received. Thus, the record must reveal that the jurors were affirmatively made to understand that, despite the apparently mandatory language of the 1978-law instruction, they possessed a degree of discretion coterminous with the discretion granted by the 1977 law. (Cf. People v. Sedeno (1974) 10 Cal.3d 703, 721 [112 Cal.Rptr. 1, 518 P.2d 913] [instructional error was harmless where the factual question posed by the omitted instruction was necessarily resolved against the defendant under other, properly given instructions].)
The record here discloses nothing which affirmatively cured the court’s fundamental error in instructing the jury under the wrong law. First, unlike in some cases, the scope of the jury’s sentencing discretion was not sufficiently explained in supplemental, ameliorative instructions. (See, e.g., People v. Howard (1988) 44 Cal.3d 375, 435 [243 Cal.Rptr. 842, 749 P.2d 279] [1978-law case]; People v. Gates (1987) 43 Cal.3d 1168, 1204-1206 [240 Cal.Rptr. 666, 743 P.2d 301] [1978-law case].) In this 1977-law case, the trial court simply gave the standard 1978-law instructions with no embellishment at all.
Although the majority relies on the closing arguments of the prosecutor and defense counsel to conclude the error was harmless (ante, at pp. 1030-1031), such argument cannot render the erroneous instruction of the jury nonprejudicial. The jury was instructed that it was their duty to apply the law as stated by the trial judge and was also instructed that “[statements made by the attorneys during the trial are not evidence.” “Jurors are, of course, presumed to follow the instructions given by the court.” (People v. Hamilton (1988) 45 Cal.3d 351, 375 [247 Cal.Rptr. 31, 753 P.2d 1109].) Moreover, the error in this case consisted of misinforming the jury as to the scope of their sentencing discretion. Thus, even assuming for the sake of argument that the closing statements of the prosecutor and defense counsel enunciated a correct version of the jury’s discretion, we must assume that, faced with conflicting interpretations of the applicable statute, the jury chose to follow the law as stated by the trial court. Where the jury is given an incorrect instruction, merely giving a correct one as well does not cure the harm since it is impossible for us to know which of the instructions the jury actually followed. (See People v. Rhoden (1972) 6 Cal.3d 519, 526 [99 Cal.Rptr. 751, 492 P.2d 1143].) This reasoning applies a fortiori, when the *1045jury must decide between an instruction given by the court and the arguments of the prosecutor and/or defense counsel.3
Since this court’s decision in People v. Brown, supra, 40 Cal.3d 512, makes clear that reversal is required under the particular circumstances of this case, I would reverse the penalty judgment and remand for a new penalty trial.
Mosk, J., concurred.
Appellant’s petition for a rehearing was denied August 31, 1989. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.
It is difficult to understand how the trial judge in this case failed to instruct on the applicable law, especially after this court reversed defendant’s first penalty judgment. Moreover, some blame must certainly be shared by the prosecutor and defense counsel for failing to alert the trial judge to an error of this magnitude.
The majority attempts to diminish this carefully drafted statement in Brown by asserting that it is “dictum.” However, far from being an unnecessary discourse on the differences between the 1978 and the 1977 death penalty law, this language in footnote 16 in Brown is highly important since it harmonized language in Easley that conflicted with Brown's conclusion that the 1978 law was not a mandatory one.
Moreover, even assuming arguendo that the closing arguments of the prosecutor and defense counsel could render this type of instructional error harmless, the record in this case fails to demonstrate that either one properly apprised the jury of the scope of its sentencing discretion. Specifically, neither one argued that even if the jury concluded that the aggravating circumstances outweighed the mitigating ones, the jury could nevertheless sentence defendant to life if it concluded that the “net” aggravation was not sufficient to justify the death penalty.