I concur fully in Justice Broussard’s concurring and dissenting opinion and agree that the trial court’s failure to clarify the “shall” language of the penalty phase instruction, together with the prosecutor’s arguments, constituted prejudicial error. I *1290write separately to express my views on the proportionality review issue discussed in the majority opinion.
As my colleagues indicate, there is no requirement under the Eighth Amendment that states undertake proportionality review of the sentences imposed in capital cases. (See Pulley v. Harris (1984) 465 U.S. 37, 50-51 [79 L.Ed.2d 29, 40-41, 104 S.Ct. 871].) However, it remains an open question whether some form of proportionality review is required, either under the state Constitution or other provisions of the federal Constitution. In my view, condemned individuals are at the least entitled, as a matter of state constitutional equal protection (Cal. Const., art. I, § 7, subd. (a)), to the comparative sentencing review guaranteed by statute to other felons in this state.
I.
The United States Supreme Court has held that the Eighth Amendment to the federal Constitution does not require “comparative proportionality review by an appellate court ... in every case in which the death penalty is imposed and the defendant requests it.” (Pulley v. Harris, supra, 465 U.S. at pp. 50-51 [79 L.Ed.2d at p. 40].)
Pulley does not preclude the states, either by legislation or judicial decision, from requiring proportionality review as “an additional safeguard against arbitrarily imposed death sentences . . . .” (Id., at p. 50[79 L.Ed.2d at p. 40].) Even the majority in Pulley admonished that proportionality review is “a matter that the state courts should consider, if they are so inclined . . . .” (Id., at p. 42 [79 L.Ed.2d at p. 35].) As Justice Brennan’s dissent in Pulley noted, “over 30 States now require . . . some form of comparative proportionality review before any death sentence may be carried out.” (Id., at p. 71, fn. omitted [79 L.Ed.2d at p. 54].1 In spite of the *1291Pulley holding, “each State of course remains free to continue the practice.” (Ibid., fn. 6.)
This case is the first automatic appeal since Pulley to consider in any detail whether proportionality review is required under constitutional principles not at issue in that decision. By holding that there is no credible basis for concluding that appellant’s sentence is disproportionate—at least insofar as that term has been elucidated in past decisions of this court—the majority implicitly recognize that some form of proportionality review is required for capitally condemned individuals.
However, the majority go on to hold that equal protection principles do not require “disparate sentencing review” for such individuals, even though that review procedure is given to all persons sentenced under the uniform determinate sentencing law (hereafter DSL). It is this latter holding with which I take issue.2
Some seven years ago, a plurality of this court in People v. Frierson, supra, 25 Cal.3d 142 announced its intention to conduct a limited form of *1292proportionality review. Writing for the court, Justice Richardson noted that the principles derived from In re Lynch (1972) 8 Cal.3d 410 [105 Cal.Rptr. 217, 503 P.2d 921] “demonstrate our awareness of a constitutionally derived responsibility to assess the proportionality of a particular punishment in criminal cases generally to assure that justice is dispensed in a reasonably evenhanded manner. Such a responsibility and commitment borne in criminal cases which invoke a more modest sanction can be no less when the penalty is the most extreme.” (People v. Frierson, supra, 25 Cal.3d at p. 183.)3
Although the Frierson plurality observed that “not all of [the Lynch] tests of disproportionality may be appropriate in reviewing a sentence of death in a particular case” (25 Cal.3d at p. 183), it did recognize this court’s duty to conduct such review. In fact, only one year later, a majority of this court read the Frierson dicta as “assuring] [that such] review will be available” under Lynch. (People v. Jackson, supra, 28 Cal.3d at p. 317.)
It is comforting that today’s majority correctly acknowledge their responsibility in this regard and address appellant’s claim under Lynch. (See maj. opn., ante, at p. 1286.) I frankly find no fault with their conclusion that in view of the circumstances of appellant’s offense and the comparison with other offenses in California and elsewhere, appellant cannot credibly assert that his punishment is disproportionate within the meaning of Lynch. (Maj. opn., ante, at p. 1286.)
Unfortunately, the majority’s proportionality analysis is limited to the Lynch inquiry. They reject appellant’s contention that equal protection principles demand, at a minimum, the same form of sentence review given to individuals sentenced under the DSL. Both that conclusion and the analysis on which it is based are severely flawed.
II.
This state already has in place an elaborate form of statewide comparative review of sentences in noncapital felony cases prosecuted under the DSL. As I shall demonstrate, state equal protection principles demand no less in capital cases.
*1293When the Legislature enacted the DSL in 1976, it found that the purpose of punishment “is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances.” (Pen. Code, § 1170, subd. (a)(1).4) With this legislation, detailed statutory guidelines for the initial determination of sentences were enacted. (See §§ 1170, subd. (a)(2)- 1170.6.)
The DSL also directed the Judicial Council to “seek to promote uniformity in sentencing under Section 1170, by . . . [t]he adoption of rules providing criteria for the consideration of the trial judge at the time of sentencing . . . .” (§ 1170.3.) The Judicial Council responded by adopting a detailed set of rules to be utilized by trial judges in pronouncing sentence. (See Cal. Rules of Court, rules 401-453.) A stated objective of the sentencing rules is to “[a]chiev[e] uniformity in sentencing.” (Id., rule 410(g).)
Even with these directives, the Legislature remained concerned that sentencing disparity might continue unless a statewide comparative review mechanism were established. (See People v. Martin (1986) 42 Cal.3d 437, 442-443 [229 Cal.Rptr. 131, 722 P.2d 905].) It therefore mandated a procedure known as “disparate review” to ensure uniformity of state prison sentences imposed under DSL. Within one year after the commencement of a defendant’s term of imprisonment, the Board of Prison Terms (hereafter BPT or board) is required to review his or her sentence “to determine whether [it] is disparate in comparison with the sentences imposed in similar cases.” (§ 1170, subd. (f)(1).)
The disparate review process “concerns itself with the statistical uniformity of DSL sentences imposed on those convicted of similar crimes under similar circumstances.” (People v. Herrera (1982) 127 Cal.App.3d 590, 597 [179 Cal.Rptr. 694].) “The board has acquired data on over 75,000 cases, including, in each case, the prisoner’s criminal history, his social background, the circumstances of each offense, and the actual sentence. When it receives a new case, the board conducts a preliminary screening (an Automated Sentence Review) to determine the range of possible sentences and the relative likelihood of each. A computerized simulation generates 10,000 theoretical sentences for the cases. The computer then determines the percentage of simulated sentences which are equal to or higher than the actual sentence imposed, and provides a statistical measure of the difference between the expected sentence and the actual sentence. If both criteria exceed an established threshold, the case is identified as one requiring further analysis.
*1294“In the secondary screening process, the board’s staff obtains a list of cases comparable to the subject case. The staff examines the file in the subject case and each comparable case to determine if there are facts which would justify a statistically disproportionate sentence. If the staff finds none, it refers the matter to a panel of two board members and a hearing representative. The panel reexamines the subject cases and comparable cases. If it also finds no justification for a disproportionate sentence, it directs the board’s counsel to notify the court that, in its opinion, the sentence is disparate.” (People v. Martin, supra, 42 Cal.3d at p. 443.)
The notification process takes the form of a motion to the trial court by the board that the court resentence the defendant. At that point, the court “must undertake a two-step analysis. ‘First, [it] must determine whether the sentence imposed was indeed disparate.’ Second, if [it] find[s] the sentence disparate, the court[] must then decide whether to recall the sentence. [Citation.]” (Martin, supra, 42 Cal.3d at p. 445.) As to the first step, the trial court “must not only seriously consider the information provided by the board; it must give weight to the. finding of the board.” (Id., at p. 446.)
Martin held that the trial court must give “great weight” to the board’s finding of disparity “unless based upon substantial evidence it finds that the board erred in selecting the appropriate comparison group or in determining that defendant’s sentence differs significantly from that imposed upon most members of that group. If there are unique elements in the case which render it unsuitable for comparison with other cases, or subjective factors which distinguish it from other cases, such matters can be considered in the second part of the analysis when the court considers whether a disparate sentence is justified.
“In the second stage, the trial court must again give great weight to the board’s finding of disparity, a finding it upheld in the first stage of the analysis. . . . [G]iving great weight to the finding . . . require[s] the court to recall its sentence unless there is substantial evidence of countervailing considerations which justify a disparate sentence.” (Martin, supra, 42 Cal.3d at pp. 447-448, fns. omitted.) Finally, “the trial court [must] state on the record its reasons for finding that a sentence is or is not disparate; if it finds disparity but nevertheless declines to reduce the sentence to a nondisparate term, it should explain the reasons which justify a disparate sentence.” (Id., at p. 450.)5
*1295III.
Ten years ago, this court unanimously concluded that “personal liberty is a fundamental interest, second only to life itself, as an interest protected under both the California and the United States Constitutions.” (People v. Olivas (1976) 17 Cal.3d 236, 251 [131 Cal.Rptr. 55, 551 P.2d 375].) A state may not create a classification scheme which affects a fundamental interest without showing that it has a compelling interest which justifies the classification and that the distinctions drawn are necessary to further that purpose. (Ibid.; People v. Saffell (1979) 25 Cal.3d 223, 228 [157 Cal.Rptr. 897, 599 P.2d 92]; In re Moye (1978) 22 Cal.3d 457, 465 [149 Cal.Rptr. 491, 584 P.2d 1097].)
“Some decisions speak of an initial constitutional inquiry to determine whether the groups affected are similarly situated with respect to the purpose of the legislation or other state action. [Citation.] To ask whether two groups are similarly situated in this context, however, is the same as asking whether the distinction between them can be justified under the appropriate test of equal protection. Obvious dissimilarities between groups will not justify a classification which fails strict scrutiny (if that test is applicable) or lacks a rational relationship to the legislative purpose. [Citations.]” (Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal. 3d 779, 798, fn. 19 [187 Cal.Rptr. 398, 654 P.2d 168].)
Although felons sentenced to a fixed term of imprisonment and individuals condemned to die possess “obvious dissimilarities,” this dissimilarity is not significant enough to preclude equal protection scrutiny of the state’s reasons for treating them so profoundly differently with respect to disparate review. Several classes of persons who possess “obvious dissimilarities” have been held similar enough to warrant scrutiny under the equal protection clause. (In re Hop (1981) 29 Cal.3d 82, 89 [171 Cal.Rptr. 721, 623 P.2d *1296282] [developmentally disabled and mentally ill persons]; Newland v. Board of Governors (1977) 19 Cal.3d 705, 710-711 [139 Cal.Rptr. 620, 566 P.2d 254] [felons and misdemeanants]; In re Moye, supra, 22 Cal.3d 457, 465-468 [mentally disordered sex offenders and insanity defendants]; People v. Olivas, supra, 17 Cal.3d 236 [youthful offenders and adults].) Far fewer differences exist between condemned individuals and felons sentenced to a fixed term of imprisonment than between the classes of persons held to be similarly situated in this court’s past decisions.
California has afforded the overwhelming majority of felons the guarantee that their prison terms will be reviewed to determine if such terms are disproportionate to those imposed for similar conduct in similar cases throughout the state. Certainly, an individual condemned to death has as much right to review as a “common” felon.
The illogic of denying disparate review to a capitally condemned individual becomes apparent when one realizes that similar conduct may lead to vastly different sentencing results. Compare, for example, the individual convicted of voluntary manslaughter for a killing during a robbery with another individual convicted and sentenced to death for a similar crime. The former faces a maximum prison term of 11 years (see § 193) and receives the benefit of the board’s disparate review procedure. The latter, condemned to die, does not.
Does the mere fact that the latter defendant acted with malice and the intent to kill (see Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862]), while the former did not, provide a sufficient reason for failing to give him the benefit of this review procedure? I think not. To paraphrase the United States Supreme Court in Skinner v. Oklahoma (1942) 316 U.S. 535, 541 [86 L.Ed. 1655, 1660, 62 S.Ct. 1110], “[w]hen the law lays an unequal hand on those who have committed intrinsically the same quality of offense and [gives disparate review to one] and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.”
Justice Tobriner once observed that “[although the due process clause does not require a state to provide an appeal from a criminal conviction, nevertheless, when the state does provide such an appeal it cannot sanction procedures which render that appeal meaningless or deprive one class of convicted defendants of the opportunity to secure redress for an incorrect application of the law to them. [Citations.]” (In re Anderson (1968) 69 Cal.2d 613, 645, fn. 8 [73 Cal.Rptr. 21, 447 P.2d 117] (conc. & dis. opn.).) His observation applies with similar force in an equal protection context *1297where the state has given the benefit of disparate sentencing review to one group of convicted individuals but denied it to another.
I have previously observed that this court is not presently equipped to perform meaningful proportionality review. (People v. Jackson, supra, 28 Cal. 3d at p. 362 (dis. opn. of Bird, C. J.).) In the absence of such a structure, the BPT’s mechanism for reviewing sentences to ensure their statewide proportionality should be extended to capitally sentenced individuals under the equal protection clause of our state charter. (Cal. Const., art. I, § 7, subd. (a).) To the extent practicable, the disparate review procedures embodied in section 1170, subdivision (f) should be utilized.
The majority offer three reasons why disparate review would be inappropriate in capital cases. First, they argue, the “primary sentencing authority” is the jury, not the trial judge. (Maj. opn., ante, at p. 1287.) Since the jury cannot be recalled to reconsider a disparate sentence, it would, according to the majority, “contravene the jury’s proper sentencing role to place in a judge’s hands the responsibility for deciding whether the long-discharged jury would adhere to its sentence on ‘substantial evidence’ if confronted with a finding of ‘disparity.’” (Ibid., italics in original.)
No one has ever suggested, of course, that by adapting the disparate review procedure to capital cases, the original sentencing jury would have to be reconvened to “reconsider” the BPT’s finding that a death sentence was disparate. Certainly nothing in the disparate review procedures now in place compels a trial court to reconvene all of the participants—attorneys, witnesses, probation officers, and the like—who were present at the initial sentencing hearing. Obviously, a carbon-copy replay of the sentencing hearing in either context is impossible.
Beyond this, it is fallacious to assume that placing in the judge’s hands the responsibility and authority to reconsider a jury’s disparate sentence would somehow trespass on the jury’s function. There is, according to the United States Supreme Court, no federal constitutional right to a capital sentencing jury; thus, for example, there is no federal constitutional impediment to a judge’s decision to overrule a capital jury’s determination that the defendant’s life should be spared. (Spaziano v. Florida (1984) 468 U.S. 447 [82 L.Ed.2d 340, 104 S.Ct. 3154] [upholding Florida’s procedure whereby a trial judge may impose a death sentence despite jury’s contrary verdict].) A fortiori, there is no bar to a judge overruling a jury’s death verdict.
Significantly, our death penalty statute expressly gives the trial judge the discretion to modify a jury’s death verdict. Indeed, a defendant whom a *1298jury has sentenced to death is “deemed to have made an application for [such] modification . . . .” (§ 190.4, subd. (e).) And, it is reversible error for the trial court to fail to review independently the weight of the evidence presented at penalty phase and determine whether to reduce the verdict. (People v. Rodriguez (1986) 42 Cal.3d 730, 792-794 [230 Cal.Rptr. 667].) In light of these facts, the disparate sentence review procedure cannot be avoided on the ground that a reduction of the jury’s verdict by the trial judge would “interfere” with the jury’s function.
The majority also claim that the disparate sentence law is “designed to isolate sentences that are beyond the ‘normal range’ for similar offenses.” (Maj. opn., ante, at p. 1287.) According to the majority, the “normal range” for defendants convicted of murder with special circumstances is life without the possibility of parole or death. Since “either is within the ‘normal range’ of expected sentences for offenses such as those the death-eligible defendant has committed” (id., at p. 1287), the disparate review procedure would, in their view, be an exercise in futility.
This reasoning misses the mark. One goal of disparate review of a death sentence would be to discover whether there are similarly culpable individuals with similar criminal backgrounds who had received sentences of life without the possibility of parole rather than death. A death sentence may be disproportionate—and therefore “abnormal”—in some circumstances even though that sentence marks the outer boundary of the “normal range” in the capital sentencing scheme. The fact that there is no punishment greater than death does not render such a sentence intrinsically incapable of being compared to lesser sentences.
Finally, the majority claim that the “‘nonquantifiable’ aspects of capital sentencing are much greater” than in the DSL context. (Maj. opn., ante, at p. 1287.) From this premise, they reason that the Legislature could properly conclude that “superficial factual similarities among capital cases with opposite sentencing results” (id., at p. 1287) establish no presumption of disparateness. Therefore, they conclude, the disparate review procedures are ill-suited to capital cases.
It is true that the range of information the capital sentencer takes into account must, as a matter of constitutional imperative, be far reaching. (See Lockett v. Ohio (1978) 438 U.S. 586, 604-605 [57 L.Ed.2d 973, 989-990, 98 S.Ct. 2954].) It is also true that the capital jury must be permitted to apply its own moral standards to its sentencing determination. (Cf. Caldwell v. Mississippi (1985) 472 U.S. 320, 328-335 [86 L.Ed.2d 231, 239-243, 105 S.Ct. 2633, 2639-2642].)
*1299However, one cannot ignore that in this state, “nonquantifiable information” constitutes only a part of the evidence the capital jury must consider. Contrary to the majority’s implication, there are several “quantifiable” circumstances on which the sentencer bases its determination. The first 10 of the 11 aggravating and mitigating circumstances listed in section 190.3 (i.e., subds. (a) through (j)) which the sentencer must “take into account and be guided by” in making its sentencing choice are factors based to a large extent on “quantifiable” information. Many of these factors closely parallel the aggravating and mitigating circumstances on which a trial judge may rely in imposing the upper or lower term in a noncapital case. (See Cal. Rules of Court, rules 421 & 423.)6
Even subdivision (k) of section 190.3, which, as construed in People v. Easley (1983) 34 Cal.3d 858, 878, footnote 10 [196 Cal.Rptr. 309, 671 P.2d 813], directs the jury to consider “‘any 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 proffers as a basis for a sentence less than death’” contemplates the introduction of “quantifiable” evidence. As several automatic appeal records before this court indicate, the defendant often relies on subdivision (k) to present not only evidence that he has never “been in trouble” with the law but other objective evidence of exemplary conduct, in order to persuade the sentencer to vote in favor of life.
There are many “nonquantifiable” aspects to noncapital sentencing as well. The factors on which a trial judge may base a sentence choice under the DSL include (1) the “high degree of cruelty, viciousness, or callousness” of the offense (Cal. Rules of Court, rule 421(a)(1), italics added), (2) the fact that the “victim was particularly vulnerable” (rule 421(a)(3), italics added), (3) the fact that the offense involved an “attempted or actual taking or damage of great monetary value” (rule 421(a)(10), italics added), (4) the existence of a “pattern of violent conduct which indicates a serious danger to society” (rule 421(b)(1), italics added), and (5) any “unusual circumstance” of the crime (rule 423(a)(3), italics added).
*1300These factors do not preclude disparate review even though they tend toward subjectivity. Indeed, it may be precisely because the Legislature believed that ‘ ‘ nonquantifiable factors ’ ’ might produce nonuniform sentences that it deemed the disparate review process necessary.
Finally, it must be remembered that a finding of disparateness by the BPT does not automatically result in a lower sentence. Such a finding is only the first step in a procedure designed to ensure closer scrutiny of the sentencing decision. Adapting the procedure to capital cases would not preclude a trial judge from letting a death sentence stand despite the board’s finding of disparateness. (See People v. Martin, supra, 42 Cal.3d at pp. 447-448; see also ante, fn. 5.)
In sum, no compelling reasons have been offered which persuade me that capital and noncapital sentencing proceedings are so vastly different as to justify the absence of disparate review in capital cases. Equal protection demands similar treatment here.
While disparate review is the minimum guarantee to which condemned individuals are entitled under the state equal protection clause, it is by no means the only form of review which this state could adopt. In this regard, I refer the majority to a prototype proportionality review system developed for states to use in conducting the review of death sentences. (Duizend et al., Proportionality Review Project, User Manual for Prototype Proportionality Review Systems (1984) National Center for State Courts.) The manual contains prototype questionnaires and outlines both a manual and automated similar case selection system, either of which could be adapted for use in this state.7
IV.
The comparative review of death sentences should be required in California. Although the majority’s willingness to engage in Lynch-type review on appeal is commendable, the refusal to accord individuals sentenced to *1301die a right which common felons have had for nearly 10 years is regrettable. It is for that reason that I decline to join the majority’s opinion.
Appellant’s petition for a rehearing was denied February 11, 1987.
Some state high courts have mandated sentence review in capital cases. In State v. Simants (1977) 197 Neb. 549 [250 N.W.2d 881, 890], quoted with approval in the lead opinion in People v. Frierson (1979) 25 Cal.3d 142 [158 Cal.Rptr. 281, 599 P.2d 587], the Nebraska Supreme Court stated that it would “perform its function of death sentence review” even in the absence of a statutory directive to do so. Thus, in Nebraska, “every capital case where there can be the slightest question will be considered in comparison with other capital cases.” (250 N.W.2d at p. 890.) This procedure is intended to guarantee that the court will reach a “similar result[s] to th[ose] reached under similar circumstances in another case.” (Ibid.)
The Arkansas Supreme Court has made similar strides. In Collins v. State (1977) 261 Ark. 195 [548 S.W.2d 106], the court recognized that even in the absence of a “specific requirement that this court compare sentences in other cases,” the scope of permissible appellate review of a death sentence “would necessarily require that we consult prior cases as precedent for our determining whether there was error in the sentencing procedure, whether the evidence was sufficient to support any finding made by the jury, whether any of the *1291findings was the result of passion or prejudice or any other arbitrary factor and whether there had been an abuse of the discretion of either the jury or the trial judge in imposing the sentence.” (Id., at p. 121.)
A similar guarantee exists in Mississippi. There, the supreme court examines similar cases to ascertain whether a given death sentence is the product of arbitrary or capricious decisionmaking. (See Jackson v. State (Miss. 1976) 337 So.2d 1242, 1256.)
And, in Delaware, the supreme court requires that each death penalty case be reviewed by comparing it “‘to the penalty recommended or imposed in similar cases . . . .’” (State v. White (Del. 1978) 395 A.2d 1082, 1096.) In order to perform that task, counsel for the state, “together with amicus curiae and such other person as may be appointed by the Court, at State expense [is required to] furnish to [the] Court such assistance as [the] Court may require in order to fulfill the statutory comparative analysis underlying the [proportionality review] requirement. . . .” (Id., at pp. 1095-1096.)
The review mandated by these courts is somewhat imperfect, since no comparison of death sentences with lesser sentences imposed in murder cases is required. (See People v. Jackson (1980) 28 Cal.3d 264, 362 [168 Cal.Rptr. 603, 618 P.2d 149] (dis. opn. of Bird, C. J.).) Nevertheless, the cases do demonstrate that other state high courts recognize the importance of undertaking some form of proportionality review.
Appellant has not raised the claim that intracase proportionality review, which may be necessary where similarly culpable individuals charged in the same case have received more lenient sentences, mandates a sentence less than death here. (See People v. Dillon (1983) 34 Cal.3d 441, 488-489 [194 Cal.Rptr. 390, 668 P.2d 697]; cf. People v. Gleckler (1980) 82 Ill.2d 145 [411 N.E.2d 849, 861]; State v. McIlvoy (Mo. 1982) 629 S.W.2d 333, 341-342; Sumlin v. State (1981) 273 Ark. 185 [617 S.W.2d 372, 375].)
Appellant has also not raised the claims that the death penalty is imposed with disproportionate frequency on (1) Black male defendants (an issue pending before this court in In re Jackson, Crim. 22165) or (2) male defendants or defendants whose victims were White (see Harris v. Pulley (9th Cir. 1982) 692 F.2d 1189, 1197-1199, vacated and remanded on other grounds, Pulley v. Harris, supra, 465 U.S. 37, remanded (9th Cir. 1984) 726 F.2d 569; see also McCleskey v. Kemp (11th Cir. 1985) 753 F.2d 877, cert, granted, July 7, 1986, — U.S. — [92 L.Ed.2d 737, 106 S.Ct. 3331] [involving what statistical showing is necessary to establish prima facie case that the death penalty is applied disproportionately to defendants whose victims are White and Black defendants whose victims are White]).
Lynch requires a three-step analysis. The court first examines “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.” (8 Cal.3d at p. 425.) The court then ascertains whether more serious crimes are punished in this state less severely than the offense in question. If so, “the challenged penalty is to that extent suspect.” (Id., at p. 426.) Finally, the court compares the penalty imposed with punishments imposed for the same offense in other jurisdictions. (Id., at p. 427.)
All statutory references are to the Penal Code unless otherwise specified.
The disparate review procedure has resulted in few findings of disparity. Among the approximately 17,000 determinately sentenced individuals received in state prison during fiscal year 1982-1983 (July 1, 1982, through June 30,1983) the board found that disparately high sentences had been imposed in only 42 cases. (Board of Prison Terms, Rep. on Sentencing Practices, Determinate Sentencing Law (Feb. 28, 1985) pp. 1, 7.) Of the 38 cases acted *1295upon by trial court which were final at the time of the board’s report, the trial courts followed the board’s resentencing recommendation on 15 occasions; on 23 occasions they did not. (Id., at p. 7.)
Although this opinion compares the disparate review procedures mandated by the DSL to the lack of any similar guarantee in capital sentencing proceedings, it is noteworthy that individuals sentenced to indeterminate terms also receive some degree of comparative review of their terms by the board. These individuals, who for the most part stand convicted of first or second degree murder or kidnapping for robbery, are given a maximum terms of life with the possibility of parole. (See §§ 190, 209, subd. (b).) Even they are entitled to have their parole release dates “set in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of párale release dates.” (§ 3041, subd. (a).) The board has promulgated regulations implementing this guarantee. (See, e.g., Cal. Admin. Code, tit. 15, § 2400 et seq. [applicable to individuals convicted of first or second degree murder].)
Indeed, the “circumstances of the crime” factor (§ 190.3, subd. (a)) encompasses some 20 facts relating to the crime which the trial judge may consider in choosing the upper or lower term. (See Cal. Rules of Court, rules 421(a) & 423(a).) For example, the “extreme duress” factor in section 190.3, subdivision (g) is nearly identical to the “coercion or duress” mitigating circumstance in rule 423(a)(4). The “presence or absence of any prior felony conviction” factor (§ 190.3, subd. (c)) is similar to the “no prior record or an insignificant record of criminal conduct” mitigating circumstance (rule 423(b)(1)). And, the “extreme mental or emotional disturbance” that the penalty sentencer may consider (§ 190.3, subd. (d)) is similar to the fact that “[t]he defendant was suffering from a mental . . . condition that significantly reduced his culpability for the crime” mitigating circumstance (rule 423(b)(2)).
If such review procedures were put in place and a disproportionate death sentence were discovered, either the trial court or this court would have the power under section 1181, subdivision 7 to modify it. That statute gives the courts the power to modify a jury-selected punishment without granting or ordering a new trial. In addition, section 1260 empowers an appellate court to reduce a punishment. This power could be invoked if, during the pendency of an appeal, a condemned individual’s sentence were discovered to be disproportionate.