I concur in the judgment insofar as it affirms the convictions and the special circumstances findings. I dissent from the affirmance of the death judgment.
I agree with the majority that in the list of aggravating and mitigating factors contained in Penal Code section 190.3, factor (b) “[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence” (former § 190.3, 5th par., subd. (b)) does not refer to the crimes involved in the charged case. If the rule were otherwise, as the majority write, the statute would contain overlapping aggravating factors, since factor (a) in the list allows the jury to consider the circumstances of the charged crime in aggravation. I agree that overlapping *527and repetitive aggravating factors may fail to guide and focus the jury’s penalty determination adequately, and may unnecessarily and prejudicially inflate the aggravating circumstances.
However, I cannot agree that the prosecutor’s use of the circumstances of the charged crime as a circumstance in aggravation under factor (b) was harmless error in this case. The record contains no evidence of other violent criminal activity, and no prior conviction was presented to the jury. Thus the jury should have considered factor (b) as a factor in mitigation, but instead, the prosecution erroneously argued that it was an aggravating factor.
When a jury is misled into treating a substantial mitigating factor as a factor in aggravation, the error may well be prejudicial. In this case, the prosecutor presented no evidence at the penalty phase. On the other hand, the defendant was able to demonstrate that he had been a caring, responsible, and much-loved member of his family, and a generous member of his community, giving time to children and the ailing elderly. The prosecutor’s theme in closing argument was that defendant’s real and enduring character was disclosed by the circumstances of the charged crime, and that defendant was a vicious criminal who was capable of behaving normally 95 percent of the time. There is a substantial possibility that his use of the charged crimes to displace the jury’s consideration of what should have been a circumstance in mitigation affected the verdict by artificially inflating a less than overwhelming case in aggravation.
But this was not the only serious error in the penalty phase. The court responded to a jury question during deliberation by directing the jury to consider only the statutory factors in aggravation and mitigation. This gave the jury the false impression that defendant’s character and background evidence was irrelevant. (See People v. Easley (1983) 34 Cal.3d 858 [196 Cal.Rptr. 309, 671 P.2d 813].) The court’s response also directed the jury not to consider the appropriateness of the death penalty in this case. (See People v. Brown (1985) 40 Cal.3d 512, 540 [230 Cal.Rptr. 834, 726 P.2d 516] (revd. on other grounds sub nom. California v. Brown (1987) 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837].)
During deliberation, the jury asked: “[Are] there any further criteria that can be used to determine one penalty as opposed to the other or is it simply the matter of our personal choice?” Over defense objection, the court responded by repeatedly telling the jury that the penalty decision was not a matter of their personal choice, and that the guidelines set out in the *528instructions (which were in the terms of the statute) were the only criteria they could use.1
We have held that the 1978 death penalty initiative, now codified as Penal Code sections 190-190.5, may give the impression that the list of factors in aggravation and mitigation is exclusive. Thus, the statute must be augmented with a jury instruction that defense character and background evidence may be considered as a basis for a sentence less than death, even if the evidence does not, in the terms of the statute, “ ‘extenuate[ ] the gravity of the crime.’ ” (People v. Easley, supra, 34 Cal.3d 858, 878, fn. 10; see also People v. Davenport (1985) 41 Cal.3d 247, 282-283 [221 Cal.Rptr. 794, 710 P.2d 861].) We have never considered such an instruction necessary in cases tried under the predecessor to the 1978 death penalty initiative. The earlier law did not explicitly limit the jury’s consideration to the listed factors. “Under the 1977 version of section 190.3, the jury must ‘consider, take into account and be guided by the aggravating and mitigating circumstances’ enumerated in that section. The statute, however, provided no further guidance or limitation on the jury’s sentencing discretion. In the absence of such a limitation, the jury was free, after considering the listed aggravating and mitigating factors, to consider any other matter it thought relevant to the penalty determination. The 1978 initiative, by contrast, provided specifically that the jury ‘shall impose a sentence of death if [it] concludes that the aggravating circumstances outweigh the mitigating circumstances. . . .’By thus requiring the jury to decide the appropriateness of the death penalty by a process of weighing the specific factors listed in the statute, the initiative necessarily implied that matters not within the statutory list are not entitled to any weight in the penalty determination.” (People v. Boyd (1985) 38 Cal.3d 762, 773, fn. omitted [215 Cal.Rptr. 1, 700 P.2d 782].)
The court’s response to the jury’s question in this case, as it told jurors that no criterion could be used unless it appeared in the fist noted in the *529instruction, destroyed the open-ended quality of the 1977 statute. The jury’s question made it clear that it was confused by the standard instruction in the terms of the statute. Obviously the district attorney’s arguments had not helped to eliminate the confusion. Instead of offering any clarification, the court required the jury to be guided only by the statutory factors. This created a certainty that the jury would think that character and background evidence not related to defendant’s culpability for the charged offense was irrelevant, since these are not mentioned as statutory criteria.
An even graver error occurred when the court repeatedly admonished the jury that they should not rely on their personal choice, but on the listed statutory criteria. In People v. Brown, supra, 40 Cal.3d 512, 540 (revd. on other grounds sub nom. California v. Brown (1987) 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837]), we held that the jury deciding penalty must be “free to reject death if it decides on the basis of any constitutionally relevant evidence or observation that it is not the appropriate penalty. Moreover, the decision is the responsibility of the jury and no one else.” A statute which “forced the jury to impose death on any basis other than their own judgment that such a verdict was appropriate” would be unconstitutional. (Id.) One of our concerns was that an instruction in the language of the 1978 initiative, telling jurors that if they find that aggravating circumstances outweigh mitigating, they “shall” impose the death penalty, might cause a juror to “ ‘determine whether “the aggravating circumstances outweigh the mitigating circumstances” without regard to the juror’s personal views as to the appropriate sentence, and then [] to impose a sentence of death if aggravation outweighs mitigation even if the juror does not personally believe that death is the appropriate sentence under all the circumstances ....’” (People v. Myers (1987) 43 Cal.3d 250, 274 [233 Cal.Rptr. 264, 729 P.2d 698], italics added.)
Obviously, personal choice in the sense of a subjective analysis of whether death is the appropriate penalty must enter into the jury’s penalty determination. We are normally confident that a jury hearing a case tried under the 1977 death penalty statute would understand this. But this jury not only did not understand that the listed factors were not exclusive, but was not certain whether subjective factors could enter into the penalty determination. The court gave the wrong answer on both points of confusion. Again, since the jury asked the question after the commencement of deliberations, it is obvious that the district attorney’s argument had not successfully elucidated the matter, and the majority’s reliance on this argument is misplaced.
The majority find the jury’s question ambiguous. In light of the ambiguity, they say that it was “proper for the court to make it clear to the jury *530that it was required to consider and be guided by the enumerated factors, and that it could not simply disregard those factors in determining penalty.” (Maj. opn. at p. 507.) The majority suggest that without the court’s response, the jury might have thought it was to decide penalty on the basis of a whim, in violation of the strictures of Furman v. Georgia (1972) 408 U.S. 238 [33 L.Ed..2d 346, 92 S.Ct. 2726], While I agree that the jury’s question may have required the court to inform the jury that it should not make the penalty determination arbitrarily, on the basis of personal whim, I do not agree that the court’s actual response performed this function. Instead, by telling the jury over and over again that personal choice should not enter into the calculus, and that only the statutory factors should be consulted, the court gave the unmistakable impression that there was no subjective element to the determination.
We normally assume that jurors follow the court’s instructions. If we follow that assumption, these jurors would have disregarded defendant’s mitigating evidence since it did not come under the statutory factor of evidence that extenuated the gravity of the crime. They would have attempted to eliminate any subjective analysis of the appropriateness of the death penalty in this case, and instead would have engaged in a mechanical weighing of the statutory factors. In addition, the district attorney’s argument almost certainly caused them to disregard a substantial factor in mitigation, that is, the lack of other violent criminal activity, and instead, to artificially inflate the number of aggravating factors that they weighed. Applying any standard of review, it is a miscarriage of justice to affirm this death penalty judgment.
Appellant’s petition for a rehearing was denied April 21, 1988. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.
The trial court’s entire answer was: “It is not a matter of your personal choice. At the time that you were sworn you were sworn to follow the law as I read it to you. This takes it out of the province of it being your personal choice.
“You are to follow the law, regardless of what your personal choice may be.
“I again will emphasize there is no further criteria other than the instructions that have previously been given you, and I will read the instructions again to you. [Court rereads penalty instructions.]
“Ladies and gentlemen of the jury, I read the guidelines that are set forth by law. You are to use those guidelines and reach your decision. There is no further criteria that I can give you, and you are not to simply make it a matter of your personal choice. The choice must be according to the law that I have given to you. Regardless of what your personal choice in any given situation might be, that’s not your duty. Your duty is not to follow your personal choice, but you are to follow what the law states that you must do, and that is what I have read to you in your instructions. Thank you. You may retire.”