I concur in the affirmance of the judgment as to guilt and in the sustaining of the special circumstance findings.
I dissent, however, from the affirmance of the judgment as to penalty. In their discussion the majority have devised a novel means to satisfy the constitutional requirement of heightened reliability for a sentence of death: no matter how misleading the instructions and the arguments of counsel may be, the prosecutor will be deemed able to “cure” the harm if his statements to the jurors are correct in some respect, and a reviewing court will stamp its approval on the ultimate result—even if the prosecutor himself is responsible in large part for misleading the jurors, and even if the result of his erroneous argument is death. I cannot subscribe to such an unprincipled “rule,” even when it is applied in the case of one of society’s malefactors. The grim satisfaction of eliminating one repetitive criminal is not worth the damage to the fair and orderly administration of justice.
As I shall show, the majority opinion is contrary to the decision of the United States Supreme Court in Caldwell v. Mississippi (1985) 472 U.S. 320 [86 L.Ed.2d 231, 105 S.Ct. 2633], and to our decision in People v. Brown (1985) 40 Cal.3d 512 [230 Cal.Rptr. 834, 726 P.2d 516], reversed on other grounds sub nomine California v. Brown (1987) 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837]. Yet my colleagues ignore this authority in order, by any means, to inflict on this defendant what they perceive to be his just deserts.
Penal Code section 190.3 (hereafter section 190.3), adopted as part of the 1978 death penalty law, states in relevant part that “the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances.”
In Brown we held that the mandatory sentencing formula of section 190.3 was not unconstitutional in itself. (40 Cal.3d at pp. 538-544.) Nevertheless, we recognized that when delivered in an instruction the unadorned statutory language might mislead the jury as to the scope of its sentencing discretion and responsibility. (Id. at p. 544, fn. 17.) With respect to cases in which the jury had been instructed in the statutory language, we announced that we would examine each such appeal on its merits to determine whether the jury may have been misled to the defendant’s prejudice. (Ibid.) This is such a case.
*657Our concerns in Brown were essentially two. The first was that the unamplified language of section 190.3 might mislead the jury as to the nature of the weighing process: “In [its] context, the word ‘weighing’ is a metaphor for a process which by nature is incapable of precise description. The word connotes a mental balancing process, but certainly not one which calls for a mere mechanical counting of factors on each side of the imaginary ‘scale,’ or the arbitrary assignment of ‘weights’ to any of them. Each juror is free to assign whatever moral or sympathetic value he deems appropriate to each and all of the various factors he is permitted to consider . . . .” (40 Cal.3d at p. 541.)
Our second concern was that the statutory language might mislead the jury as to the substance of the ultimate determination it was called on to make. Contrary to constitutional principles, that language “could be understood to require a juror (i) to determine whether ‘the aggravating circumstances outweigh the mitigating circumstances’ without regard to the juror’s personal view as to the appropriate sentence, and then (ii) to impose a sentence of death if aggravation outweighs mitigation even if the juror does not personally believe death is the appropriate sentence under all the circumstances . . . .” (People v. Allen (1986) 42 Cal.3d 1222, 1277 [232 Cal.Rptr. 849, 729 P.2d 115].) In Brown we declared that the statutory language should rather be interpreted to require that the jury make “ ‘an individualized determination on the basis of the character of the individual and the circumstances of the crime’ ” (40 Cal.3d at p. 540, italics deleted), and thereby decide “which penalty is appropriate in the particular case” (id. at p. 541).
In the case at bar, the court instructed the jury in the potentially misleading words of section 190.3, without significant addition, deletion, or modification. Further, as will appear, the prosecutor’s closing argument rendered those words actually misleading.
The prosecutor’s argument was relatively short. After making some introductory remarks and “reviewing] the law” that governed the jury’s determination, he quoted and expanded on several of the statutory sentencing factors. He then stated: “It is now your duty to determine which of the two penalties, death or confinement in the state prisons for life, without possibility of parole, shall be imposed. After having heard all of the evidence and having heard and considered the arguments of counsel, you shall consider and take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed. . . .
“If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. Again the word *658‘shall’ is used. Now, is there a schoolteacher on the jury? Somebody must know the difference between ‘may’ and ‘shall.’ ‘Shall’ in ordinary parlance in its ordinary signification is a term of command and one which must be given a compulsory meaning and denoting obligation.”
The prosecutor continued: “What the law is telling you is that you weigh the aggravating factors and the mitigating factors. So I’m going to discuss with you the aggravating factors and the mitigating factors. What you might do—and . . . ladies and gentlemen, there is nothing I can say or do to help you. This is a decision that you are going to have to make. All I can do is give you some help probably in maybe the way that you might logically go about performing your duty. You have—you might draw a big line and draw a line down like a scale.
“You might list all of the mitigating factors on one side of the scale, list all of the aggravating factors on the other side of the scale, and make a finding of fact and answer this question: Did the aggravating factors outweigh the mitigating factors? Or conversely: Did the mitigating factors outweigh the aggravating factors?
“Okay. What does the law tell you to do in that regard? If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the State Prison without the possibility of parole.
“So once you make your findings of the facts, the law is somewhat automatic. The law tells you what to do. The law doesn’t tell you how or what the facts are that you should find, but it helps you in this sense. If you find that the aggravating circumstances outweigh the mitigating circumstances, you shall impose the death penalty. If you find that the mitigating circumstances outweigh the aggravating circumstances, you shall impose life imprisonment.
“It doesn’t give you any control over that. So the law is, pretty much automatically flows from the facts as you find them.”
In concluding his argument the prosecutor told the jury: “I’ve given you some idea that I hope is at least helpful to you in arriving at this decision you have to make. Bear [that] in mind ... if you find you have to look at the law because the law has been carefully structured. The law is aware that you have a very important decision to make.
“It takes a little bit of sting out in the sense that you have to decide facts. Once you decide, if you do, that the aggravating circumstances outweigh the mitigating circumstances, it’s automatic. You shall impose death.
*659“So in that sense the law takes care of that burden or that portion of the burden. So what you are as you were at the first phase of the trial, you are finders of fact.”
The closing argument of the prosecutor thus caused the very harm we feared in Brown. First, he misled the jury as to the nature of the weighing process. He told the jurors that just as in the guilt phase, they were “finders of fact” and their determination would be a “finding of fact.” He also presented the penalty-fixing process as essentially a “mere mechanical counting of factors on each side of an imaginary ‘scale’ . . . .” (Brown, supra, 40 Cal.3d at p. 541.) Second, he misled the jury as to the substance of the ultimate decision it was called on to make. He told the jurors that the law compels them to vote for death if the aggravating factors outweigh the mitigating, regardless of their belief as to the appropriateness of that penalty—even though the law imposes no such compulsion (ibid.). Three times he erroneously called the death penalty “automatic” in these circumstances.
This understanding of the prosecutor’s argument is unaffected by the fact that he also made certain comments that seem not to narrowly cabin the sentencing process; in context, these comments are both insubstantial and insignificant. Nor is it significant that in his own argument defense counsel stated, “I think [the prosecutor] gave you a most honest and honorable discussion,” and then described the penalty determination as a moral assessment of the facts. Counsel’s remark plainly constituted an attempt to ingratiate himself with the jury and subtly put his own words into the prosecutor’s mouth; it certainly does not imply that the prosecutor’s words could reasonably be understood other than in accord with their plain meaning. Finally, my conclusion is not affected by the prosecutor’s comment in rebuttal that “I agree with practically everything counsel has said,” a similar attempt at ingratiation.
Moreover, I am unable to conclude that defense counsel’s description of the sentencing process as a moral assessment of the facts prevented the jury from being misled. In the face of the apparently mandatory language of the section 190.3 instruction and the prosecutor’s repeated quotation, paraphrase, and explication of that language, counsel’s argument would evidently be heard as little other than a plea that the jurors depart from their oaths and dispense a mercy that was not theirs to give under the law.
In addition to its effect on the potentially misleading instruction, the prosecutor’s argument was independently objectionable under Caldwell v. Mississippi, supra, 472 U.S. 320, as an attempt to minimize the jury’s sense of responsibility for determining the appropriateness of death.
In Caldwell the high court stated the relevant facts as follows. “In their case for mitigation, [Caldwell’s] lawyers put on evidence of [his] youth, *660family background, and poverty, as well as general character evidence. In their closing arguments they referred to this evidence and then asked the jury to show mercy. The arguments were in large part pleas that the jury confront both the gravity and the responsibility of calling for another’s death, even in the context of a capital sentencing proceeding. . . .
“In response, the prosecutor sought to minimize the jury’s sense of importance of its role.” (472 U.S. at pp. 324-325 [86 L.Ed.2d at p. 237].) Specifically, he told the jurors that “ ‘[defense counsel] would have you believe that you’re going to kill this man and they know—they know that your decision is not the final decision. . . . Your job is reviewable.’ ” (Id. at p. 325 [86 L.Ed.2d at p. 237].) He went on: “ ‘The decision you render is automatically reviewable by the Supreme Court. Automatically ....’” (Id. at pp. 325-326 [86 L.Ed.2d at p. 237].)
The jury returned a verdict of death and the court sentenced the defendant accordingly.
The United States Supreme Court reversed the judgment as to penalty on the ground that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” (Id. at pp. 328-329 [86 L.Ed.2d at p. 239].)
The court reasoned, in part, that an argument such as the prosecutor’s was prejudicial in that it “offers jurors a view of their role which might frequently be highly attractive. A capital sentencing jury is made up of individuals placed in a very unfamiliar situation and called on to make a very difficult and uncomfortable choice. They are confronted with evidence and argument on the issue of whether another should die, and they are asked to decide that issue on behalf of the community. Moreover, they are given only partial guidance as to how their judgment should be exercised, leaving them with substantial discretion. [Citations.] Given such a situation, the uncorrected suggestion that the responsibility for any ultimate determination of death will rest [elsewhere] presents an intolerable danger that the jury will in fact choose to minimize the importance of its role.” (Id. at pp. 332-333 [86 L.Ed.2d at p. 242].)
The court explained: “for a sentencer to impose a death sentence out of a desire to avoid responsibility for its decision presents the specter of the imposition of death based on a factor wholly irrelevant to legitimate sentencing concerns. The death sentence that would emerge from such a sentencing proceeding would simply not represent a decision that the State had demonstrated the appropriateness of the defendant’s death. This would thus also create the danger of a defendant’s being executed in the absence of *661any determination that death was the appropriate punishment.” (Id. at p. 332, fn. omitted [86 L.Ed.2d at p. 241].)
I apply this reasoning to the case at bar. At the penalty phase defense counsel urged the jury to confront its responsibility for determining, on the basis of an individualized moral assessment of the facts, whether defendant should be condemned to death. By contrast, the prosecutor repeatedly sought to minimize the jury’s sense of its constitutional responsibility. As the quoted portions of his argument plainly show, he told the jurors in essence that the responsibility for deciding the appropriateness of death rested not on them but on a reification he called “the law,” which made the ultimate penalty “automatic” if certain “facts” were “found.” It was not they but “the law,” he insisted, that bore the “burden” of condemning defendant to death.
Despite the majority’s exercise in rationalization, I cannot consider either the Brown error or the prosecutor’s independently objectionable argument to be harmless. In vacating the sentence of death in Caldwell, the high court explained: “This Court has always premised its capital punishment decisions on the assumption that a capital sentencing jury recognizes the gravity of its task and proceeds with the appropriate awareness of its ‘truly awesome responsibility.’ In this case, the State sought to minimize the jury’s sense of responsibility for determining the appropriateness of death. Because we cannot say that this effort had no effect on the sentencing decision, that decision does not meet the standards of reliability that the Eighth Amendment requires. The sentence of death must therefore be vacated.” (Id. at p. 341 [86 L.Ed.2d at p. 247].)
Until today, this court too had premised its capital decisions on the assumption that the jury recognizes its grave constitutional responsibility when it considers the question of life or death.
In the case at bar the Brown error threatened, and the prosecutor’s argument sought, to minimize the jury’s sense of that responsibility: the jurors were led to entertain the erroneous belief that it was “the law,” and not they, who rendered the verdict. Because I cannot say that either the error or the independently objectionable argument was without effect, I cannot conclude that the jury’s decision meets the reliability requirements of the Eighth Amendment.
*662For these reasons I would vacate the verdict of death and reverse the judgment as to penalty.
Broussard, J., concurred.
Appellant’s petition for a rehearing was denied April 21, 1988, and the opinion was modified to read as printed above. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.
Appendix
Defense counsel stated near the beginning of his own argument: “I think Mr. Munson gave you a most honest and honorable discussion. I don’t want to use the word ‘argument’ in dealing with this state of the trial, and he didn’t tell you that you must vote for the death penalty, or you must vote for life without possibility of parole, because he quite honestly told you that what you consider to be an aggravating circumstance is up to you, and how you want to view it; and what you consider to be a mitigating circumstance is up to you, and how you view it.” (Italics added.)
The prosecutor opened the substantive portion of his argument with the following statement: “Now, you are going to have to make one of the most important decisions that you will probably have to make in the course of your lifetime because you are going to decide based on the evidence and the law whether a human being shall suffer life imprisonment or shall suffer death, and there’s very little that I can give you or guide you on this decision, but there is an awful lot the law can give you, and there is an awful lot of things the law can provide for you in making this terrible important judgment on human life.” (Italics added.)
The prosecutor then proceeded to “review the law” that governed the jury’s determination. He began by quoting and expanding on several of the statutory sentencing factors. He continued: “It is now your duty to determine which of the two penalties, death or confinement in the state prisons for life, without possibility of parole, shall be imposed. After having heard all of the evidence and having heard and considered the arguments of counsel, you shall consider and take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed. Those were the things that I just read to you a minute or two ago, A, B, C, D.
“If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. Again the word ‘shall’ is used. Now, is there a schoolteacher on the jury? Somebody must know the difference between may and shall. Shall in ordinary parlance in its ordinary signification is a term of command and one which must be given a
compulsory meaning and denoting obligation.
«
“Now, that is the law. What the law is telling you is that you weigh the aggravating factors and the mitigating factors. So I’m going to discuss with you the aggravating factors and the mitigating factors. What you might do—and, again, ladies and gentlemen, there is nothing I can say or do to help you. This is a decision that you are going to have to make. All I can do is give you some help probably in maybe the way that you might logically go about performing your duty. You have—you might draw a big line and draw a line down like a scale.
*663“You might list all of the mitigating factors on one side of the scale, list all of the aggravating factors on the other side of the scale, and make a finding offact and answer this question-. Did the aggravating factors outweigh the mitigating factors? Or conversely: Did the mitigating factors outweigh the aggravating factors!
“Okay. What does the law tell you to do in that regard? If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the State Prison without the possibility of parole.
“So once you make your findings of the facts, the law is somewhat automatic. The law tells you what to do. The law doesn’t tell you how or what the facts are that you should find, but it helps you in this sense. If you find that the aggravating circumstances outweigh the mitigating circumstances, you shall impose the death penalty. If you find that the mitigating circumstances outweigh the aggravating circumstances, you shall impose life imprisonment.
“It doesn’t give you any control over that. So the law is, pretty much automatically flows from the facts as you find them. ” (Italics added.)
The prosecutor then considered at length the evidence presented during the trial under the several statutory factors. When he arrived at factor (k), he stated: “K, any other circumstance, any other circumstances which extenuate the gravity of the crime even though it is not a legal excuse for the crime. That means that you can consider any evidence at all in this record. You can consider the testimony of all the witnesses. You can consider all of the photographs, all the physical evidence, everything. ” (Italics added.)
As he concluded, the prosecutor stated: “I’ve given you some idea that I hope is at least helpful to you in arriving at this decision you have to make. Bear in mind that if you find you have to look at the law because the law has been carefully structured. The law is aware that you have a very important decision to make.
“It takes a little bit of sting out in the sense that you have to decide facts. Once you decide, if you do, that the aggravating circumstances outweigh the mitigating circumstances, it’s automatic. You shall impose death.
“So in that sense the law takes care of that burden or that portion of the burden. So what you are as you were at the first phase of the trial, you are finders of fact. You are judges. You are the deciders. Obviously, you could—nobody can stop you—from being arbitrary, from being capricious. You could all say, well, the aggravating circumstances do outweigh the mitigating circumstances, but the heck with it. I’m just not going to do it.
“I can’t stop you from that. The people you live with in your community can’t stop you from doing that. The only thing I can tell you is that you did take an oath.” (Italics added.)
After opening his argument with the comment about the prosecutor’s “most honest and honorable discussion,” defense counsel proceeded to compare the guilt and penalty phases of a capital trial.
“[W]e have had two stages in this trial, and the first stage you heard evidence. You heard argument. You were given instructions, and you made a decision.
“In this stage you have heard evidence. You have heard arguments. You will be given instructions, and you will arrive at a sentence.
“But those two stages have only that kind of shallow similarity. They are very different. In the first stage you were told that there are certain crimes alleged, and you were instructed by the Court that each of those crimes has certain elements, facts that must be proved, and that the standard you use is proof beyond a reasonable doubt.
“Proof beyond a reasonable doubt isn’t a mathematical formula, but it is not so hard to understand. It basically means you are very, very sure. So you can take that standard. It was almost like you do see a scale in front of you, and look at the facts, and do those facts come up to prove beyond a reasonable doubt, and you did that.
“You did your job. You knew what elements you were looking for, but here in this stage there is no special facts that are trying to be proven to you. There is no way anybody can tell you what elements you must find before you arrive at the death penalty or life without possibility of parole.
*664 “You can say, you can draw a chart with aggravating on one side, mitigating on the other, but what you decide is aggravating or mitigating is up to you, and the worst part of it is how do you compare? What is the formula?
“And I think that is what Mr. Munson quite honorably told you. It’s up to you to decide. The law tells you that you shall impose one penalty if you find the aggravating factors outweigh the mitigating. You shall impose the other if the mitigating outweigh the aggravating. But this outweighing is not something to take outside you. It can only be internalized. You become the scale that this weighing occurs on, and I think that Munson was very honorable with you in not standing up here and saying somehow the law insists you find one penalty and/or the other, and I hope I’m going to be just as honorable.” (Italics added.)
Defense counsel then proceeded to argue for the imposition of life imprisonment without the possibility of parole. He stated and explained his general opposition to the dealth penalty. He then asked the jury to exercise mercy in consideration of the hard life defendant had been forced to lead and the redeeming qualities he had nevertheless shown. He told the members of the jury; “You are the scales on which this aggravating and mitigating must be weighed, and that means that what you are as people comes into play in making this decision. You are not a jury of jackals, of lions, or ants, or of computers. You are human beings. That means you are moral animals, and it is on your own moral scale that you will make this decision. ” (Italics added.)
Defense counsel concluded: “The decision is yours. I hope that God grants you wisdom to make the right decision, what it is. I have faith in you, ladies and gentlemen. The decision is yours.”
The prosecutor then made a brief rebuttal. In opening he stated: “I have given you the law and principles of law. I have gone over each of the elements of aggravation and mitigation. I’ve tried to give you some rational way of determining the terrible decision that you have to make. I agree with practically everything counsel had said. Believe me, it’s tough to me, too. [fl] It’s tough on the judge. It’s tough on you. It’s tough on everybody. These are very difficult things to do in a society, but that’s what we have. We have courts of law. We have people from the community in which these people are charged to come in and sit in judgment of them. I simply want to get you in the framework of the mind of a judge, the moral mind, the fair mind, the mind that will take all of the issues, all of the evidence, dispassionately weigh and consider, render an honest, fair and a true verdict.” (Italics added.)
In response to defense counsel’s statement about defendant’s rehabilitative potential, which is quoted above, the prosecutor then made the comment about defendant and a homosexual cellmate, which is also quoted above.
At the conclusion, the prosecutor made the following statement: “And last, what I’m saying is you are you, but you are us. You are society. You can be selfish. You can’t say, ‘Well, gee, I want to do this. I want to do that.’
“I wish you could have that luxury. You don’t have that luxury. We have stripped you of that. You are representing all of us. You don’t have this individual luxury. You took an oath, T will follow the law. I will follow the instructions of the Court.’ Because you are representatives of the people, all of us, and I’m not going to go on to any more things. I’ve had my say.
“I think Mr. Berman had his say. I just want to remind you to follow the law. When you decide the facts, remember, please, please, you sit as judges. Drive out influences that you think may detract from that pure judgment that is needed in this decision. Drive out things that start creeping into your mind that you feel would render anything less than a pure, honest, open, fair judgment because if you do that, the quality of your judgment will be reflected in your verdict, whatever it may be.”