I concur in the judgment. After review, I have concluded that none of defendant’s contentions warrants reversal.
I write separately to explain why I reject two specific claims.
First, the prosecutor did not commit misconduct when he argued that defendant’s alleged dangerousness in prison bore on the question of punishment.
Under the 1978 death penalty law, the circumstances material to sentence are those defined in Penal Code section 190.3. (People v. Boyd (1985) 38 Cal.3d 762, 772-776 [215 Cal.Rptr. 1, 700 P.2d 782].) The aggravating circumstances do not include future dangerousness. (See Pen. Code, § 190.3.) The mitigating circumstances, however, embrace anything that the defendant proffers as a basis for life. (People v. Boyd, supra, 38 Cal.3d at pp. 775-776.) When a defendant presents evidence or argument to demonstrate that he would not be dangerous in prison, the People may attempt to show the contrary. (People v. Gordon (1990) 50 Cal.3d 1223, 1270 [270 Cal.Rptr. 451, 792 P.2d 251].) Here, defendant offered such evidence and argument. The prosecutor’s remarks constituted a proper response.1
*753Second, the trial court did not seriously err in instructing the jury on the process of determining penalty. To be sure, it should not have declared that “Before the jury can return a verdict of confinement in the state prison for life without possibility of parole, all 12 jurors must agree that the factors in aggravation do not outweigh the factors in mitigation.” To the contrary, jurors may determine that aggravating factors outweigh mitigation and nevertheless conclude that life without possibility of parole is the appropriate sentence. The instruction given in this instance by the trial judge had the potential to skew the jury’s sentencing discretion in favor of death and against life, and certainly should not be delivered in the future.
In this case, however, the threat was avoided. The trial court also stated: “If the mitigating evidence gives rise to compassion or sympathy for the defendant, the jury may, based upon such sympathy or compassion alone, reject death as a penalty, [fl] A mitigating factor does not have to be proved beyond a reasonable doubt to be considered, [fl] You may find that a mitigating factor exists, if there is any substantial evidence to support it. [^|] Moreover, the law does not require that you find the existence of any mitigating factor before you choose life without the possibility of parole over death.”
Accordingly, having concluded that none of defendant’s contentions warrants reversal, I concur in the judgment.
Appellant’s petition for a rehearing was denied March 13, 1991.
I recognize that some of our cases may be read to suggest that under the 1978 death penalty law, the People may always argue future dangerousness in every case. The source of this mischievous notion is dictum in the plurality opinion in People v. Davenport (1985) 41 Cal.3d 247, 288 [221 Cal.Rptr. 794, 710 P.2d 861]. The dictum does not even acknowledge People v. Boyd, supra, 38 Cal.3d 762, or its teaching. It merely—and ineffectively—attempts to distinguish People v. Murtishaw (1981) 29 Cal.3d 733 [175 Cal.Rptr. 738, 631 P.2d 446], In that case—which was decided under the 1977 death penalty law (Stats. 1977, ch. 316, § 4, p. 1256 et seq.)—we held that expert opinions on future dangerousness could not be presented. (29 Cal.3d at pp. 767-774.) We reasoned: “(1) expert predictions that persons will commit future acts of violence are unreliable, and frequently erroneous; (2) forecasts of future violence have little relevance to any of the factors which the jury must consider in determining whether to impose the death penalty; (3) such forecasts, despite their unreliability and doubtful relevance, may be extremely prejudicial to the defendant.” (Id. at p. 767.) To support its dictum, the Davenport plurality stated that prosecutorial argument on future dangerousness is not prohibited by the United States Constitution. (41 Cal.3d at p. 288.) That, of course, is beside the point: the question is whether such comments are barred by the 1978 death penalty law. The Davenport plurality also implied that argument by a prosecutor is not as potentially prejudicial as opinion by an expert. (Ibid.) That, too, is of no consequence: unless and until the issue is raised by the defendant, future dangerousness is simply immaterial under the 1978 death penalty law.