Can a jury be misled by the prosecutor in a death penalty case?

Although the prosecutor repeatedly urged the jury to follow the law if it determined that aggravating circumstances outweighed mitigating circumstances, those repeated urgings were offset by the repeated statements, already mentioned, regarding the jurors' discretionary control over the weighing process. As this court has previously observed, when jurors are told they can determine individually the weight to be assigned to the aggravating and mitigating circumstances, and can decide that one circumstance outweighs all others, they necessarily understand they have discretion to select the appropriate penalty. (People v. Burton (1989) 48 Cal.3d 843, 873, 258 Cal.Rptr. 184, 771 P.2d 1270.) Also, the prosecutor on one occasion [49 Cal.3d 1035] described the jury's penalty function expressly in terms of determining the appropriate penalty, stating: "The system is designed in such a way that it is felt better for 12 members of the community, who reflect the values of the community, to decide what is an appropriate punishment in this most serious of cases." In addition, the jurors were expressly instructed they could consider sympathy for defendant in determining penalty.

Having been thus properly informed that the weighing process involved individual discretion and was intended to result in a determination of the appropriate penalty, and that sympathy for defendant could play a role in this determination, the jurors could not have been misled by the prosecutor's repeated references to the mandatory character of the jurors' duty to impose the death penalty if the aggravating circumstances outweighed the mitigating. Nor could the prosecutor's remarks, viewed as a whole, have led the jurors to believe that the responsibility for determining the appropriateness of the death penalty rested on someone or something besides themselves. (See Caldwell v. Mississippi (1985) 472 U.S. 320, 328-329, 105 S.Ct. 2633, 2639-2640, 86 L.Ed.2d 231.)