Can a jury consider racial epithets at the penalty phase of a murder trial?

Defendant failed to preserve these arguments for appeal, for he requested that the trial court instruct the jury it could consider the guilt phase evidence and did not seek a limiting instruction directing the jury not to consider the racial epithets at the penalty phase. (See People v. Cooper (1991) 53 Cal.3d 771, 827, 281 Cal.Rptr. 90, 809 P.2d 865.)

In any event, defendant's claims lack merit. The jury was not given free rein to use the guilt phase evidence without restriction as a factor in aggravation supporting death as the penalty. It also received other instructions informing it that all the evidence presented, whether at the guilt phase or the penalty phase, must be evaluated according to the statutory list of aggravating and mitigating factors set out in Penal Code section 190.3. These factors do not permit racial bias to be considered as an aggravating factor; they do, however, permit the jury to consider the circumstances of the crime (Pen.Code, 190.3, factor (a)). For the reasons set forth in part II.D., ante, the evidence was relevant to one of the circumstances of the crime, defendant's motivation, and thus was properly presented to the jury. (See People v. McPeters (1992) 2 Cal.4th 1148, 1189, 9 Cal.Rptr.2d 834, 832 P.2d 146.)