Does the word "shall" in the closing argument of a murder trial influence the jury's decision to award the death penalty?

Defendant relies on the prosecutor's use and emphasis in closing argument of the word "shall" and contends such argument, coupled with the potentially misleading pattern instruction, misled the jury into believing it had no choice of penalty once it concluded the aggravating circumstances outweighed the mitigating ones. We disagree. Although the prosecutor used the word "shall," "[n]owhere did the prosecutor urge the jury to merely count the number of aggravating and mitigating factors and mechanically or arithmetically impose the death penalty." (People v. Sanders (1990) 51 Cal.3d 471, 522, 273 Cal.Rptr. 537, 797 P.2d 561.) Moreover, the prosecutor informed the jury "[t]hat in the end [the decision] is a moral judgment that each of you will have to make as to the appropriate weight to be ascribed to

[29 P.3d 81]

each of these factors," that "[t]here is no numerical figure that you can place on these [factors]," "[w]hat you have to do is balance, weigh those factors that you determine to be in mitigation, and I submit that there are very few in this case, they are entitled to minimal weight in this case, against the factors in aggravation," and "[t]here are no numbers. You can't go through and say we have put one here, two there. You evaluate it. It is a moral judgment. You have to decide what weight each of these factors is entitled to. Having done that, you weigh them and determine what the appropriate penalty is."

[29 P.3d 81]