What is the test for applying the death penalty under section 190.4 of the California Penal Code?

Penal Code section 190.4, subdivision (e) provides that in ruling on the automatic application for modification of the verdict, "the judge shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in Section 190.3, and shall make a determination as to whether the jury's findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented." The court must make an "independent determination whether imposition of the death penalty upon the defendant is proper in light of the relevant evidence and the applicable law." (People v. Rodriguez (1986) 42 Cal.3d 730, 793, 230 Cal.Rptr. 667, 726 P.2d 113.)

It must be apparent that the court cannot fulfill its obligation to make an independent determination whether the penalty is proper if it does not apply the applicable law correctly. It is established that all evidence regarding defendant's character or background which he proffers as a basis for [47 Cal.3d 62] rejecting the death penalty must be considered, whether or not the evidence extenuates or mitigates the gravity of the charged offenses. (People v. Easley (1983) 34 Cal.3d 858, 875, 196 Cal.Rptr. 309, 671 P.2d 813 et seq.) The record demonstrates that the trial court erroneously limited its consideration of mitigating evidence to the literal terms of Penal Code section 190.3 factor (k), that is, to evidence which actually extenuated the gravity of the crime. As the majority note, the trial court stated that "there are no circumstances which extenuate the gravity of the crime, whether or not such circumstances were a legal

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