Brief Bank # B-535
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELVIN M. W., )
) No. 90‑56332
Petitioner/Appellant, ) Dist. Ct. No. CV-89-0173R
DANIEL V., WARDEN OF THE )
CALIFORNIA STATE PRISON AT )
SAN QUENTIN, )
BRIEF OF AMICUS CURIA
CALIFORNIA APPELLATE PROJECT
IN SUPPORT OF PETITIONER/APPELLANT
On Appeal from the Denial of a Petition for a Writ of Habeas Corpus in a Capital Case by the United States District Court, Central District of California, the Honorable Manuel L. Real, United States District Court Judge Presiding.
CALIFORNIA APPELLATE PROJECT
MICHAEL G. MILLMAN
STEVEN W. PARNES
WENDY C. PEOPLES
One Ecker Place
San Francisco, CA 94105
Telephone: (415) 495‑0500
Counsel for Amicus Curiae
INSTRUCTING THE JURY THAT DEATH WAS MANDATORY IF “THE AGGRAVATING CIRCUMSTANCES OUTWEIGH[ED] THE MITIGATING CIRCUMSTANCES” CREATED AN IMPERMISSABLE CONCLUSIVE PRESUMPTION THAT DEATH WAS APPROPRIATE AND PREVENTED THE JURY FROM EVER ADDRESSING THE STATE’S ACTUAL CAPITAL SENTENCING STANDARD
Under the law of the state of California the prerequisite to imposition of a death sentence is a jury’s determination, in light of all relevant aggravating and mitigating circumstances, that death is the appropriate sentence. At petitioner’s trial, the concluding sentencing instruction made a death sentence mandatory upon a finding that aggravation “outweighed” mitigation ‑‑ a finding which, as amicus will demonstrate, does not necessarily, invariably, or even usually imply a jury’s belief that a death sentence is appropriate. The misleading instruction effectively created an insupportable conclusive presumption of the appropriateness of death, a presumption which violated petitioner’s right to due process. Further, by preventing the sentencing jury from ever addressing the state’s actual sentencing standard, this conclusive presumption precluded the reliable sentencing determination required by the Eighth and Fourteenth Amendments.
A. California‘s Sentencing Standard
The ultimate standard to be applied under California law in determining whether a death sentence is to be imposed is whether, in the sentencing jury’s judgment, death is the appropriate punishment in light of all the relevant evidence. “[California’s death penalty] statute should not be understood to require any juror to vote for the death penalty unless, upon completion of the ‘weighing’ process, he decides that death is the appropriate penalty under all the circumstances.” People v. Brown, 40 Cal. 3d 512, 541 (1985). “The jury is not simply to determine whether aggravating factors outweigh mitigating factors and then impose the death penalty as a result of that determination, but rather it is to determine, after consideration of the relevant factors, whether under all the circumstances ‘death is the appropriate penalty’ for the defendant before it.” People v. Meyers, 43 Cal.3d 250, 276 (1987).
Thus, under California law, no one is to be sentenced to die unless the jury ultimately decides that death is appropriate. This is true regardless of whether the aggravating circumstances are weightier than the mitigating circumstances. Indeed, this is true even where there is no mitigation whatsoever: “our statute . . . give[s] the jury broad discretion to decide the appropriate penalty by weighing all the relevant evidence. The jury may decide, even in the absence of mitigating evidence, that the aggravating evidence is not comparatively substantial enough to warrant death.” People v. Duncan, 53 Cal.3d 955, 979 (1991).
The case law explicating California’s capital sentencing standard reflects the state Supreme Court’s construction of the intent underlying California Penal Code section 190.3, par. 7, which provides in relevant part, that the trier of fact “shall impose a sentence of death if [it] concludes that the aggravating circumstances outweigh the mitigating circumstances.” (Emphasis added.) The state court, since its decision in People v. Brown, supra has consistently construed this seemingly mandatory, formula-like language as a metaphor for the difficult-to-describe process by which each juror, after considering all relevant evidence, is to reach a personal judgment as to whether death is the appropriate punishment.
The court in Brown expressly noted that instructing the jury in the statutory language posed a danger of misleading the jury as to the true nature of its role, People v. Brown, supra, 40 Cal.3d at 544 n. 17; and, since Brown, California’s standardized penalty‑phase instructions have been revised in an effort to more clearly convey to the jury the nature of the decision it is being asked to make. But for all cases, including petitioner’s, that are governed by section 190.3 of the 1978 death penalty law ‑‑ whether tried before or after Brown ‑‑ the ultimate standard is clear. No one is to be sentenced to death unless the jury determines, in light of all the relevant evidence, that death is the appropriate punishment.
B. The Instruction Given Petitioner’s Jury and the Jury’s Likely Understanding Thereof
Petitioner’s penalty trial took place in 1982, some three years before the California Supreme Court’s decision in Brown construing the statutory sentencing standard set forth in Penal Code section 190.3, par. 7. At the close of petitioner’s penalty trial, petitioner’s jury was read an instruction which essentially tracked the language of section 190.3. The jury was told that “If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death.” SCT 799; SRT 6475. No other instruction was given which explained the nature of this penalty‑determination process. No instruction connected the weighing process to, or even suggested the existence of, the jury’s ultimate responsibility to directly address and resolve the question of the appropriate sentence. Nor did anything in the arguments of either counsel suggest that the jury, if it concluded that the aggravating circumstances were “weightier” than the mitigating ‑‑ or that no mitigating factors existed ‑‑ might nonetheless act upon a belief that a sentence less than death was appropriate. Indeed, both prosecution and defense counsel presented quite the opposite view, i.e., that under applicable California law, the jury’s determination of relative weightiness would dictate its sentencing verdict.
The prosecutor began his penalty phase argument by informing the jury that it was not his purpose to cause the jury to make a decision based upon “anything other than what is reasonable and what is required under the law and the evidence.” SRT 6452 (emphasis added). He urged that in this case “the law and the evidence . . . require, necessitate, a judgment of death.” SRT 6452‑6453. He then explained “the law” by means of an analogy to “the scales of justice . . . the blindfolded lady carrying the balance beam and scales . ” SRT 6453. What the law required of the jury, he stated, was for the jury to perform “a balancing function. You balance the bad things about the defendant and about the crime against the mitigating things about the defendant or about the crime, if they exist. And whatever outweighs the other is what directs your judgment of death or life imprisonment without the possibility of parole. [Par.] It is in essence an uncomplicated process. ” SRT 6453 (emphasis added).
The prosecutor’s explanation of the law governing the jury’s decision-making process was thus quite explicit. The result of this “essen[tially] uncomplicated process” of determining whether the aggravating or mitigating circumstances were “weightier” would dictate the sentencing verdict. There was no hint that the jury, if it found the aggravating circumstances to be weightier, would nonetheless retain discretion, let alone have any responsibility, to determine whether a lesser sentence might nonetheless be appropriate.
Having provided this explanation of the law to the jury, the prosecutor pursued his contention that the law required a death sentence in this case by then reviewing the statutory aggravating and mitigating circumstances. SRT 6453‑6462. He concluded by summarizing the balance of factors as follows:
Certainly the circumstances of the offense are a factor in aggravation. The victim was not a participant in the conduct. The defendant’s participation also was not of a minor nature. . . . Also a factor in aggravation.
. . . [T]here was no extreme mental emotional disturbance . . . no moral justification of a reasonable nature . . . no extreme duress or substantial domination[, and] no impairment of capacity.
The age of the defendant. You can judge that for yourself
And there were no extenuating circumstances.
Ladies and gentlemen, it’s clear from the law that this is a case wherein the aggravating circumstances clearly, unequivocally, without any question, outweigh the mitigating circumstances. SRT 6462.
Thus, as the prosecutor saw the matter, the law compelled a death verdict. The prosecutor did go on to briefly, but directly, argue ‑‑ without reference to the balancing formula ‑‑ that petitioner “deserve[d] a judgment of death,” but nothing in his argument ever suggested that the law was other than mandatory when aggravation “outweighed” mitigation.
Defense counsel, in his argument to the jury, was not as explicit as the prosecutor concerning the mandatory nature of the balancing formula, but he nonetheless conveyed the same understanding, i.e., that the determination of which set of factors was “weightier” would dictate the sentencing verdict. Counsel did argue that “apply[ing] the law” was “not a simple process,” at least in the sense that the jury was not to simply tally up the number of aggravating and mitigating circumstances “and whichever side wins, that’s who you vote for.” SRT 6471. He urged, even if the jury found only a single mitigating circumstance — for example, the extreme mental/emotional disturbance factor upon which counsel predicated his case for life — that single factor, “if you give it that much weight,” could support a life imprisonment verdict, even if everything else was on the aggravating side. SRT 6471. But advising the jury that the process was one of weighing, not counting, and that a single mitigating factor (if given enough weight) could outweigh multiple aggravating factors did not deny or detract from the mandatory nature of the sentencing formula. Rather, such argument assumed the weighing process to be determinative of the sentencing decision. If the aggravating circumstances “outweighed” the mitigating, the law required a death verdict. Counsel conceded as much during his discussion of the extreme emotional/mental disturbance factor, the mitigating circumstance upon which he relied: “Now, if you believe that Melvin M. W. is capable of convincing all of the people he talked to, the doctors that I referred to, there’s no such defense available to him, there’s no such balancing for you.” SRT 6467‑68 (emphasis added).
Thus the arguments of both prosecutor and defense counsel conveyed the understanding that California law required a death verdict if the jury determined that the aggravating circumstances were weightier than the mitigating. The verdict forms made available to the jury would have reinforced this view of the law. The jury was given the option of choosing between the following two verdicts:
“We, the jury in the above-entitled action, find that the mitigating circumstances outweigh the aggravating circumstances and determine the punishment to be life imprisonment without possibility of parole.”
SCT 659; SRT 6451‑52.
“We, the jury in the above-entitled action, find the aggravating circumstances outweigh the mitigating circumstances and determine the punishment to be death.” SCT 661; SRT 6452.
Certainly these verdict forms suggested no possibility of returning a verdict other than death if the aggravating circumstances outweighed the mitigating.
In light of counsel’s arguments, the verdict forms provided, and the actual language of the instruction given (“If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death” SCT 799; SRT 6475; emphasis added), it is “reasonably likely,” Boyde v. California, 494 U.S. ___, ___, 108 L.Ed.2d 316, 329 (1990), and indeed, almost certain, that the jury conducted its sentencing deliberations believing, contrary to California law, that if it concluded that the aggravating circumstances were weightier than the mitigating, a death sentence was mandatory regardless of any juror’s belief that a lesser sentence was appropriate.
C. By Establishing a Conclusive Presumption of the Appropriateness of Death Upon a Finding that the Aggravating Circumstances Outweighed the Mitigating, the Jury Instruction Violated Petitioner’s Right to Due Process
As we have seen, the actual prerequisite to a death sentence under California law is the sentencing jury’s determination, in light of the relevant factors, that death is the appropriate sentence. In the present case, however, the jury was told that death was required if the aggravating circumstances outweighed the mitigating circumstances. In effect, this instruction created a mandatory, conclusive presumption that death was appropriate if the aggravating circumstances “outweighed” the mitigating circumstances. The use of such a conclusive presumption in the determination of whether petitioner should live or die ‑‑ a presumption unsupported by common sense, California case law, or available empirical evidence ‑‑ violated petitioner’s right to due process under the Fifth and Fourteenth Amendments.
Whether in a criminal or civil context, where the state makes some particular finding a prerequisite to infringing upon, or depriving a citizen of, a fundamental right or privilege, it cannot conclusively presume that ultimate finding from some predicate fact unless the predicate fact and the ultimate finding are so invariably or necessarily interrelated that no rational fact-finder could find the predicate fact without also making the ultimate required finding. Carella v. California, 491 U.S. 263, 265-66 (1989); id., 491 U.S. at 267-73 (Scalia, J., concurring) (where conclusive presumption is relied upon to establish element of crime, due process will require reversal except “[w]hen the predicate facts . . . are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact,” and “making those findings is [thus] functionally equivalent to finding the element to be presumed”); Yates v. Evatt, 500 U.S. ___ , ___ n. 10, 114 L.Ed.2d 432, 450 n.10 (1991) (discussing, with apparent approval, Justice Scalia’s Carella analysis); Vlandis v. Kline, 412 U.S. 441, 446‑448, 452 (1973) (irrebuttable presumption of student’s continued nonresidency based on nonresidency within 12 months of application for admission violated due process because “not necessarily or universally true”); Stanley v. Illinois, 405 U.S. 645, 651‑658 (1972) (irrebuttable presumption that unmarried father was unqualified to raise child violated due process; even if most unmarried fathers were unsuitable parents, not all are).
In the present case, we are dealing with a state‑established standard for depriving a citizen of the most fundamental of rights, the right to life. “[T]hat the right to life is fundamental . . . is not open to serious debate. . . . Aside from its prominent place in the due process clause itself, the right to life is the basis of all other rights. . . . It encompasses, in a sense, ‘the right to have rights,’ Trop v. Dulles, 356 U.S. 86, 102 (1958).” Commonwealth v. O’Neal, 327 N.E.2d 662, 668, 367 Mass. 440, 449 (1975).
Where, as here, the state has established a jury’s determination that death is appropriate as the basis for imposing a death sentence, it cannot, consistent with due process, conclusively presume appropriateness from a finding that the aggravating circumstances “outweigh” the mitigating, unless no rational jury could have made such a finding of relative “weightiness” without also finding ‑‑ if it had been asked to address the issue ‑‑ that death was appropriate. As we have seen, California law has recognized that there is no such necessary and invariable relationship between a determination that aggravation “outweighs” mitigation and the ultimate issue of the appropriate sentence. Under California law, death may be inappropriate even when aggravation “outweighs” mitigation, and indeed even when there is zero mitigation: “our statute . . . give[s] the jury broad discretion to decide the appropriate penalty by weighing all the relevant evidence. The jury may decide, even in the absence of mitigating evidence, that the aggravating evidence is not comparatively substantial enough to warrant death.” People v. Duncan, supra, 53 Cal.3d at 979 (emphasis added).
There are a variety of reasons why a juror who concludes that the “aggravating circumstances outweigh the mitigating circumstances” might nonetheless believe that a death sentence is not appropriate. For example, as suggested in Duncan, supra, the juror might conclude that the aggravating circumstances, although “weightier” than the mitigating circumstances, are not so substantial as to merit death. Or a juror might conclude that the aggravating circumstances, while “weightier” than the mitigating circumstances and in themselves sufficiently substantial to merit death, are nonetheless so nearly balanced by mitigation as to make a death verdict inappropriate. Further, where, as in petitioner’s case, there are no instructions tying the weighing process to the ultimate issue of the appropriateness of a death sentence, a juror’s finding that aggravation outweighs mitigation may reflect no more than a determination that on balance the defendant and his crime are bad or morally reprehensible ‑‑ a determination which certainly would not necessarily indicate that the juror has concluded the defendant should be put to death, rather than imprisoned.
That a jury’s finding that aggravation outweighs mitigation does not necessarily or even usually imply a belief that death is appropriate is dramatically demonstrated by sentencing verdicts returned by Alameda County juries during the period 1983‑1987. In the early 1980’s the bench and bar of Alameda County, concerned about the correctness of former CALJIC 8.84.2 (4th ed. 1979), modified that instruction to remove its mandatory aspect. Thus, Alameda County penalty juries were instructed that “if you find that aggravating circumstances outweigh mitigating circumstances, you may impose the death penalty.” (Emphasis added.)
Beginning in 1983, most Alameda County penalty juries were also given four verdict forms on which they indicated their consensus as to the weight of aggravating circumstances versus mitigating circumstances, in addition to their consensus regarding penalty. The standard four verdict forms read as follows:
1. We, the jury in the above cause, find that although the aggravating factors outweigh the mitigating factors, we fix the punishment at LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE.
2. We, the jury in the above entitled cause, find the aggravating factors outweigh the mitigating factors and fix the punishment at DEATH.
3. We, the jury in the above entitled cause, find that the aggravating circumstances do not outweigh the mitigating factors and fix the punishment at LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE.
4. We, the jury in the above entitled cause, find that the mitigating factors outweigh the aggravating factors and fix the punishment at LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE.
See verdict forms described in instructions given in People v. Weston, Alameda Superior Court No. 74301A, attached hereto as Appendix A.
Amicus has identified sixteen penalty trials in Alameda County from 1983 to 1987, when these instructions and verdict forms (or slight permutations thereof) were used. The results are set forth in the Table of Alameda County Cases attached hereto as Appendix B. Of the fourteen cases in which the jury found that aggravating circumstances outweighed mitigating circumstances under the permissive sentencing instruction, the jury opted for a sentence of death in seven cases. But in the seven other cases where juries similarly found that aggravation outweighed mitigation they nonetheless opted for a life sentence.
The juries’ findings in these cases demonstrate quite clearly that a jury determination that aggravation outweighs mitigation does not mean that the jury necessarily, or even usually, believes that death is the appropriate punishment. Rather, the Alameda County sentencing experience reveals that in a substantial number of cases, juries finding that aggravation outweighs mitigation will nonetheless believe, in light of their overall review of the evidence, that a life-without-parole sentence is appropriate.
In sum, as recognized by California case law and illustrated by the Alameda County verdicts, a jury finding that the aggravating circumstances outweigh the mitigating circumstances does not necessarily or invariably mean that the jury believes a death sentence is appropriate. By conclusively presuming the appropriateness of death from the jury’s finding that aggravation outweighed mitigation, the erroneous rendition of California law conveyed to petitioner’s sentencing jury violated petitioner’s right to Due Process.
D. The Opinions Below
1. The California Supreme Court
In its decision on petitioner’s direct appeal, the California Supreme Court rejected petitioner’s challenge to the “shall impose death” language of former CALJIC 8.84.2 (4th ed. 1979) on the ground that, despite the instruction’s potentially misleading language and the prosecutor’s explicit urging that “whatever outweighs the other . . . is what directs your judgment” (emphasis supplied by the court), the jury in petitioner’s case would have understood its ultimate authority and obligation to determine whether death was the appropriate sentence. People v. Wade, supra, 44 Cal.3d at 999. The court’s brief discussion of the issue cited two factors in support of its conclusion. Neither withstands analysis.
First, the court noted that the jurors “were carefully told that the weight to be given a particular sentencing factor was a matter for their own individual judgment.” lbid. But, as explained above, the fact that the weight assigned to each factor placed in the balance scales is for the jury to determine in no way detracts from the verdict-mandating character of any conclusion as to which set of circumstances is “weightier.” Nor does it in any way alter the fact that a reasonable jury, for any of the reasons noted above, could find the aggravating circumstances weightier than the mitigating, but nonetheless believe that a sentence less than death is appropriate. Certainly there is no reason to suspect that the Alameda County juries that returned life verdicts despite finding that aggravation outweighed mitigation were operating under the impression that assigning weight to the sentencing factors was anybody’s responsibility but their own.
Second, the state supreme court quoted the final portion of the prosecutor’s closing argument ‑‑ the last few paragraphs in which the prosecutor briefly but directly argued, without reference to the balancing formula, that petitioner “deserve[d] a judgment of death.” Id. at 999-1000 n. 15. What the court ignored is that these final paragraphs came after the prosecutor had explicitly argued, at some length, that the law “required” a death sentence in this case because the determination whether the aggravating or mitigating circumstances were weightier would dictate the sentence and here “the aggravating circumstances clearly, unequivocally, without any question, outweigh the mitigating circumstances.” SRT 6452-62. Nothing in those concluding paragraphs suggested that the law was anything other than mandatory once the jury had determined that the aggravating circumstances outweighed the mitigating. Rather, the prosecutor’s final remarks were simply an effort to persuade the jury that what the law “required” was palatable and just.
The California Supreme Court’s conclusion that petitioner’s jury would have understood its authority and obligation to ultimately determine the appropriate punishment is simply unsupported by the record. In light of the arguments of counsel, the verdicts forms made available, the actual language of former CALJIC 8.84.2 (4th ed. 1979) (“If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death”), and the real-world experiences in Alameda County from 1983 to 1987, it is far more likely and indeed, almost certain, that the jury believed, contrary to California law, that if it concluded that the aggravating circumstances were weightier than the mitigating, a death sentence was mandatory regardless of any juror’s belief that a lesser sentence was appropriate.
2. The District Court
The District Court’s opinion addressed petitioner’s challenge to former CALJIC 8.84.2 (4th ed. 1979) only briefly. In its entirety, the court’s discussion was as follows:
The trial court’s instructions were fully reviewed by the California Supreme Court on direct appeal People v. Wade, 44 Cal.3d 975, 244 Cal. Rptr. 905 (1988). The finding of adequacy of the court’s instructions is well supported by the record and law as applied by the Supreme Court of California. That determination may not be disturbed on consideration of this petition (See Boyde v. California, 494 U.S. ___, 110 S.Ct. 1190, 108 L.Ed.2d 316, reh’g denied, 494 U.S. ___, 110 S.Ct. 1961, 109 L.Ed.2d 322 (1990)).
Wade v. Vasquez, 752 F.Supp. 931, 935 (C.D. Cal. 1990) (“PRESUMPTION OF DEATH/’SHALL’ INSTRUCTION”).
Insofar as the district court was simply expressing agreement with the California Supreme Court’s conclusion as to how petitioner’s jury likely understood the sentencing instruction, amicus submits, for the reasons stated above, the district court was in error. The state court’s conclusion is simply not supported by the record. Contrary to the state court’s holding, it is “reasonably likely” (Boyde v. California, supra, 108 L.Ed.2d at 329), and indeed, almost certain, that petitioner’s jury was misled into believing that its verdict was controlled by the determination of the relative weightiness of the aggravating and mitigating circumstances and that a decision to return a death verdict would be arrived at without regard to any juror’s belief that a lesser sentence was appropriate.
Insofar as the district court’s citation of Boyde v. California, supra , was intended to convey that Boyde controls the merits of the issue raised ‑‑ either as to the jury’s likely understanding of the instruction or as to the legal significance of the jury’s having been misled ‑‑ the district court misread Boyde. What was at issue in Boyde was whether the Eighth Amendment requires that a sentencing jury, after finding that the aggravating circumstances outweigh the mitigating, remain free to determine whether death is the appropriate penalty. 494 U.S. at ___, 108 L.Ed. at 324, 326-27. The United States Supreme Court held that the Eighth Amendment does not impose such a requirement. Ibid.
But there was no mention in Boyde of the fact that California, as a matter of state law, requires its sentencing juries to make that ultimate determination of appropriateness; nor was there any consideration of the due process implications of giving an instruction like former CALJIC 8.84.2 (4th ed. 1979) (“If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death”) when the governing state‑law standard makes the jury’s determination of appropriateness a prerequisite to a death sentence. Further, the high court offered no view as to how the jury in Boyde would have likely understood the statutory sentencing formula. The Court simply held that requiring a jury to impose death upon a finding that aggravation outweighs mitigation, in and of itself, does not violate the Eighth Amendment.
California’s prerequisite to imposition of a death sentence is the penalty phase jury’s determination, in light of all relevant aggravating and mitigating circumstances, that death is the appropriate sentence. At petitioner’s trial, however, the concluding sentencing instruction, as likely understood by the jury, made a death sentence mandatory upon a finding that aggravation “outweighed” mitigation ‑‑ a finding which does not necessarily, invariably, or even usually imply a jury’s belief that a death sentence is appropriate. The use of this insupportable conclusive presumption of the appropriateness of death violated petitioner’s right to due process, and further, by preventing the sentencing jury from ever addressing the state’s actual sentencing standard, precluded the reliable sentencing determination required by the Eighth and Fourteenth Amendments. Accordingly, petitioner’s death sentence must be set aside.
 “In this context, the word ‘weighing’ is a metaphor for a process which by nature is incapable of precise description. The word connotes a mental balancing process, but certainly not one which calls for a mere mechanical counting of factors on each side of the imaginary ‘scale,’ or the arbitrary assignment of ‘weights’ to any of them. Each juror is free to assign whatever moral or sympathetic value he deems appropriate to each and all of the factors he is permitted to consider. . . . By directing that the jury ‘shall’ impose the death penalty if finds that aggravating factors ‘outweigh’ mitigating, the statute should not be understood to require any juror to vote for the death penalty unless, upon completion of the ‘weighing’ process, he decides that death is the appropriate penalty under all the circumstances.” People v. Brown, supra, 40 Cal.3d at 541. See also People v. (Clarence) Allen, 42 Cal.3d 1222, 1277 (1986); People v. Meyers, 43 Cal.3d 250, 274 (1987); People v. Adcox, 47 Cal.3d 207, 266 (1988); People v. (James) Johnson, 47 Cal.3d 1194, 1244(1989); People v. Douglas, 50 Cal.3d 468, 532-534 (1990); and People v. Mickey, 54 Cal.3d 612, 698-699 (1991).
 The most current form of CALJIC’s concluding penalty phase instruction, CALJIC 8.88 (5th ed. 1989 Revision) provides, in relevant part, as follows:
In weighing the various circumstances you determine under the relevant evidence which penalty is justified and appropriate by considering the totality of the aggravating circumstances with the totality of the mitigating circumstances. To return a judgment of death, each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole.
See also former CALJIC 8.84.2 (1986 Revision), and former CALJIC 8.88 (5th ed. 1988).
 Brown was the first case in which the California Supreme Court had occasion to construe the “shall impose death” language of section 190.3, par. 7. In an earlier decision, People v. Easley, 34 Cal.3d 858, 882 n.15 (1983), involving a trial court’s erroneous use of that language to instruct a penalty phase jury in a case arising under an earlier death penalty statute (the 1977 death penalty law), the California court had noted at least two possible interpretations:
Theoretically, if a jury were to interpret the 1978 law [Pen. Code § 190.3, par. 7] to mean that aggravating factors “outweigh” mitigating factors only when it believes that death is the appropriate sentence, the 1978 and 1977 [death penalty] provisions would be essentially indistinguishable. But the 1978 law does not define “outweigh” in those terms, and the wording of the 1978 provision could reasonably suggest to a jury that its task is simply to measure aggravating factors against mitigating factors and to return a death sentence whenever aggravation is more “weighty” than mitigation.
The court in Easley did not determine which of these possible constructions of the statutory language was the correct one.
 The entirety of this argument, which followed immediately upon the prosecutor’s conclusion that the “aggravating circumstances clearly, unequivocally, without any question, outweigh the mitigating circumstances,” was as follows:
This is a situation here, ladies and gentlemen, where the defendant, from what he did to that child and what he represents, deserves, deserves a judgment of death. He deserves it because there are some crimes that are so terrible that society must say that for that crime there must be the ultimate penalty so that all those who live in this society know that for this crime there must be a most extreme price, that for this crime anyone who commits it must suffer a judgment of death.
Society must say that and it must say that out of a respect for human life. There are some individuals in this society, some persons who have demonstrated their disrespect for society, for the rights of others. The truthfulness and honesty. Have demonstrated their ability to do harm to those that the society must protect above all others. Children. The weak. Those who cannot protect themselves.
There are people like that and this defendant who’s in this courtroom at this time is one of those persons that society cannot allow to remain within the society.
Society must say that for those actions, for what he has done, for the danger that he presents, he must be sentenced to a judgment of death. SRT 6462‑6464.
 The full text of counsel’s discussion of this point was as follows:
When you apply the law, just remember that it’s not a simple process. By that I mean that you don’t just add up the aggravating circumstances as you see them and add up the mitigating circumstances and whichever side wins, that’s who you vote for. That’s not the way you apply the law.
If you only find one ‑‑ for instance extreme mental emotional disturbance at commission of the crime, the mitigating side ‑‑ that one, if you give it that much weight and everything else is on the aggravating side, that’s enough to sustain your verdict of life in prison without possibility of parole. SRT 6471.
 The prosecutor, during his discussion of the various statutory factors, also advised the jury that each factor placed in the balance scales was to “be given the weight that you feel it is entitled and only that weight.” SRT 6455.
 Irrebuttable presumptions arising in civil statutes involving matters of economic regulation, and not infringing upon fundamental rights, have been upheld against due process challenges on the basis of a far less stringent standard, i.e., as long as there is a rational connection between the fact proved and the ultimate fact presumed. See, e.g., Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 28-29 (1976); Burlington Northern R. Co. v. Dept. of Public Serv., 763 F.2d 1106, 1113 (9th Cir. 1985); but see, Universal Restorations, Inc. v. United States, 798 F.2d 1400, 1406 (Fed. Cir. 1986) (in suit by contractor for recovery of contract price, irrebuttable presumption that statute-violative nondisclosure of actual overhead costs affected government’s agreement to the price was “[a]n irrebuttable presumption of fact” which “violated due process”).
 In a zero-mitigation case, the aggravating circumstances will invariably “outweigh” the mitigating circumstances. There will always be at least one aggravating circumstance at every California penalty trial, since there can be no penalty trial unless the jury first finds a special circumstance (Pen. Code §§ 190.3, par. 1; 190.4, par. 4), and the jury, as in petitioner’s case, is instructed to consider “the existence of any special circumstance found” as a penalty phase sentencing factor. See Pen. Code § 190.3, par. 6, factor (a); and SCT 789.
 As Justice Stevens has put the matter, a jury might find both (1) that “the aggravating circumstances, considered apart from the mitigating circumstances, warrant the imposition of the death penalty” and (2) that “the aggravating circumstances outweigh the mitigating factors[,]” and “yet feel that a comparison of the aggravating factors with the totality of mitigating factors leaves it in doubt as to the proper penalty.” Smith v. North Carolina , 459 U.S. 1056, 74 L.Ed.2d 622, 623 (1982) (Stevens, J., dissenting from denial of certiorari). The current version of CALJIC’s concluding penalty phase instruction, CALJIC 8.88 (5th ed. 1989 Revision), addresses this situation by advising jurors not to return a death verdict unless “persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death.” Emphasis added; see, ante, note 6 for further text of CALJIC 8.88.
 In People v. Brown, supra, 40 Cal.3d at 541 n.13, the California Supreme Court found “no statutory intent to require death if the jury merely finds more bad than good about the defendant and to permit life without parole only if it finds more good than bad.” Absent some instructional guidance as to how weight is to be assigned to the aggravating and mitigating factors, a finding that aggravation “outweighs” mitigation may mean no more than this.
 CALJIC 8.84.2 (4th ed. 1979), a precursor to current CALJIC 8.88 (see note 6, ante), was the instruction delivered to petitioner’s jury. SCT 799. Its text, in relevant part, is set forth above at page 4.
 The verdict forms returned in those cases are also attached hereto, as Appendices C, D, and E, grouped together by type of verdict returned.
 In the remaining two cases, the jury found that mitigation either was equal to or outweighed aggravation, and returned a life sentence.
 Had the seven Alameda County juries which returned such life verdicts been misled about California’s sentencing standard in the way petitioner’s jury was misled, they would have been required to return a death verdict, albeit against their actual belief that life was the appropriate sentence.
 There is certainly nothing in the record below to support an inference that petitioner’s jury, having found the aggravating circumstances to outweigh the mitigating, necessarily believed that death was appropriate. The jury, for example, could have found that the evidence of petitioner’s lack of prior felony convictions or his age or mental or emotional disturbance, when placed on the prosecutor’s balance scales, was not as “weighty” as the aggravating circumstances inherent in the capital murder. Nonetheless, if it had directly addressed the issue of the appropriate sentence, the jury might well have concluded that such mitigating evidence made life without parole the appropriate sentence.
 In so stating, the court did not expressly cite to any portion of the trial record, but was apparently referring to a statement made by the prosecutor during closing argument, and quoted above at note 10. The trial court, in instructing the jury, did not comment on who bore the responsibility for assigning weight to the various factors, or otherwise offer any guidance as to how the weighing process was to be conducted.
 The full text of these final paragraphs of argument is set forth above at note 8.
 Like petitioner’s jury, the jury in Boyde was instructed in the language of former CALJIC 8.84.2 (4th ed. 1979). Boyde, supra, 494 U.S. at ___, 108 L.Ed.2d at 325.
 In its earlier ruling in People v. Boyde, 46 Cal.3d 212, 252‑254 (1988), the California Supreme Court, in a 4-3 decision, had held that in light of the arguments of counsel, the sentencing jury would have understood its responsibility to determine the appropriate sentence. Had the United States Supreme Court adopted the state court’s conclusion as to the jury’s likely understanding of the sentencing instruction, the Eighth Amendment issue resolved by the high court in Boyde v. California would have effectively been mooted out, since the ultimate jury finding of appropriateness which Boyde claimed the Eighth Amendment required would have been made.