the irregularity of his penalty phase proceedings below. On the other hand, if, on a fully developed factual record, it is shown that counsel’s decision to forgo penalty phase argument fell below the applicable standard of competent representation, we will not hesitate to reverse the penalty judgment on habeas corpus and remand the matter for a new penalty trial.
XXIV. Inadequate Response to Jury Question About Parole
During its penalty deliberations, the jury sent out a note asking, “If we give life imprisonment without possibility of parole, can we be assured he will never be released from prison.” Defense counsel urged the court to tell the jury “life imprisonment without possibility of parole means exactly what it said.” The court instead told the jury to reread the instructions and that “we will have you apply common meaning to the two possible verdicts of death or life imprisonment without possibility of parole.” Defendant contends this response violated his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
We disagree. The court’s response did not differ significantly from that which defense counsel sought. The “common meaning” of “life imprisonment without possibility of parole” is that the defendant will be imprisoned for the rest of his life, without any possibility of release on parole. This is the same meaning conveyed by counsel’s suggested response that the term “means exactly what it said.” The court’s response also satisfied our holding in People v. Kipp (1998) 18 Cal.4th 349, that when the jury expresses a concern regarding the effect of a life-without-parole sentence, the court should instruct the jury “to assume that whatever penalty it selects will be carried out” or give a “a comparable instruction.” (Id. at pp. 378-379.)