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Three United States Supreme Court decisions stemming from death sentences imposed under South Carolina law are readily distinguishable, in that the juries in those cases were told that the alternative to a death sentence was one of “life imprisonment” without instruction that a capital defendant given such a sentence would not be eligible for parole.  (Kelly v. South Carolina (2002) 534 U.S. 246, 250; Shafer v. South Carolina (2001) 532 U.S. 36, 44-45; Simmons v. South Carolina (1994) 512 U.S. 154, 158-160.)  Here, the jury was told that the alternative to death was life imprisonment “without possibility of parole,” and that that phrase should be understood in its ordinary sense.  Those instructions were sufficient to inform the jury that defendant would not be eligible for parole.

XXV.  Failure to Instruct, Sua Sponte, that Jury Could Choose Life Sentence Even if It Found No Mitigating Evidence

Defendant contends the trial court should, on its own motion, have instructed the jury to the effect that “[t]he jury may decide, even in the absence of mitigating evidence, that the aggravating evidence is not comparatively substantial enough to warrant death.”  (See People v. Duncan (1991) 53 Cal.3d 955, 979 [stating principle].)  The court’s failure to do so assertedly violated defendant’s rights under the Eighth and Fourteenth Amendments to the United States Constitution.

The jury here was instructed that it could consider in mitigation “[a]ny other circumstance which extenuates the gravity of the crime . . . and any sympathetic or other aspect of the defendant’s character or record” (CALJIC No. 8.85, factor (k)), that the weighing of aggravating and mitigating circumstances is not “a mere mechanical counting of factors on each side of an imaginary scale” (CALJIC No. 8.88), that the jury was free “to assign whatever moral or sympathetic value you deem appropriate” to each factor (ibid.), and that a death sentence could be returned only if each juror found the aggravating circumstances

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