“so substantial” in relation to the mitigating ones as to warrant that penalty (ibid.). As in previous cases, we find no reasonable likelihood that a juror so instructed would believe he or she was required to impose death, despite insubstantial aggravating evidence, merely because no mitigating circumstances were found. (People v. Anderson (2001) 25 Cal.4th 543, 600, fn. 20; People v. Johnson (1993) 6 Cal.4th 1, 52.) In addition, the jury here was instructed, on the court’s own motion, “not to draw any adverse inferences from the defendant’s failure to . . . offer evidence in mitigation or arguments by his attorneys. [¶] The jury must decide for itself the appropriate penalty based on the factors previously given by the court.” This special instruction further guarded against the possibility a juror would believe the absence of mitigating evidence mandated a sentence of death.
XXVI. Inadequate Instruction on Lingering Doubt
Defense counsel submitted a proposed instruction on lingering or residual doubt. The court gave the instruction as modified, omitting certain text, which apparently consisted of the struck-through portions below:
“Although proof of guilt beyond a reasonable doubt has been found, you may demand a greater degree of certainty for the imposition of the death penalty. The adjudication of guilt is not infallible and any lingering doubt you entertain on the question of guilt may be considered by you in determining the appropriate penalty, including the possibility that at some time in the future, facts may come to light that have not yet been discovered. Each individual juror may consider as a mitigating factor residual or lingering doubt as to whether the defendant killed the victim. Lingering or residual doubt is defined as a state of mind between beyond a reasonable doubt and all possible doubt. Thus if any individual juror has a lingering or residual doubt about whether the defendant intentionally killed the victim, he or she must may consider this as a mitigating factor and assign to it the