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a reasonable doubt.  (People v. Kipp (2001) 26 Cal.4th 1100, 1137; People v. Ochoa, supra, 19 Cal.4th at p. 479; People v. Frye, supra, 18 Cal.4th at p. 1029.)32

The jury may consider prior unadjudicated criminal activity under section 190.3, factor (b).  (People v. Jenkins (2000) 22 Cal.4th 900, 1054; People v. Barnett (1998) 17 Cal.4th 1044, 1178.)

Prosecutorial discretion to select those death-eligible cases in which the death penalty will actually be sought is not constitutionally impermissible.  (People v. Anderson, supra, 25 Cal.4th at pp. 601-602; People v. Kipp, supra, 26 Cal.4th at p. 1137; People v. Keenan (1988) 46 Cal.3d 478, 505.)

32 In his reply brief, defendant argues that Apprendi v. New Jersey (2000) 530 U.S. 466 mandates that aggravating circumstances necessary for the jury’s imposition of the death penalty be found beyond a reasonable doubt.  We reject that argument for the reason given in People v. Anderson, supra, 25 Cal.4th at pages 589-590, footnote 14:  “[U]nder the California death penalty scheme, once the defendant has been convicted of first degree murder and one or more special circumstances has been found true beyond a reasonable doubt, death is no more than the prescribed statutory maximum for the offense; the only alternative is life imprisonment without possibility of parole.  (§ 190.2, subd. (a).)  Hence, facts which bear upon, but do not necessarily determine, which of these two alternative penalties is appropriate do not come within the holding of Apprendi.”  The high court’s recent decision in Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428] does not change this analysis.  Under the Arizona capital sentencing scheme invalidated in Ring, a defendant convicted of first degree murder could be sentenced to death if, and only if, the trial court first found at least one of the enumerated aggravating factors true.  (Id. at p. ___ [122 S.Ct. at p. 2440].)  Under California’s scheme, in contrast, each juror must believe the circumstances in aggravation substantially outweigh those in mitigation, but the jury as a whole need not find any one aggravating factor to exist.  The final step in California capital sentencing is a free weighing of all the factors relating to the defendant’s culpability, comparable to a sentencing court’s traditionally discretionary decision to, for example, impose one prison sentence rather than another.  Nothing in Apprendi or Ring suggests the sentencer in such a system constitutionally must find any aggravating factor true beyond a reasonable doubt.

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