PEOPLE v. FOSTER

the examination of Stockwell, the prosecutor noted that the criminalist had "preserved portions of each one of these stains so the defense would have a portion of the stain to conduct their own independent re-analysis with their own criminalist; is that correct?" Stockwell responded, "It has that potential. By keeping a remaining portion of the stain, they have that ability, yes." The prosecutor then asked, "And did you release portions of many of these stains to the defense criminalist for re-analysis?" Stockwell confirmed he did. The prosecutor then stated: "I'd like to go through here and list which stains you released portions of to the defense for re-analysis, the defense criminalist — the request from this criminalist requested starting with item A-10a."

Defendant objected "to this line of questioning on the basis of relevance." Out of the presence of the jury, defendant also objected that the prosecutor was "insinuating that this was released to a criminalist hired by the defense." The trial court asked whether the evidence in fact was released to a criminalist hired by the defense, and defense counsel confirmed it was, "but we're not using that criminalist. The reports remain confidential. He's drawing an adverse inference." The court noted that "it's already in evidence that the samples were available for re-analysis," and defense counsel added, "It's also in evidence that our criminalist picked up our stuff. I believe he testified to that." The trial court concluded that, "under the authority of [ People v. Kaurish (1990) 52 Cal.3d 648 [ 276 Cal.Rptr. 788, 802 P.2d 278]], I believe the evidence is admissible without mentioning the name of the [defense expert]. And, also, I think it's already in evidence. So I think what we are doing here is just turning out details of what has been said. There has been a waiver of any objections in any event. So the objection will be overruled and the evidence will be admissible." The prosecutor then reviewed with the witness, item by item, which stains were released to the defense. Because the trial court overruled defendant's objection, the prosecutor's questioning did not constitute misconduct. ( Hawthorne, supra, 46 Cal.4th at p. 94.)

Defendant also challenges the propriety of the prosecutor's cross-examination of Dr. Mueller, during which the prosecutor asked a series of questions "to try to clarify just what you did do in this case and what you did not do in this case." He asked whether Mueller (1) conducted a test that proved defendant did not kill the victim, (2) conducted a test that proved the blood was not defendant's blood, (3) "reanalyze[d] any of the blood . . . and show[ed] that Cellmark was wrong when they said it matched" defendant, or (4) reanalyzed any of the blood in the case. Mueller answered that he did not perform an analysis of any biological samples. The prosecutor then questioned him concerning the possibility of having a blood sample reanalyzed if the first test was not performed properly. Mueller stated there were six or seven private laboratories that perform some type of DNA testing. The prosecutor asked, "You were hired by the defense . . . to give them some advice on DNA analysis, is that correct?" Mueller responded, "On the population genetic issues." The prosecutor asked, "Did you tell them here's a lab, send that blood over there and reanalyze it?" Defense counsel interposed that he had an objection that he preferred to express outside of the presence of the jury. The court immediately responded, "The objection is sustained," and no sidebar conference occulted.

Defendant's failure to request that the jury be admonished forfeits his claim. The claim also fails on the merits. As noted above, the trial court permitted the admission of evidence establishing that portions of many of the bloodstains were preserved and released to the defense. Inquiries concerning defense testing were relevant in light of Dr. Mueller's testimony questioning Cellmark's proficiency. The prosecutor's questions suggested only what was implied by the evidence — that the defense did not possess any contrary serological evidence. Nor did the prosecutor's focus upon the absence of contrary evidence insinuate that defendant bore the burden of offering evidence of his innocence. In addition, the prosecutor's questions were not argumentative; they clearly sought to elicit relevant evidence. ( People v. Chatman (2006) 38 Cal.4th 344, 384 [ 42 Cal.Rptr.3d 621, 133 P.3d 534].)

In conclusion, we find no prosecutorial misconduct, much less a pattern of prosecutorial misconduct that would excuse defendant's failure to object to the prosecutor's questions and statements. (See Hill, supra, 17 Cal.4th at p. 821.)

9. Cumulative error

Defendant contends the various errors claimed to have occurred at the guilt phase, considered together, "render[ed] the proceedings fundamentally unfair and a denial of due process," in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and article I, sections 7 and 15 of the California Constitution. We have concluded that any presumed error in ordering defendant shackled was harmless, because there is no evidence suggesting any of the jurors saw the shackles. We also have concluded that any presumed error in the jury instruction that allowed the jury to consider defendant's prior crimes as evidence of his identity as the perpetrator was harmless, because the other evidence of identity is over-whelming. In combination, these presumed errors were harmless and did not deny defendant a fair trial.

C. Penalty Phase Issues

1. F'reinstruction of jurors

Defendant contends the trial court's instructions to prospective jurors (1) failed to explain the meaning of a sentence of imprisonment for "life without the possibility of parole," (2) encouraged jurors to speculate that such a sentence did not mean defendant never would be paroled, (3) led prospective jurors to believe the responsibility for defendant's sentence rested with the appellate courts, and (4) implied a sentence of death in the present case would not be unexpected. Defendant asserts the preinstructions violated his rights to a fair trial, due process, equal protection, and a reliable penalty determination, as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Before distributing copies of the juror questionnaire, the court explained to prospective jurors that this case was different from most court cases, because, if the jury found defendant guilty of first degree murder and found a special circumstance to be true, the jurors would be called upon to select one of two sentences — life imprisonment without the possibility of parole, or death. The court stated that there was some confusion and misinformation among the citizenry regarding our system of capital punishment, and that the court would "take a few minutes and talk to you about the state of the law today," to assist prospective jurors in answering the questionnaire's inquiries concerning the views of prospective jurors with respect to capital punishment. The court explained that the death penalty as prescribed in California had been determined by the United States Supreme Court to be unconstitutional. (See Furman v. Georgia (1972) 408 U.S. 238 [ 33 L.Ed.2d 346, 92 S.Ct. 2726].) "At that time, there were many people on death row in California, and because the law under which they had been sentenced was invalidated, their sentences were commuted to life in prison, [¶] At that time there was no punishment in California known as life without parole so all those people received a sentence of life with parole possibility. And it's because of those circumstances that men like Charles Manson and Sirhan Sirhan keep coming up for parole review. [¶] I know that it makes many of our citizens very nervous to think that these men might be paroled, but what you need to know is that their cases are unique and they are considered for parole only because of that change in the law that occurred."

The court then explained that California voters adopted a new death penalty law in 1978, which "added a new punishment to California law known as life in prison without the possibility of parole. Under that punishment, a Defendant would never be released from prison, [¶] Now, this new law was tested, which took some years, and was found by both the California Supreme Court and the United States Supreme Court to be constitutional. Many people have now been convicted under this new law, and as you may be aware, many years passed before anyone was actually executed in California, [¶] Much of that time was consumed in testing the new law and the appellate review of those Defendants' cases. However, there have been two executions in California in the recent past and I anticipate that there will be many more executions in the near future. What you need to know is the following: [¶] In 1996, in California, the law means exactly what it says. If the Defendant in this case is found guilty of first degree murder and if either of the special circumstances alleged are found to be true, then the jury will have the obligation of determining which punishment to choose, [¶] There will, under those circumstances, be a second phase of the trial, which I'll explain to you in a few minutes, [¶] At the conclusion of that phase, the jury will have only two options: Death or life imprisonment without parole, and again, you are instructed that both those punishments mean exactly what they say. If you vote for life without parole, the Defendant will never be released on parole and will never be considered for release. If you vote for death, the Defendant will be executed. I'm giving you this extremely sobering information because it is important that you understand the significance of the questions that we are asking on the questionnaire and the decisions you could be required to make." The trial court then explained the nature and role of aggravating and mitigating circumstances.

We reject defendant's contention that the trial court's statements concerning potential sentences were flawed. The court's statements made clear that the circumstances that led to a sentence of life imprisonment with the possibility of parole for some death row inmates were unique and transitory, and that the death penalty law at the time of trial provided only two options: life imprisonment without the possibility of parole, in which case "the Defendant will never be released on parole and will never be considered for release," and death, in which case "the Defendant will be executed." We find no basis whatsoever in the record to support defendant's view that the court's explanation "creat[ed] the erroneous illusion that [defendant], as other notorious criminals, might someday be eligible for parole," or his view that the references to notorious criminals would have inflamed the jury against defendant. Nor did the court's statements suggest, as defendant contends, that jurors would choose between "death and a limited period of incarceration." Therefore, we reject defendant's view that the court's explanations might have led a juror to believe that "the non-death option offered was neither real nor sufficiently severe," or that defendant would become eligible for parole. Finally, defendant fails to explain how the preinstruction "undermined the prosecution's burden of proof [and] permitted the jury improperly to speculate on penalty during both the guilt and penalty phases."

Defendant reviewed the remarks that the trial court proposed to give to the prospective jurors, and informed the court that he had no objection to these remarks. Nonetheless, we review his contentions, because the claimed errors might affect his substantial rights. (§ 1259 ["The appellate court may . . . review any instruction given, . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby."]; People v. Dunkle (2005) 36 Cal.4th 861, 929 [ 32 Cal.Rptr.3d 23, 116 P.3d 494].)

We also reject defendant's contention that the instructions led prospective jurors to believe that the responsibility for defendant's sentence rested with the appellate courts. (See Caldwell v. Mississippi (1985) 472 U.S. 320, 328-329 [ 86 L.Ed.2d 231, 105 S.Ct. 2633] ["it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere"].) The trial court's comments concerning the role of the appellate courts in testing the validity of the death penalty, and the delay in executions caused by appellate review, did not suggest that responsibility for the sentence rested with the appellate courts. Moreover, the court stated unequivocally that "[i]f you vote for life without parole, the Defendant will never be released on parole and will never be considered for release. If you vote for death, the Defendant will be executed." (Italics added.) Indeed, the court emphasized the jurors' responsibility, explaining that "I'm giving you this extremely sobering information because it is important that you understand the significance of the questions that we are asking on the questionnaire and the decisions you could be required to make."

Finally, we reject defendant's claim that the trial court's statement" "I anticipate that there will be many more executions in the near future" — "impl[ied] that a sentence of death in [defendant's] case would neither be unanticipated nor unexpected. In so stressing its expectations, the court in essence both vouched for the propriety of imposing the death penalty generally and at least implicitly urged the jury to vote for death in this case." Apparently in order to counter any impression that the 1978 death penalty legislation did not and would not lead to executions, the court explained why there had been only two executions in the eight years between the enactment of the law and the trial in the present case, and opined that there would be "many more executions in the near future." These comments clearly did not relate to the present case, and did not reflect any expectation concerning what should happen in defendant's case. Rather, the comments underscored the fact that a sentence of death would lead to execution.

Defendant complains that in preinstructing most of the prospective jurors that, in determining the appropriate penalty, they would consider all of the evidence received during any part of the trial, the trial court did not add the phrase "except as otherwise instructed." Defendant does not include any argument concerning this omission, and therefore has forfeited any related claim. (See Catlin, supra. . 26 Cal.4th at p. 133; Bamett, supra, 17 Cal.4th at p. 1182.) In any event, the trial court subsequently instructed the jurors at the penalty phase, pursuant to CALJIC No. 8.84.1, that "[y]ou must accept and follow the law that I shall state to you. Disregard all other instructions given to you in other phases of this trial."

2. Instruction concerning victim-impact evidence

Defendant contends the trial court's refusal to give his proposed instruction concerning victim-impact evidence violated his right to a decision by a rational and properly instructed jury, his due process right to a fair trial, and his right to a fair and reliable penalty determination, as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and article I. sections 7, 15, 16, and 17 of the California Constitution.

Defendant requested the following instruction: "Evidence has been introduced that may arouse in you a natural sympathy for the victim or the victim's family. [¶] You must not allow such evidence to divert your attention from your proper role in deciding the appropriate punishment in this case, [¶] You may not impose the penalty of death as a result of an irrational, purely emotional response to this evidence."

We rejected the following, similar instruction in People v. Ochoa (2001) 26 Cal.4th 398, 455 [ 110 Cal.Rptr.2d 324, 28 P.3d 78]: "`Evidence has been introduced for the purpose of showing the specific harm caused by the Defendant's crimes. Such evidence was not received and may not be considered by you to divert your attention from your proper role of deciding whether the Defendant should live or die. You must face this obligation soberly and rationally, and you may not impose the ultimate sanction as a result of an irrational, subjective response to emotional evidence and argument. On the other hand, evidence and argument on emotional though relevant subjects may provide legitimate reasons for the Jury to show mercy to the Defendant. `"We concluded in Ochoa that "[t]he proposed instruction would not have provided the jury with any information it had not otherwise learned from CALJIC No. 8.84.1, and the trial court properly refused to read [the proposed] instruction. . . ." ( Ochoa, supra, 26 Cal. at p. 455.) The trial court in the present case also instructed the jury, pursuant to CALJIC No. 8.84.1, that "[y]ou must neither be influenced by bias nor prejudice against the defendant, nor swayed by public opinion or public feelings. Both the People and the Defendant have a right to expect that you will consider all of the evidence, follow the law, exercise your discretion conscientiously, and reach a just verdict." As in Ochoa, defendant's proposed instruction would not have provided the jury with any information not otherwise furnished by CALJIC No. 8.84.1. Contrary to the views expressed by defendant, we do not believe the jurors would have interpreted the words "bias" and "prejudice" in CALJIC No. 8.84.1 to refer exclusively to racial or religious discrimination, or that jurors would have interpreted the phrase "public opinion or public feelings" to exclude the sentiments expressed by the victim's family.

3. Cumulative error

Defendant asserts that the errors committed at the guilt phase and the penalty phase, considered together, "so infected [defendant's] trial with unfairness as to make the resulting conviction fundamentally and inherently unfair and a denial of due process of law, and the judgment of death constitutionally unreliable," in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. We have concluded that any presumed error in ordering defendant shackled was harmless, because there is no evidence suggesting any of the jurors saw the shackles. We also have concluded that any presumed error in the instruction that allowed the jury to consider defendant's prior crimes as evidence of his identity as the perpetrator of the present offenses was harmless, because the other evidence of identity is overwhelming. In combination, these presumed errors were harmless and did not deny defendant a fair trial.

D. General Challenges to California's Death Penalty Scheme

1. Instructions concerning mitigating and aggravating factors

Defendant contends the jury instructions regarding mitigating and aggravating factors, and the jurors' application of these factors, rendered defendant's death sentence arbitrary and capricious, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

a. The circumstances of the crime

The trial court instructed the jury, pursuant to CALJIC No. 8.85, to "consider and take into account and be guided by the [factors set forth in section 190.3] if applicable." The first factor is "[t]he circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true." (§ 190.3, factor (a).) Defendant acknowledges that the United States Supreme Court rejected a challenge to factor (a) based upon the provision's asserted vagueness ( Tuilaepa II, supra, 512 U.S. 967, 975-980), but he contends that, as applied over time, factor (a) has become arbitrary and capricious. He relies upon the variety of circumstances that have been invoked by prosecutors in other cases to support imposition of the death penalty, such as that the victim was a child, an adolescent, a young adult, in the prime of life, or elderly; the victim was killed by a single wound, or by multiple wounds; the victim struggled, or the victim did not struggle; or the victim had a prior relationship with the defendant, or was a stranger to the defendant. It was apparent in Tuilaepa II that factor (a) would allow wide-ranging and arguably contradictory circumstances to be urged as aggravating factors. In his dissenting opinion, Justice Blackmun complained that factor (a) "has been exploited to convince jurors that just about anything is aggravating," including that the defendant killed for a motive or for no motive; killed in cold blood or hot blood; attempted to conceal the crime or made no attempt to conceal the crime. ( Tuilaepa II, supra, 512 U.S. at pp. 986-987 (dis. opn. of Blackmun, J.).) Similarly, the majority in Tuilaepa II acknowledged in connection with section 190.3, factor (i)"the age of the defendant at the time of the crime" "that in the typical case the prosecution argues in favor of the death penalty based on the defendant's age, no matter how old or young he was at the time of the crime." ( Tuilaepa II, at p. 977.) This reality did not cause the majority concern; rather, it viewed competing advocacy concerning the significance of any particular factor as helpful to the jury. "Competing arguments by adversary parties bring perspective to a problem, and thus serve to promote a more reasoned decision, providing guidance as to a factor jurors most likely would discuss in any event." ( Ibid.) As we observed in People v. Brown (2004) 33 Cal.4th 382 [ 15 Cal.Rptr.3d 624, 93 P.3d 244], the range of circumstances considered in capital cases "reflects . . . that each case is judged on its facts, each defendant on the particulars of his offense. Contrary to defendant's position, a statutory scheme would violate constitutional limits if it did not allow such individualized assessment of the crimes but instead mandated death in specified circumstances. [Citation.]" ( Id. at p. 401.) Thus, it is clear that the history of the circumstances identified by prosecutors as aggravating under factor (a) does not render the sentencing scheme arbitrary or capricious.

The court also instructed that "[p]otential aggravating factors are limited to those listed in CAL/IC No. 8.85 factors A, B, and C only. You may not consider any other evidence as an aggravating factor. You may not consider the absence of mitigating factors as an aggravating factor. You may not consider the same facts more than once in determining the presence of aggravating factors." (Italics added.) Defendant complains that "the court did not define what it meant by the reference to CALJIC No. 8.85." No definition or explanation of this reference was required. This instruction was given immediately after CALJIC No. 8.85's description of the factors that could be considered, and its reference to "factors A, B, and C" could only have been to the factors just described. In addition, the court provided the jurors with a copy of the instructions, and the CALJIC No. 8.85 instruction was labeled with its CALJIC number at the end of that instruction. (See People v. Mills (2010) 48 Cal.4th 158, 200-201 [ 106 Cal.Rptr.3d 153, 226 P.3d 276] ( Mills) [the court presumes jurors follow the court's instructions, including the written instructions])

The People assert defendant forfeited this challenge by failing to advance it in the trial court. As the People acknowledge, however, "this court has consistently considered `as applied' challenges to California's death penalty law . . . on their merits without discussing whether they were raised at trial. [Citations.]" ( People v. Hernandez (2003) 30 Cal.4th 835, 863 [ 134 Cal.Rptr.2d 602, 69 P.3d 446].) As in Hernandez, we need not decide whether an objection was necessary, because defendant's contention lacks merit in any event.

b. Prior criminal activity

The second factor in section 190.3 is "[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence." (§ 190.3, factor (b).) The trial court instructed the jury, pursuant to CALJIC No. 8.87, that evidence had been introduced for the purpose of showing that defendant had engaged in such activity, including the robbery and forcible rape of Johnnie C, the kidnapping, robbery, forcible rape, and forcible oral copulation of Dinah J., the robbery and assault with intent to commit rape of Cindy M, and the threats to use force against Bunny Lynn Miles's daughter. It explained that "[b]efore a juror may consider any of such criminal acts as an aggravating circumstance in this case, a juror must first be satisfied beyond a reasonable doubt that the defendant . . . did in fact commit such criminal acts . . . . [¶] It is not necessary for all jurors to agree. If any juror is convinced beyond a reasonable doubt that such criminal activity occurred, that juror may consider that activity as a fact in aggravation."

Defendant claims error in the admission of "unreliable" evidence of his unadjudicated crimes of oral copulation with respect to Dinah J. and of threats with respect to Miles, and the failure to require that the jury unanimously find the unadjudicated activity to be true before considering it under section 190.3, factor (b). We repeatedly have rejected claims that evidence of unadjudicated criminal activity should not be admitted, as well as claims that the jury must make unanimous findings with respect to evidence admitted under factor (b). We also have rejected the contention that the decisions in Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403, 124 S.Ct. 2531] ( Blakely), Ring v. Arizona (2002) 536 U.S. 584 [ 153 L.Ed.2d 556, 122 S.Ct. 2428] ( Ring), and Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435, 120 S.Ct. 2348] ( Apprendi) require otherwise. ( People v. D'Arcy (2010) 48 Cal.4th 257. 308 [ 106 Cal.Rptr.3d 459, 226 P.3d 949] ( D'Arcy) [the court need not instruct that the jury must unanimously find true an aggravating factor; Blakely, Ring, and Apprendi do not alter this conclusion]; Mills, supra, 48 Cal.4th at p. 214 [California's death penalty law is not invalid for failing to require unanimous findings of aggravating factors, nor for permitting consideration of unadjudicated criminal activity; Blakely, Ring, and Apprendi do not preclude consideration of unadjudicated criminal activity].) Finally, we have rejected the contention that allowing consideration of unadjudicated criminal activity in capital cases, while forbidding its consideration in noncapital cases, violates a defendant's right to equal protection of the laws. ( D'Arcy, supra, 48 Cal.4th at p. 301.) Defendant provides no reason for us to reconsider these decisions.

Defendant does not address in what way the particular evidence of unadjudicated criminal activity was "unreliable." Rather, his theory seems to be that allowing a single juror to rely upon such evidence, in the absence of a unanimous finding that the unadjudicated criminal activity occurred, renders the process unreliable. Thus, his characterization of the evidence as "unreliable" presents no issue different from what we have considered in the cases cited above, which reject the contention that the jury must be required to reach a unanimous conclusion regarding the presence of an aggravating factor.

c. Restrictive adjectives in the description of mitigating factors

The jury was instructed, pursuant to CALJIC No. 8.85, that it could consider "[w]hether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance," and "[w]hether or not the defendant acted under extreme duress or under the substantial domination of another person." Defendant asserts that the adjectives "extreme" and "substantial" "acted as a barrier to the consideration of mitigation." We repeatedly have rejected this contention. ( Gamache, supra, 48 Cal.4th at p. 406 [use of the word "extreme" did not prevent the jury from considering relevant mitigating evidence]; D'Arcy, supra, 48 Cal.4th at p. 308 [use of "extreme" and "substantial" does not violate the 5th, 6th, 8th, or 14th Amends.]; Mills, supra, 48 Cal.4th at pp. 210-211 [rejecting challenge to use of the word "extreme"].)

d. The absence of a requirement of written findings

Defendant also claims error in the failure to require written findings regarding the aggravating factors found and considered by the jury in selecting the punishment of death. We repeatedly have rejected this contention. ( Gamache, supra, 48 Cal.4th at p. 406 [there is no state or federal requirement of written findings]; Mills, supra, 48 Cal.4th at p. 214 [the death penalty law is not unconstitutional for failing to require written findings].)

2. Instructions concerning the jury's consideration of aggravating and mitigating circumstances

Defendant contends the trial court's instruction, pursuant to CALJIC No. 8.88, concerning the meaning and weighing of aggravating and mitigating circumstances, deprived him of his rights to due process, equal protection, a fair trial by jury, and a reliable penalty determination of penalty, as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

The People contend defendant forfeited these claims by failing to assert them in the trial court. Because his claims of error would affect his substantial rights, we address them. (§§ 1259, 1469.)

First, he challenges the instruction that, "[t]o 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." He asserts that the phrase "so substantial" is impermissibly vague, citing Arnold v. State (1976) 236 Ga. 534 [ 224 S.E.2d 386], which invalidated an instruction that described, as an aggravating circumstance, that the defendant "`has a substantial history of serious assaultive criminal convictions. `"( Id., 224 S.E.2d at p. 391.) According to the Georgia court, "Whether the defendant's prior history of convictions meets this legislative criterion is highly subjective." ( Id. at p. 392.) We previously have rejected this contention. ( People v. Page (2008) 44 Cal.4th 1, 55-56 [ 79 Cal.Rptr.3d 4, 186 P.3d 395]; People v. Breaux (1991) 1 Cal.4th 281, 316 [ 3 Cal.Rptr.2d 81, 821 P.2d 585].) As we explained in Page, the difference between the two uses of the phrase arises from the different contexts of its usage. "The jurors in Arnold were called upon to decide, in isolation and without further guidance, whether a defendant's prior criminal record was `substantial,' whereas the jurors [instructed pursuant to the CALJIC instructions] were instructed extensively with respect to the manner of performing their task and were called upon to compare the totality of the aggravating circumstances with the totality of the mitigating circumstances. The instructions adequately explained that the jurors `could return a death verdict only if aggravating circumstances predominated and death is the appropriate verdict.' [Citation.]" ( Page, supra, 44 Cal.4th at p. 56.)

Second, defendant complains that the instruction failed to inform the jurors that the central determination entrusted to them is whether the death penalty is the appropriate punishment, not merely an authorized punishment. As we have explained, however, "[b]y advising that a death verdict should be returned only if aggravation is `so substantial in comparison with' mitigation that death is `warranted,' the instruction clearly admonishes the jury to determine whether the balance of aggravation and mitigation makes death the appropriate penalty. [Citations.]" ( People v. Arias (1996) 13 Cal.4th 92, 171 [ 51 Cal.Rptr.2d 770, 913 P.2d 980]; see also People v. Taylor (2009) 47 Cal.4th 850, 899-900 [ 102 Cal.Rptr.3d 852, 220 P.3d 872] ( Taylor); People v. Griffin (2004) 33 Cal.4th 536, 593 [ 15 Cal.Rptr.3d 743, 93 P.3d 344].)

Third, defendant complains that the instruction failed to inform the jurors that if the mitigating circumstances outweighed the aggravating circumstances, they were required to return a sentence of life imprisonment without the possibility of parole. Again, we previously have rejected this contention. The principle that jurors "must return a verdict of life without [the] possibility of parole if mitigation outweighs aggravation . . . is clearly implicit in the standard instruction." ( Taylor, supra, 47 Cal.4th at p. 900.)

3. Burden of proof and other safeguards

Contrary to defendant's contentions, this court consistently has held that the trial court is not "required to instruct the penalty jury on any burden of proof; in California, at the penalty phase, there is no burden of proof, only a normative judgment for the jury. [Citations.]" ( Gamache, supra, 48 Cal.4th at p. 407.) Nor must the jury unanimously agree with respect to any particular aggravating circumstance, find all aggravating factors beyond a reasonable doubt, find that the aggravating circumstances outweigh the mitigating circumstances, or find that death is the appropriate penalty. ( Id. at pp. 406-407; D'Arcy, supra, 48 Cal.4th at p. 300; People v. Cruz (2008) 44 Cal.4th 636, 681 [ 80 Cal.Rptr.3d 126, 187 P.3d 970].) The decisions in Blakely, supra, 542 U.S. 296, Ring, supra, 536 U.S. 584, and Apprendi, supra, 530 U.S. 466, do not affect these conclusions. ( D'Arcy, supra, 48 Cal.4th at pp. 300-301; Mills, supra, 48 Cal.4th at p. 214; People v. Martinez (2010) 47 Cal.4th 911, 967 [ 105 Cal.Rptr.3d 131, 224 P.3d 877].) Finally, "[t]he federal Constitution does not require that the jury be instructed on a presumption in favor of a sentence of life imprisonment without possibility of parole. [Citations.]" ( D'Arcy, supra, 48 Cal.4th at p. 301.)

Notwithstanding this principle, defendant asserts the trial court should have given his proposed instruction that defendant had no burden to prove the existence of a mitigating factor. As noted above, the trial court was not required to instruct on any burden of proof. In any event, defendant withdrew this proposed instruction.

4. Intercase proportionality review

Defendant contends the absence of intercase proportionality review violates his rights to a fair trial, due process, and equal protection, and to be free from arbitrary and capricious imposition of the death penalty, as guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. He concedes that the United States Supreme Court and this court have rejected this contention. ( Pulley v. Harris (1984) 465 U.S. 37, 50-51 [ 79 L.Ed.2d 29, 104 S.Ct. 871]; Gamache, supra, 48 Cal.4th at p. 407.) "First, intercase proportionality review . . . is not required to render California's sentencing scheme constitutional. [Citations.] Second, the equal protection clause does not require California to include in its capital sentencing scheme the same disparate sentence review previously provided noncapital convicts under the Determinate Sentencing Act. [Citations.]" ( Gamache, at p. 407.) Defendant offers no persuasive reason for us to reconsider this conclusion.

5. International law

Defendant contends California's death penalty scheme violates the prohibition against "cruel, inhuman or degrading treatment or punishment," set forth in article VII of the International Covenant on Civil and Political Rights. He also contends that evolving international norms render a sentence of death "cruel and unusual" under the Eighth Amendment to the United States Constitution, particularly to the extent this sentence is employed as a regular punishment for a substantial number of crimes. We have concluded, however, that "California's use of capital punishment as an authorized sentence for certain specified types of first degree murder does not constitute cruel and unusual punishment merely because most nations have chosen not to employ the death penalty at all. [Citations.] Nor does our statute violate the International Covenant on Civil and Political Rights. [Citations.]" ( Taylor, supra, 47 Cal.4th at p. 900; see also D `Arcy, supra, 48 Cal.4th at p. 309; Mills, supra, 48 Cal.4th at p. 215.)

III. CONCLUSION

For the foregoing reasons, the judgment is affirmed in its entirety.

Kennard, J., Baxter, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.