Can a jury consider the mental state of the accused in mitigation of the penalty?

We have indicated in other decisions, however, that no such mistaken implication is reasonably inferred if the jury understood it should consider defendant's background and mental condition, including less-than-extreme mental illness. (See, e.g., People v. Odle, supra, 45 Cal.3d 386, 419, 247 Cal.Rptr. 137, 754 P.2d 184.) In this case the court expressly instructed the jury that under section 190.3, factor (i) they could consider the defendant's health, family background, and personal history, and under section 190.3, factor (k) could consider anything else offered by defendant in mitigation of the penalty. In light of these [50 Cal.3d 184] instructions there is no reasonable possibility that the jury failed to consider the evidence of defendant's mental illness and, thus, no error.

2. Definition of "mitigating".

Defendant further objects to the court's instruction defining mitigating circumstance "as that which does not constitute a justification or excuse of the offense in question, but which in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability." It is true that in People v. Lanphear (1984) 36 Cal.3d 163, 165, 203 Cal.Rptr. 122, 680 P.2d 1081, we found an instruction directing the jury to consider circumstances which " 'in fairness and mercy, must be considered in extenuating or reducing the degree of moral culpability' " insufficient to cure the court's error in instructing the jury not to consider sympathy. (Id. at p. 169, 203 Cal.Rptr. 122, 680 P.2d 1081.) However, the instructions in the present case expressly directed the jury to consider sympathy, as well as "defendant's educational, health, and family background[, t]he defendant's personal history and potential to contribute to mankind." We perceive no error.

3. "Shall" impose a penalty of death.

The trial court instructed the jury in the statutory language: "If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death." Defendant contends this instruction together with the prosecutor's argument misled the jury into returning a death verdict without determining that death was the appropriate punishment for his crime. (See People v. Brown (1985) 40 Cal.3d 512, 541-544, 230 Cal.Rptr. 834, 726 P.2d 516.) We do not agree.