Can a jury double-count the factors used to determine whether a defendant has been convicted of a capital crime as a result of the factor?

We stated in People v. Melton, supra, 44 Cal.3d 713, 244 Cal.Rptr. 867, 750 P.2d 741, "The literal language of [factor] (a) presents a theoretical problem ... since it tells the penalty jury to consider the `circumstances' of the capital crime and any attendant statutory `special circumstances.' Since the latter are a subset of the former, a jury given no clarifying instructions might conceivably double-count any `circumstances' which were also `special circumstances.' On defendant's request, the

[24 Cal.Rptr.3d 169]

trial court should admonish the jury not to do so. [] However, the possibility of actual prejudice seems remote." (Id. at p. 768, 244 Cal.Rptr. 867, 750 P.2d 741, second italics added.)

[24 Cal.Rptr.3d 169]