Does a jury need to be instructed that they can consider sympathy when making a penalty determination?

The defendant in People v. Caro (1988) 46 Cal.3d 1035, 251 Cal.Rptr. 757, 761 P.2d 680 raised a similar claim, asserting that the court erred by failing to make clear to the jury that it had " the power to exercise mercy. " (Id . at p. 1067, 251 Cal.Rptr. 757, 761 P.2d 680.) In that case, the trial court had instructed the jurors that they "could consider sympathy." (Ibid . ) This court rejected the defendant's argument that additional instruction was necessary because there was "a crucial difference between pity, sympathy, and mercy," concluding instead that the instructions as given could not have created any ambiguity for the jury regarding its power to exercise mercy when making its penalty determination. (Ibid . )

[2 Cal.5th 776]