Does a trial court's refusal to instruct a jury to consider the concept of lingering doubt constitute prejudice?

Moreover, the trial court's refusal to give defendant's lingering doubt instruction did not otherwise amount to reversible error. In People v. Cox, supra, we observed that "[a]s a matter of statutory mandate, the court must charge the jury 'on any points of law pertinent to the issue, if requested' [citations]; thus, it may be required to give a properly formulated lingering doubt instruction when warranted by the evidence. [Citations.]" (53 Cal.3d at p. 678, fn. 20, 280 Cal.Rptr. 692, 809 P.2d 351.) In that case, we rejected the defendant's proffered instruction because it erroneously prescribed that the jury evaluate lingering doubt in a particular manner. (Ibid.) Assuming for the sake of argument that defendant's proposed instruction in this case suffered no similar infirmity, and that it was warranted by the evidence, we are still unable to conclude that the court's refusal to give the proposed instruction caused prejudice. The record shows that the defense was properly permitted to argue the concept of lingering doubt to the jury, and that it did so. Moreover, the jury was instructed to consider, if applicable, "any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime, and any sympathetic or other aspect of the defendant's character or record which appears to you as a basis for a sentence less than death, whether or not related to the offense for which he is on trial. You must disregard any jury instruction given to you in the guilt or innocence phase of this trial which conflicts with this principle." Clearly these instructions were "sufficient to encompass the concept of residual doubt about defendant's guilt." (People v. Price, supra, 1 Cal.4th at p. 488, 3 Cal.Rptr.2d 106, 821 P.2d 610, and cases cited therein; People v. Johnson, supra, 3 Cal.4th at p. 1252, 14 Cal.Rptr.2d 702, 842 P.2d 1.) Under these circumstances, we do not believe defendant would have derived any additional benefit

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[885 P.2d 76]

13. Refusal to Instruct on Mercy