Does section 654 of the California Death Penalty Act prohibit a penalty phase jury from considering separate crimes based on the same act of violence?

Nor does section 654 prohibit a penalty phase jury from considering separate crimes based on the same act or acts of force or violence. The death penalty statutes "employ principles manifestly at odds with the sentencing rules derived from section 654" and, "[t]o the extent they diverge, section 190.3, the more specific, must prevail over section 654." (People v. Melton, supra, 44 Cal.3d at pp. 767-768.) As explained above, nothing in section 190.3, factor (b), prohibits the consideration of multiple criminal acts based on the same act of violence. To the extent section 654 would limit such consideration, section 190.3 rather than section 654 controls.

To the extent defendant argues the trial court erred by failing to instruct the jury not to "double-count" the violence underlying the burglary and robbery, his claim lacks merit. In Melton, we acknowledged a "theoretical problem" presented by the language of section 190.3, factor (a), which tells the jury to consider both the "circumstances" of the crime and the "special circumstances" found true. We agreed that a jury given no clarifying instructions might conceivably double-count any circumstances that were also special circumstances, and we held that, upon the defendant's request, a trial court should instruct the jury not to do so. (People v. Melton, supra, 44 Cal.3d at p. 768.) It is doubtful whether the same principles apply here; defendant complains not that the jury might double-count the circumstance that defendant committed a burglary or the circumstance that defendant committed a robbery, but rather that it might give undue weight to the violence underlying both criminal acts. In any event, defendant did not request a

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