Does the court have a sua sponte duty to instruct the jury that unanimity is not required for consideration of mitigating factors?

Defendant also argues the court had a sua sponte duty to instruct the jury that "unanimity is not required for consideration of mitigating factors." We rejected a similar contention in People v. Breaux (1991) 1 Cal.4th 281, 314-315, 3 Cal.Rptr.2d 81, 821 P.2d 585. Although "a requirement of unanimity improperly limits consideration of mitigating evidence" (id. at p. 314, 3 Cal.Rptr.2d 81, 821 P.2d 585, original italics), we held that the court did not have to give a specific instruction in light of the instructions it did give. The same is true here. The instructions neither limited the consideration of mitigating evidence nor suggested "that any particular number of jurors was required to find a mitigating circumstance. The only requirement of unanimity was for the verdict itself." (Id. at p. 315, 3 Cal.Rptr.2d 81, 821 P.2d 585.)

Defendant argues that the actual instructions were unclear. The court instructed that "a juror" may consider other crimes evidence in aggravation only if "a juror" is satisfied beyond a reasonable doubt that defendant committed them, and that "all jurors" need not agree on this point. It further instructed that "[i]f any juror is convinced beyond a reasonable doubt that such criminal activity occurred, that juror may consider that activity as a factor in this case," but not otherwise. In its concluding instructions, the court told the jury that it was "your duty" to determine which penalty to impose, that "you" shall determine the penalty, that "[y]ou" shall retire and select a foreperson, and that "to make a determination as to the penalty, all 12 jurors must agree." Defendant argues that these instructions created

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a "substantial probability" the jurors would believe "that they unanimously must agree that a mitigation factor exists before a mitigation factor can be considered." As a whole, however, the instructions were clear. The court also told the jury that the parties "are entitled to the individual opinion of each juror," and that "[e]ach of you must decide the case for yourself...." In light of this language, and the absence of a suggestion that all jurors had to agree on a mitigating factor before any could consider it, we find no reasonable likelihood the jury misconstrued the instructions as defendant contends. (People v. Clair (1992) 2 Cal.4th 629, 663, 7 Cal. Rptr.2d 564, 828 P.2d 705.)

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