How have courts interpreted factor (a) in the context of a murder trial?

In People v. Melton (1988) 44 Cal.3d 713, 244 Cal.Rptr. 867, 750 P.2d 741, we stated, "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 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.)

"When reviewing a supposedly ambiguous [i.e., potentially misleading] jury instruction, `"we inquire `whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution."'" (People v. Welch, supra, 20 Cal.4th 701, 766, 85 Cal.Rptr.2d 203, 976 P.2d 754.)

We discern no such reasonable likelihood here. "[W]e have already concluded that the standard instructions do not inherently encourage the double counting of aggravating factors. [Citations.] We have also recognized repeatedly that the absence of an instruction cautioning against double counting does not warrant reversal in the absence of any misleading argument by the prosecutor." (People v. Barnett (1998) 17 Cal.4th 1044, 1180, 74 Cal.Rptr.2d 121, 954 P.2d 384.) There was no misleading argument here.

The prosecutor's closing argument separated the murders and other crimes at the body shop as circumstances of the crime under section 190.3, factor (a), from the evidence of defendant's other prior misconduct, informing the jurors that they were not to consider the circumstances of the crimes both under section 190.3, factor (a), and as prior violent criminal activity (id., factor (b)) or as prior felony convictions (id., factor (c)). Pointing to information presented in chart form, she said, "The boards that are in yellow represent [defendant's] felony convictions. The boards that are in red represent his violent acts, and the board that is in purple represents the underlying crimes in the body shop." In sum, she said nothing that might mislead the jury as defendant suggests. (See People v. Barnett, supra, 17 Cal.4th 1044, 1179, 74 Cal.Rptr.2d 121, 954 P.2d 384.) As stated, this record gives no indication of a reasonable likelihood that the jury applied the instructions given it in a legally improper manner.