In what circumstances will a jury be instructed to consider "the expressed or implied threat to use force or violence" as a factor in determining penalty?

In determining whether instructional error has been established, we review the instructions as a whole to see if the entire charge delivered a correct interpretation of the law. (People v. Garrison (1989) 47 Cal.3d 746, 780, 254 Cal.Rptr. 257, 765 P.2d 419.) Here, the trial court instructed the jury to "consider, take into account, and be guided by" the [52 Cal.3d 640] statutory factors. A reasonable juror would understand from this instruction that evidence received at the guilt and penalty phases was to be considered only if it tended to prove one or more of the statutory factors. Further, the trial court instructed the jury that under factor (b) of section 190.3 it could consider "[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the expressed or implied threat to use force or violence." A reasonable juror would understand that, by negative implication, criminal activity not meeting these requirements was not to be considered in determining penalty. No further clarification was required.

3. Factor (k)