In what circumstances will a jury overturn a death penalty jury's finding that a robbery and burglary committed during the course of the crime be considered an independent aggravating factor?

In Melton, we observed that a penalty jury is directed by section 190.3, subdivision (a), to consider both the circumstances of the crime, among which are the related felonies committed by the defendant, and any special circumstances the jury had found to be true. Regardless of their designation as "special circumstances," therefore any robbery and burglary committed by defendant in the course of his homicidal conduct could properly be considered an independent aggravating factor. Each involved violation of distinct [46 Cal.3d 955] interest that society seeks to protect, and a defendant who commits both offenses in the course of a murder may be deemed more culpable than a defendant who commits only one. ( People v. Melton, supra, 44 Cal.3d 713, 767, 244 Cal.Rptr. 867, 750 P.2d 741.)

We find no reason, therefore, to depart from the conclusion reached in Melton that

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Ramos Error

Defendant claims that the death verdict must be set aside because the jury was given the instruction condemned by this court in People v. Ramos (1984) 37 Cal.3d 136, 207 Cal.Rptr. 800, 689 P.2d 430. The instruction was never given, however. With the acquiescence of the prosecutor who had inquired of the Attorney General and advised the court that it was anticipated that the instruction would be held to be improper, the court decided it would not give that instruction.

Brown Error