What is the burden of persuasion against a jury in a penalty case?

The remaining contention is that the trial court should have told the jury what to do if it found the circumstances in aggravation and mitigation to be precisely equal in weight. The contention is based on a misapprehension of the nature of the penalty determination process. At the penalty phase, each juror must determine, through the weighing process, which of the two alternative penalties is the more appropriate. Because the determination of penalty is essentially moral and normative (People v. Rodriguez (1986) 42 Cal.3d 730, 779, 230 Cal.Rptr. 667, 726 P.2d 113), and therefore different in kind from the determination of guilt, there is no burden of proof or burden of persuasion. (See People v. Williams (1988) 44 Cal.3d 883, 960, 245 Cal.Rptr. 336, 751 P.2d 395.) The jurors cannot escape the responsibility of making the choice by finding the circumstances in aggravation and mitigation to be equally balanced and then relying on a rule of law to decide the penalty issue. The jury itself must, by determining what weight to give the various relevant factors, decide which penalty is more appropriate.

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7. Reaching a Penalty Verdict Regardless of Consequences