What is the difference between a defendant's special instruction in a first degree murder case and a special circumstance finding?

In contrast, defendant's special instruction would have told the jury that the first degree murder verdict and special circumstance finding "may not be taken, in and of themselves, as justifying one penalty over the other." This sentence seemingly directs the jury determining penalty not to give any weight to the fact of a defendant's murder conviction or the existence of a special circumstance finding. That proposition is inconsistent with the language of section 190.3, factor (a). A trial court does not err when it refuses an instruction that incorrectly states the law. (People v. Gurule, supra, 28 Cal.4th at p. 659, 123 Cal.Rptr.2d 345, 51 P.3d 224.)

Recently, we held that a trial court properly rejected a similar instruction that was offered by the defendant and stated:" `The circumstances of a crime can be considered mitigating or aggravating. You are not authorized to consider the bare fact that [the defendant] has suffered a murder conviction as aggravating, but instead are required to consider the circumstances surrounding it.'" (People v. Brown (2003) 31 Cal.4th 518, 565, 3 Cal.

[12 Cal.Rptr.3d 612]

Rptr.3d 145, 73 P.3d 1137.) We held that the second sentence of this instruction was argumentative and was properly refused. (Id. at pp. 565-566, 3 Cal.Rptr.3d 145, 73 P.3d 1137.)

[12 Cal.Rptr.3d 612]