What is the effect of instructing the jury to consider "the existence of any special circumstances found to be true" as one of the sentencing factors?

original trial. We disagree. In Brown v. Sanders , the trial court instructed the jury to consider as one of the sentencing factors " the existence of any special circumstances ... found to be true, " thus giving the facts underlying the special circumstances "special

[471 P.3d 470]

prominence." ( Brown v. Sanders , supra , 546 U.S. at p. 224, 126 S.Ct. 884, quoting 190.3, factor (a).) The high court concluded that even assuming this instruction caused the jury to give somewhat greater weight to those facts underlying a later invalidated special circumstance, any such impact was " "inconsequential" " and could not " fairly be regarded as a constitutional defect in the sentencing process. " ( Brown v. Sanders , at p. 225, 126 S.Ct. 884 ; see id . at p. 224, 126 S.Ct. 884.) By analogy, the same lack of consequence would

[10 Cal.5th 269]