What is the principal problem with a proposed instruction in a death penalty case where the jury is instructed to accept a sentence of death or life without possibility of parole?

Applying these principles here, the first and principal problem with the proposed instruction is that it is not accurate. It ignores the power of the superior court to reduce a sentence of death on review under section 190.4, subdivision (e). It ignores the Governor's power of commutation. In commenting on its decision in California v. Ramos, the United States Supreme Court noted the prerequisite for upholding the [753 P.2d 65] Briggs instruction had been the determination that the instruction was both relevant to a legitimate state penological interest and accurate. ( Caldwell v. Mississippi, supra, 472 U.S. 320, 335, 105 S.Ct. 2633, 2642-2643, 86 L.Ed.2d 231.) It is as incorrect to tell the jury the penalty of death or life without possibility of parole will inexorably be carried out as it is to suggest they need not take their responsibility as seriously because the ultimate determination of penalty rests elsewhere.