What is the scope of the prosecutor's argument to the jury at the penalty phase of a murder trial?

With respect to the second area of potential confusion--the nature of the ultimate question which the jury must answer in determining which sentence to impose--however, there seems no question but that the jury may well have been misled to defendant's prejudice. Unlike the recent case of People v. Allen, supra, 42 Cal.3d at pages 1278-1280, 232 Cal.Rptr. 849, 729 P.2d 115 [opn. at pp. 85-89], in which we found that the prosecutor's argument would have led any reasonable juror to understand that his ultimate task was to determine whether death or life imprisonment without parole was the appropriate penalty for the defendant under all the circumstances, the prosecutor in the present case described the jurors' task at the penalty phase in the following terms: "Your job is a fact-finding process. The law dictates what the penalty shall be depending upon what weight you give, what the total weight is to each aggravating or mitigating circumstance; and you are instructed ... that you are to weigh the aggravating factors against the mitigating factors to determine which weighs the most and then the result is determined by that process. [p] It would not be appropriate for you to determine what result you want to obtain and then seek to shade the factors or the weight to give to the various factors. That would not be fulfilling your duties as a juror, and I am sure each of you will recognize the importance in the jury system of fulfilling your obligation as a juror and doing that which the law instructs you to do." ¹⁴

[43 Cal.3d 276] [729 P.2d 715]

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C. Additional Penalty Phase Contentions.