When will a jury be instructed to reject a death sentence even if the circumstances in aggravation outweigh the mitigating factors?

The trial court instructed the jury in these terms: "To return a judgment of death, each of you must be persuaded that the aggravating factors are so substantial in comparison with the mitigating factors that it warrants death instead of life without parole." When the jury is instructed in this way, the trial court need not also instruct the jury to return a verdict of life without parole if the aggravating circumstances do not outweigh the mitigating circumstances. (People v. Kipp, supra, 18 Cal.4th at p. 381, 75 Cal.Rptr.2d 716, 956 P.2d 1169.)

Defendant contends the jury instructions were defective in failing to state that the jury could return a verdict of life without parole even if the circumstances in aggravation outweighed those in mitigation. Although such an instruction is not required (People v. Kipp, supra, 18 Cal.4th at p. 381, 75 Cal.Rptr.2d 716, 956 P.2d 1169), the trial court gave a special instruction so stating: "Each juror is free to assign whatever moral or sympathetic value he or she deems appropriate to each and all the various factors before him. You are free to reject death as inappropriate under the circumstances, even if you believe that the aggravating evidence predominates over the mitigating."

Defendant raises various challenges to the process for appellate review of death judgments in this state. As we have previously explained, the process is not constitutionally defective in failing to provide for comparative or intercase proportionality review. (People v. Lucero, supra, 23 Cal.4th at p. 741, 97 Cal.Rptr.2d 871, 3 P.3d 248.) Although a death sentence is subject to intracase proportionality review (id. at pp. 739-740, 97 Cal. Rptr.2d 871, 3 P.3d 248), defendant makes no claim that his sentence is grossly disproportionate to his moral culpability for the crimes he committed, and we conclude that it is not.