¶1I concur in affirming the judgment of guilt and the finding of special circumstances. However, I dissent from the affirmance of the penalty, for I cannot agree that the errors committed by the trial court in instructing the jury were harmless under any standard. In my view they seriously misled—or at best, confused—a jury desperately seeking guidance.
¶2The judge began his penalty phase instructions with commendable prescience. He somewhat anticipated our opinion in People v. Brown (1985) 40 Cal.3d 512 [230 Cal.Rptr. 834, 726 P.2d 516], by using the permissive “may” instead of the mandatory “shall” in describing the duty of the jurors if they found aggravating outweighed mitigating factors. So far so good. But unfortunately it was all downhill from there.
¶3When the jury asked for explanation of the use of “may” by the judge, he lapsed into a discourse on the discredited “shall” language of the misguided statute. Included in his circular remarks was the statement that “the statute, itself, says it in a mandatory way. It does say ‘shall.’ ” It is difficult to understand why the judge, after giving a permissive instruction, felt it necessary to advise the jury about the text of a statute that he purported not to be strictly following. The result could only be confusing to the jurors.
¶4*1215To compound the confusion, the judge advised the jury that “if you conclude that the factors in aggravation outweigh those in mitigation, then you select this punishment. If you find the factors in mitigation outweigh those in aggravation, you select the other punishment.” (Italics added.) Obviously “this punishment” could only be understood as referring to death, the “other punishment”—the lesser—to life without possibility of parole.
¶5If that were not sufficiently confusing to the jurors, the court’s response to a specific query from a juror provided an additional dimension in tilting the result to death. A juror asked, “Regardless of which way it goes, whether it’s—if we find, say, predominantly in one direction, do we still have the option to vote the opposite way?” A simple affirmative answer would have been both correct and adequate. Instead the judge repeated, for apparent emphasis, his misleading statement that “If the factors in aggravation outweigh those in mitigation, you vote one way. If the factors in mitigation outweigh the factors in aggravation, you vote another way.” (Italics added.) Again, there can be only one conceivable explanation for the distinction between “one way”—death—and “another way”—life without possibility of parole. In effect he told the jury, despite his previous equivocal assurances to the contrary, that the weighing process would itself determine with certainty the jury’s conclusion as to penalty. This, as we should well know, is not a requirement of the law. Aggravating circumstances may be overwhelming, as they frequently are in capital cases, but the jury may nevertheless choose to impose a sentence of life without possibility of parole.
¶6In my opinion, the foregoing errors in instructions would be amply sufficient to justify reversal of the penalty. But there was more.
¶7In response to a question from the jury about how to consider various aspects of the penalty phase, the court proceeded to reiterate the general aggravating and the mitigating factors listed in the statute. The court then inexplicably described the specific aggravating factors shown by the evidence, but omitted any reference to mitigating evidence. This was highly improper and contrary to the admonition expressed by this court in People v. Cook (1983) 33 Cal.3d 400, 408 [189 Cal.Rptr. 159, 658 P.2d 86]: “a trial court that chooses to comment to the jury must be extremely careful to exercise its power ‘with wisdom and restraint and with a view to protecting the rights of the defendant.’ ” In addition, the exclusion of any mention of mitigating evidence, while emphasizing to the jury the details of aggravating evidence, runs afoul of admonitions by the United States Supreme Court in Lockett v. Ohio (1978) 438 U.S. 586, 604 [57 L.Ed.2d 973, 989, 98 S.Ct. 2954], and Eddings v. Oklahoma (1982) 455 U.S. 104, 114 [71 L.Ed.2d 1, 11, 102 S.Ct. 869]. This was clearly prejudicial error.
¶8*1216The omission of any discussion of mitigating evidence was not inadvertent, for in commenting on defendant’s motion for review of the sentence of death, the judge categorically declared there were “no factors in mitigation.” He appears to have been under the impression that because the defense testimony “was merely as to his background” and not related to the circumstances of the crime, no mitigation had been offered for consideration. This, of course, is contrary to United States Supreme Court decisions in Lockett, Eddings, and more recently Hitchcock v. Dugger (1987) _ U.S. _ [95 L.Ed.2d 347, 107 S.Ct. 1821] and Skipper v. South Carolina (1986) 476 U.S. 1 [90 L.Ed.2d 1, 106 S.Ct. 1669].
¶9For the foregoing reasons I believe we are compelled to grant the defendant a new penalty trial.
¶10Broussard, J., concurred.
¶11Appellant’s petition for a rehearing was denied December 17, 1987, and the opinion was modified to read as printed above.