¶1I concur in the affirmance of the judgment as to guilt and in the sustaining of the special circumstance findings.
¶2I dissent, however, from the affirmance of the judgment as to penalty. I disagree with the majority’s holding that the jury may consider two special circumstance allegations describing an indivisible course of conduct as separate aggravating factors. Further, the record demonstrates to me that the trial court, in ruling on the automatic application for modification of the verdict of death under Penal Code section 190.4, subdivision (e), misapplied the law defining the relevance of mitigating evidence regarding defendant’s character and background.
¶3*61The jury found two special circumstances to be true: robbery-murder and kidnapping for the purpose of robbery (Pen. Code, § 190.2, subd. (a)(17)(i) and (ii)). I agree with defendant’s contention that these special circumstances describe an indivisible course of conduct, namely, the robbery of Benham. The majority find it appropriate to allow the jury to rely on each crime which is the basis of a special circumstance finding as a separate aggravating factor since “ ‘[ejach of the crimes underlying the felony-murder special circumstances invades a distinct interest which society seeks to protect by defining these acts as crimes.’ ” (Maj. opn., ante, at p. 45, quoting People v. Bean (1988) 46 Cal.3d 919, 955 [760 P.2d 996].)
¶4I disagree with this holding, for the reasons stated in my dissent in People v. Melton (1988) 44 Cal.3d 713, 772 et seq. [244 Cal.Rptr. 867, 750 P.2d 741]. The use of duplicative aggravating factors falsely inflates the aggravating circumstances of the crime and fails to guide the jury adequately. We should adhere to the plurality view in People v. Harris (1984) 36 Cal.3d 36, 65 [201 Cal.Rptr. 782, 679 P.2d 433], that when two crimes giving rise to separate special circumstance findings arise out of an indivisible course of conduct, the two crimes should be considered as a single aggravating circumstance.
¶5I would not reverse the penalty verdict on this basis, since there appears no reasonable possibility that the error in allowing duplicative special circumstances to be used in aggravation affected the verdict. I do dissent from the affirmance of the penalty verdict, however, because of the trial court’s error in ruling on the automatic application for modification of the verdict of death.
¶6Penal Code section 190.4, subdivision (e) provides that in ruling on the automatic application for modification of the verdict, “the judge shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in Section 190.3, and shall make a determination as to whether the jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented.” The court must make an “independent determination whether imposition of the death penalty upon the defendant is proper in light of the relevant evidence and the applicable law.” (People v. Rodriguez (1986) 42 Cal.3d 730, 793 [230 Cal.Rptr. 667, 726 P.2d 113].)
¶7It must be apparent that the court cannot fulfill its obligation to make an independent determination whether the penalty is proper if it does not apply the applicable law correctly. It is established that all evidence regarding defendant’s character or background which he proffers as a basis for *62rejecting the death penalty must be considered, whether or not the evidence extenuates or mitigates the gravity of the charged offenses. (People v. Easley (1983) 34 Cal.3d 858, 875 et seq. [196 Cal.Rptr. 309, 671 P.2d 813].) The record demonstrates that the trial court erroneously limited its consideration of mitigating evidence to the literal terms of Penal Code section 190.3 factor (k), that is, to evidence which actually extenuated the gravity of the crime. As the majority note, the trial court stated that “there are no circumstances which extenuate the gravity of the crime, whether or not such circumstances were a legal excuse. None of the witnesses called on behalf of the defendant could offer any explanation or give any evidence of any conceivable circumstances that the Court finds would extenuate the gravity of this crime.” The court later reiterated: “None of this evidence [of defendant’s troubled youth and mental disorders] would be a moral justification or extenuation of the brutal murder of the victim. . . .” (Maj. opn., ante, at p. 57.)
¶8The majority are confident that the trial court considered all of defendant’s mitigating evidence, but that none of it mitigated the horror of the charged crimes. (Maj. opn., ante, at p. 57.) However, the law requires that the mitigating evidence be considered not only if it mitigates the charged crimes, but also if it provides a basis for a penalty less than death. It is apparent that the trial court failed to consider the proffered mitigating evidence for this purpose. We should not be reluctant to remand to trial courts for the relatively simple matter of reconsidering their rulings on motions to modify the verdict, when they have erred in applying the law. “[W]hen we consider a judge’s ruling on the motion to modify, there is no reason to tolerate any degree of ambiguity. A remand for a new modification hearing, in contrast to a new trial, involves minimal judicial resources and minimal delay. There is no reason to guess as to whether the trial judge considered the mitigating evidence, or whether it would have made a difference if he had considered it. We can send the case back, direct him to consider it, and find out if it makes any difference.” (People v. Hamilton (1988) 46 Cal.3d 123, 160 [249 Cal.Rptr. 320, 756 P.2d 1348] (cone, and dis. opn. of Broussard, J.).)
¶9I would vacate the penalty judgment and remand with directions to the trial court to reconsider the application in light of the applicable law. (See People v. Rodriguez, supra,42 Cal.3d at p.794.)
¶10Appellant’s petition for a rehearing was denied January 9, 1989, and the opinion was modified to read as printed above.