THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ANGEL BACIGALUPO, Defendant and Appellant, 6 Cal. 4th 457

Opinion KENNARD, J. The Eighth Amendment to the United States Constitution, which prohibits the infliction of “cruel and unusual punishments,” imposes various restrictions on the use of the death penalty as a punishment for crime. One such restriction is that any legislative scheme defining criminal conduct for which death is the prescribed penalty must include some narrowing principle that channels jury discretion and provides a principled way to distinguish those cases in which the death penalty is imposed from the many cases in which it is not.

A death-eligibility criterion that fails to meet this standard is deemed impermissibly vague under the Eighth Amendment. (Maynard v. Cartwright (1988) 486 U.S. 356 [100 L.Ed.2d 372, 108 S.Ct. 1853]; Godfrey v.

Georgia (1980) 446 U.S. 420 [64 L.Ed.2d 398, 100 S.Ct. 1759].) California’s death penalty law contains two types of statutory criteria: special circumstances, which define the conduct that renders a defendant eligible for the death penalty; and sentence selection factors, which assist the trier of fact in deciding whether a defendant already found to be eligible for the death penalty should actually be sentenced to death.

The issue we face in this case is whether the Eighth Amendment vagueness standard described above governs the validity of the second of the two types of statutory factors in the California death penalty scheme, those used to determine, not eligibility for the death penalty, but whether a death-eligible defendant shall receive the penalty of death or the alternative penalty of life imprisonment without possibility of parole.

After an extensive review of both the constitutional requirements that the United States Supreme Court has established for the death penalty and the pertinent provisions of our state’s death penalty law, we reach these conclusions: (1) our law’s penalty selection factors, which are not used to determine death eligibility, are not subject to the Eighth Amendment standard used to evaluate death eligibility criteria; and (2) when evaluated against the appropriate standard, the particular penalty selection factors that defendant challenges do not violate the Eighth Amendment.

Consistent with these conclusions, we shall reaffirm the judgment of death. I Our opinion in People v. Bacigalupo (1991) 1 Cal.4th 103 [2 Cal.Rptr.2d 335, 820 P.2d 559] (Bacigalupo

I) contains a detailed

summary of the procedural history and the facts in this case. For present purposes, only the following facts are pertinent. At the guilt phase of defendant’s capital trial, the jury found him guilty of two counts of first degree murder (Pen. Code, §§ 187, 189), and found to be true the special circumstance allegations of robbery-murder and multiple murder. At the subsequent penalty phase, the same jury returned a verdict of death.

On his automatic appeal from the judgment of death (§ 1239, subd. (b)), defendant challenged that portion of the death penalty law requiring a penalty phase jury, for the purpose of choosing between a sentence of life without possibility of parole and a sentence of death, to consider “[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.” (§ 190.3, factor (b) [hereafter also referred to as factor (b)].) Defendant argued that the terms “criminal” and “violence” in factor (

b) are impermissibly vague under the Eighth Amendment because they fail to provide a principled basis for distinguishing between those who deserve the death penalty and those who do not.

We addressed defendant’s contention in Bacigalupo /, supra, 1 Cal.4th 103, 148, pointing out that defendant was urging us to undertake a form of “vagueness” evaluation that the United States Supreme Court had applied “only to statutes that govern ‘those circumstances that make a criminal defendant “eligible” for the death penalty.’ ” We explained that under California’s death penalty scheme, the jury’s determination that a defendant is “eligible” for the death penalty is made during the guilt phase of the trial when the jury finds the existence of one or more of the statutory special circumstances.

The challenged factor (b), by contrast, is used only for the purpose of sentence selection at the penalty phase, when juries in capital cases select from the class of persons found eligible for the death penalty those who will actually be sentenced to death. Accordingly, in Bacigalupo I we declined to undertake the “vagueness” evaluation defendant had urged. (Bacigalupo I, supra, at p. 148.) After our affirmance of the judgment of death in Bacigalupo I, supra, 1 Cal.4th 103, defendant petitioned the United States Supreme Court for a writ of certiorari.

In his petition, defendant argued that the high court’s decision in Stringer v. Black (1992) 503 U.S. _ [117 L.Ed.2d 367, 112 S.Ct. 1130] (issued shortly after Bacigalupo /) “made it very clear” that the Eighth Amendment “vagueness” evaluation applied not only to statutes governing the determination of “death eligibility,” but also to sentencing considerations—such as factor (

b) of

section 190.3 in California’s capital scheme— that play no role in that determination. The United States Supreme Court granted defendant’s petition and remanded the matter to this court for reconsideration in light of Stringer. Upon remand, this court solicited supplemental briefing from the parties and heard oral argument. At oral argument, defense counsel described in some detail how, in his view, the Eighth Amendment “vagueness” evaluation should be applied to the

section 190.3 sentence selection factors. According to counsel, the

section 190.3 factors that could “weigh” in favor of a penalty of death must provide some “narrowing” principle to guide sentencer discretion so as to avoid arbitrariness in the selection and imposition of the death penalty. Further, defense counsel argued, the

section 190.3 factors must be sufficiently objective that a reviewing court can determine why a sentence of death was imposed in a particular case. To understand the concepts underlying defendant’s argument, we must examine the guiding principles of Eighth Amendment jurisprudence as applied by the United States Supreme Court in death penalty cases it decided before Stringer v. Black, supra, 503 U.S. _[117 L.Ed.2d 367, 112 S.Ct. 1130].

II The United States Supreme Court’s capital punishment jurisprudence rests on the principle that “ ‘ “the infliction of a sentence of death under legal systems that permit this unique penalty to be . . . wantonly and . . . freakishly imposed” ’ ” violates the Eighth and Fourteenth Amendments to the federal Constitution. (Lewis v. Jeffers (1990) 497 U.S. 764, 774 [111 L.Ed.2d 606, 618, 110 S.Ct. 3092, 3099]; accord, Arave v.

Creech (1993) _ U.S. _ [123 L.Ed.2d 188, 193, 113 S.Ct. 1534, 1536].) The high court has drawn a distinction between two aspects of capital sentencing: “narrowing” and “selection.” “Narrowing” pertains to a state’s “legislative definition” of the circumstances that place a defendant within the class of persons eligible for the death penalty. (Zant v. Stephens (1983) 462 U.S. 862, 878 [77 L.Ed.2d 235, 250-251, 103 S.Ct. 2733]; Godfrey v.

Georgia, supra, 446 U.S. at p. 428 [64 L.Ed.2d at p. 406].) To comport with the requirements of the Eighth Amendment, the legislative definition of a state’s capital punishment scheme that serves the requisite “narrowing” function must “circumscribe the class of persons eligible for the death penalty.” (Zant v. Stephens, supra, 462 U.S. 862, 878 [77 L.Ed.2d 235, 251].) Additionally, it must afford some objective basis for distinguishing a case in which the death penalty has been imposed from the many cases in which it has not. (Godfrey v.

Georgia, supra, 446 U.S. at p. 433 [64 L.Ed.2d at p. 409].) A legislative definition lacking “some narrowing principle” to limit the class of persons eligible for the death penalty and having no objective basis for appellate review is deemed to be impermissibly vague under the Eighth Amendment. (Maynard v. Cartwright, supra, 486 U.S. at p. 361 [100 L.Ed.2d at p. 380]; Godfrey v. Georgia, supra, 446 U.S. at p. 428 [64 L.Ed.2d at p. 406].) Typically, death penalty statutes satisfy the “narrowing function” in one of two ways. (Lowenfield v.

Phelps (1988) 484 U.S. 231, 246 [98 L.Ed.2d 568, 582, 108 S.Ct. 546].) Some states narrowly define capital offenses so that the jury’s finding of guilt reflects the “narrowing function.” (Ibid, [the requisite narrowing under the Louisiana death penalty statute at issue in Lowenfield was provided by the jury’s guilt verdicts on three counts of murder under the statutory provision that the defendant had “ ‘a specific intent to kill or to inflict great bodily harm upon more than one person.’ ”].) Other states define capital offenses more broadly and provide for narrowing “by jury findings of aggravating circumstances at the penalty phase.” (Ibid, [citing the Georgia capital scheme as providing the required “narrowing” by jury findings at the penalty phase of the existence of one or more alleged “aggravating circumstances”].) Once a capital defendant is determined to be within the narrowed class of death-eligible defendants, the sentencing body must decide whether to impose a sentence of death or of life imprisonment.

Of importance in this penalty selection process “is an individualized determination on the basis of the character of the individual and the circumstances of the crime.” (Zant v. Stephens, supra, 462 U.S. at p. 879 [77 L.Ed.2d at p. 251], original italics.) Thus, consideration by the sentencer of any mitigating aspect of “ ‘the character and record of the individual offender and the circumstances of the particular offense’ ” is “ ‘a constitutionally indispensable part of the process of inflicting the penalty of death.’ ” (Johnson v. Texas (1993)_U.S. _ [125 L.Ed.2d 290, 301, 113 S.Ct. 2658, 2665]; Eddings v.

Oklahoma (1982) 455 U.S. 104 [71 L.Ed.2d 1, 102 S.Ct. 869]; Lockett v. Ohio (1978) 438 U.S. 586 [57 L.Ed.2d 973, 98 S.Ct. 2954].) If a capital defendant comes within “the legislatively defined category of persons eligible for the death penalty,” the sentencer can consider “a myriad of factors” in selecting the appropriate punishment. (California v. Ramos (1983) 463 U.S. 992, 1008 [77 L.Ed.2d 1171, 1185, 103 S.Ct. 3446].) Moreover, the United States Supreme Court has generally deferred to a state’s choice of the substantive factors that are relevant to the penalty determination. (Payne v.

Tennessee (1991) 501 U.S. 808 [115 L.Ed.2d 720, 735, 111 S.Ct. 2597, 2608]; California v. Ramos, supra, 463 U.S. at p. 1001 [77 L.Ed.2d at p. 1180].) Thus, in the penalty selection process of a capital case, the legal entity (jury or judge) that is to decide what penalty to impose may consider evidence of the “general type long considered by sentencing authorities” in other criminal cases, such as victim impact evidence (Payne v. Tennessee, supra, 501 U.S. at p. _ [115 L.Ed.2d at p. 735, 111 S.Ct. at p. 2608]), the defendant’s criminal record (see Barclay v.

Florida (1983) 463 U.S. 939, 956 [77 L.Ed.2d 1134, 1147-1148, 103 S.Ct. 3418]), or other aggravating evidence about the defendant (Zant v. Stephens, supra, 462 U.S. at p. 875 [77 L.Ed.2d at p. 248]). As long as a state’s capital sentencing scheme “narrows the class of death-eligible murderers” and then during sentence selection permits the exercise of discretion and does not limit consideration of evidence in mitigation, the United States Supreme Court has stated that the Eighth Amendment “requires no more.” (Lowenfield v. Phelps, supra, 484 U.S. at p. 246 [98 L.Ed.2d at p. 583]; accord, California v.

Brown (1987) 479 U.S. 538, 541 [93 L.Ed.2d 934, 939-940, 107 S.Ct. 837].) Indeed, the high court found no constitutional defect in a capital sentencing scheme that in the sentence selection process afforded the sentencer “unbridled discretion” in deciding what sentence to impose on a defendant within the narrowed class of persons eligible for the death penalty. (Zant v. Stephens, supra, 462 U.S. at p. 875 [77 L.Ed.2d at p. 248].) The distinction the high court has drawn between the “narrowing” and “selection” aspects of a capital sentencing scheme underlay our conclusion in Bacigalupo I that the

section 190.3 factors of California’s capital penalty statute, which pertain only to sentence selection and play no role in narrowing the class of murderers eligible for the death penalty, were not subject to the Eighth Amendment standard used to evaluate death eligibility criteria. (Bacigalupo I, supra, 1 Cal.4th at p. 148.) To explain why we remain with that conclusion, we now turn to the specific provisions of our 1978 death penalty law.

Ill Under the 1978 California capital scheme involved here, a case for which the Legislature has prescribed the death penalty is tried in separate phases. (§ 190.1.) At the initial phase of the trial, the trier of fact decides the issue of defendant’s guilt or innocence of first degree murder. If the defendant is found guilty, a determination must be made as to the existence of any “special circumstances.” (§§ 190.1, 190.2.) If the trier of fact finds at least one alleged special circumstance to be true, the case proceeds to the “penalty” phase of the trial.

With respect to the role of the special circumstances tried during the guilt phase of the trial, California’s 1978 death penalty statute is essentially identical to California’s 1977 death penalty law the United States Supreme Court upheld in Pulley v.

Harris (1984) 465 U.S. 37 [79 L.Ed.2d 29, 184 S.Ct. 871], in that it “requir[es] the jury to find at least one special circumstance beyond a reasonable doubt,” thereby “limit[ing] the death sentence to a small subclass” of murders. (Id. at p. 53 [79 L.Ed.2d at p. 42].) In California, the special circumstances serve to “ ‘guide’ ” and “ ‘channel’ ” jury discretion “by strictly confining the class of offenders eligible for the death penalty.” (People v. Brown (1985) 40 Cal.3d 512, 539-540 [220 Cal.Rptr. 637, 709 P.2d 440], revd. on other grounds sub nom. California v.

Brown, supra, 479 U.S. 538.) As the criteria in the California capital scheme that define the class of murders for which death is a potential penalty, the special circumstances set forth in

section 190.2 must comport with Eighth Amendment requirements by providing not only clear and objective standards for channeling jury discretion, but also detailed and specific guidance, thus making the process for imposing a death sentence “ ‘rationally reviewable.’” (Godfrey v. Georgia, supra, 446 U.S. at p. 428 [64 L.Ed.2d at p. 406].) Under our death penalty law, therefore, the

section 190.2 “special circumstances” perform the same constitutionally required “narrowing” function as the “aggravating circumstances” or “aggravating factors” that some of the other states use in their capital sentencing statutes. (See Gregg v.

Georgia (1976) 428 U.S. 153, 193, and fn. 44 [49 L.Ed.2d 859, 886, 96 S.Ct. 2909].) In those states that use aggravating factors or aggravating circumstances as criteria to circumscribe the class of murderers eligible for the death penalty, the truth of the allegations of aggravating factors or aggravating circumstances is determined in the second or penalty phase of the trial. (See Ariz. Rev. Stat. Ann. § 13-703 (1993); Fla. Stat. § 921.141(1), (2) & (3) (1992); Ga.

Code Ann. §§ 17-10-2(c), 17-10-30, 17-10-31 (1993).) By contrast, in California the existence of the “special circumstances” that render a defendant charged with capital murder eligible for the death penalty is determined at the first or “guilt” phase of the trial, together with the issue of the defendant’s guilt or innocence of first degree murder. (§ 190.4, subd. (a) [Upon a finding by the trier of fact that the defendant is guilty of first degree murder, “the trier of fact shall also make a special finding on the truth of each alleged special circumstance[,]” which must be proved beyond a reasonable doubt.].) In this respect, California’s capital scheme is unique.

When, under the 1978 California death penalty law at issue here, the trier of fact during the guilt phase of the trial finds at least one special circumstance allegation to be true, the case proceeds to the “penalty” or sentencing phase of the trial. (§ 190.3; see Pulley v. Harris, supra, 465 U.S. at p. 51 [79 L.Ed.2d at pp. 40-41] [discussing this aspect of the 1977 law].) At this stage in the proceedings, “[additional evidence may be offered and the jury is given a list of relevant factors” from

section 190.3 to guide it in deciding whether to impose a sentence of life without the possibility of parole or a sentence of death. (Pulley v. Harris, supra, 465 U.S. at p. 51 [79 L.Ed.2d at p. 41].) The sole purpose of the penalty phase is to select the punishment for a defendant who has been found to be within the narrowed class of murderers for whom death would be an appropriate penalty. (People v.

Brown, supra, 40 Cal.3d at pp. 539-540.) As we explained in Brown: “ ‘[W]hat is important [at the penalty phase] ... is an individualized determination on the basis of the character of the individual and the circumstances of the crime.’ (Zant [v. Stephens], supra, 462 U.S. at p. 879 [77 L.Ed.2d at p. 251].) . . . It is not simply a finding of facts which resolves the penalty decision, ' “but. . . the jury’s moral assessment of those facts as they reflect on whether [the] defendant should be put to death . . . ” (People v. Brown, supra, 40 Cal.3d at p. 540, italics in original.)

Section 190.3 of California’s capital scheme lists the various factors that the sentencer is “to consider, take into account and be guided by” in deciding penalty. With the exception of

section 190.3’s factor (k), which invites consideration of any “circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime," the statute does not explicitly designate any of the factors as exclusively aggravating or exclusively mitigating. (People v. Davenport (1985) 41 Cal.3d 247, 289 [221 Cal.Rptr. 794, 710 P.2d 861].) It simply directs the trier of fact to aspects of the offense and the defendant’s background that are relevant to the penalty determination. For instance, factor (

a) of

section 190.3 directs the sentencing body to consider “[t]he circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstance found to be true . . . .” Factor (

b) invites consideration of “[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.” Under factor (c), the sentencer can consider whether or not the defendant has suffered a prior conviction for a felony offense. And factors (

d) through (

j) refer to aspects of the circumstances of the capital offense that bear on a defendant’s moral culpability in committing the offense, and that might in a particular case assist in the individualized determination of penalty. With respect to the sentencing body’s consideration of evidence relevant to the sentencing factors set forth in

section 190.3, the statute further provides that if “the aggravating circumstances outweigh the mitigating circumstances,” the trier of fact “shall impose a sentence of death.” This “weighing” is a process that by nature “is incapable of precise description.” (People v.

Brown, supra, 40 Cal.3d at p. 541.) The “weighing” of aggravating against mitigating circumstances is “a mental balancing process,” but not one that involves a “mechanical counting of factors” on either side of some imaginary scale, or “the arbitrary assignment of ‘weights’ ” to any factor. (Ibid.) Rather, under our 1978 death penalty law, a juror faced with making the requisite “individualized” determination whether a defendant should be sentenced to life without parole or to death is entirely free to assign whatever moral or sympathetic value that juror deems appropriate to “each and all” of the relevant factors. (Ibid.) Moreover, in directing “that the jury ‘shall’ impose the death penalty if it finds that aggravating factors ‘outweigh’ mitigating,” California’s 1978 death penalty law does not require “any juror to vote for the death penalty unless . . . [that juror is convinced] that death is the appropriate penalty under all the circumstances." (Ibid.) Thus, under California’s 1978 death penalty scheme, the task that the jury performs at the penalty phase of the trial is “essentially normative." (People v.

Edelbacher (1989) 47 Cal.3d 983, 1037 [254 Cal.Rptr. 586, 766 P.2d 1].) Representing the community at large, the jury applies “its own moral standards to the aggravating and mitigating evidence presented” and has the “ultimate responsibility for determining if death is the appropriate penalty for the particular offense and offender.” (Ibid.) The aspect of the 1978 death penalty law at issue in Bacigalupo I was defendant’s challenge to factor (

b) of

section 190.3. At that time, defendant argued that the terms “criminal” and “violence” as used in factor-(

b) were unconstitutionally vague under the Eighth Amendment. We declined to evaluate factor (

b) for Eighth Amendment “vagueness” because we concluded that such an evaluation in the decisions of the United States Supreme Court had been applied exclusively to the “narrowing" aspect of a state’s capital punishment scheme. (Bacigalupo I, supra, 1 Cal.4th at p. 148.) Before reviewing that conclusion here in light of the high court’s recent decision in Stringer v. Black, supra, 503 U.S__[117 L.Ed.2d 367, 112 S.Ct. 1130], we turn briefly to Zant v.

Stephens, supra, 462 U.S. 862, the case in which the high court first posed the issue it revisited in Stringer: whether, in a state that requires the sentencer in a capital case to weigh aggravating factors against mitigating factors, the consideration of a “vague” aggravating factor in the weighing process violates the Eighth Amendment. IV At issue in Zant v.

Stephens, supra, 462 U.S. 862, was whether an “aggravating circumstance” that served the requisite “narrowing function” in the State of Georgia’s capital sentencing scheme, but failed to define the class of death-eligible murderers with sufficient precision to satisfy the Eighth Amendment, might adversely affect the sentence selection process.

The impermissibly vague statutory aggravating circumstance in Zant —whether the offense of murder was committed by a person with “a substantial history of serious assaultive criminal convictions”—was one of three aggravating-circumstance allegations that the jury found to be true. (462 U.S. at pp. 866-867 [77 L.Ed.2d at p. 243].) Because the other two aggravating circumstances satisfied Eighth Amendment requirements, they provided the necessary “narrowing” to differentiate the defendant’s case “in an objective, evenhanded, and substantively rational way from the many Georgia murder cases in which the death penalty may not be imposed.” (462 U.S. at p. 879 [77 L.Ed.2d at p. 251].) Therefore, the United States Supreme Court concluded, the defendant’s eligibility for the death penalty was not premised on a constitutionally invalid aggravating circumstance. (Ibid.) The high court in Zant then considered whether the jury’s earlier finding of the existence of the aggravating circumstance that the defendant had “a substantial history of serious assaultive criminal convictions” might have “infected” the jury’s sentence choice because the jury was aware of that finding during the “selection” process.

The court concluded that the vague aggravating circumstance did not infect the sentence selection process because under Georgia’s capital scheme a jury’s “finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion, apart from its function of narrowing the class of persons convicted of murder who are eligible for the death penalty.” (Zant v.

Stephens, supra, 462 U.S. at p. 874 [77 L.Ed.2d at p. 248].) But the high court declined to express any view on the possible significance of the sentencer’s consideration in the selection of sentence of a “vague” aggravating circumstance “under a statutory scheme in which the judge or jury is specifically instructed to weigh statutory aggravating and mitigating circumstances” in deciding whether to impose the death penalty. (Id. at p. 890 [77 L.Ed.2d at p. 258], italics added.) Nine years later, in 1992, the high court resolved this issue in Stringer v.

Black, supra, 503 U.S__[117 L.Ed.2d 367, 112 S.Ct. 1130], which we review below. V Stringer v. Black, supra, 503 U.S. _ [117 L.Ed.2d 367, 112 S.Ct. 1130], was before the high court on certiorari from the Fifth Circuit Court of Appeals denial of habeas corpus relief to defendant Stringer, who was under a Mississippi death judgment.

At Stringer’s trial in state court, the jury had found him guilty of capital murder, and at the sentencing phase found the existence of three alleged statutory aggravating factors, one of which was that the crime was “especially heinous, atrocious or cruel.” After weighing those three factors in aggravation against the mitigating evidence, the jury returned a verdict of death. The Mississippi Supreme Court affirmed the death judgment, and Stringer exhausted his direct appeal rights in 1985 when the United States Supreme Court denied his petition for certiorari. (Stringer v.

Mississippi (1985) 469 U.S. 1230 [84 L.Ed.2d 368, 105 S.Ct. 1231].) Stringer then sought habeas corpus relief from the federal courts. He relied on two decisions of the United States Supreme Court—Maynard v. Cartwright, supra, 486 U.S. 356, and Clemons v. Mississippi (1990) 494 U.S. 738 [108 L.Ed.2d 725, 110 S.Ct. 1441]—both of which had been decided after Stringer had exhausted his right of direct appeal.

In Maynard, the United States Supreme Court held that the “especially heinous, atrocious or cruel” aggravating factor used in Oklahoma’s capital scheme was impermissibly vague under the Eighth Amendment because it lacked any “narrowing” principle that would provide an objective basis for a reviewing court to distinguish a case in which the death penalty was imposed from the many cases in which it was not. (Maynard, supra, at pp. 363-364 [100 L.Ed.2d at pp. 381-382].) Thereafter, in Clemons, the high court reviewed a decision of the Mississippi Supreme Court that, applying Maynard, had struck down Mississippi’s “especially heinous, atrocious or cruel” aggravating factor for being unconstitutionally vague. (Clemons, supra, 494 U.S. 738.) In its argument to the United States Supreme Court, the State of Mississippi argued in Stringer that because Maynard and Clemons were decided after Stringer had exhausted his appeal rights, he was procedurally barred from relying on either case under Teague v.

Lane (1989) 489 U.S. 288 [103 L.Ed.2d 334, 109 S.Ct. 1060]. Teague precludes a petitioner who seeks habeas corpus relief in federal court from gaining the benefit of a new decisional rule announced after the petitioner’s exhaustion of all direct appeal rights. In rejecting Mississippi’s argument, the high court held that with respect to the Mississippi capital punishment scheme, neither Maynard v. Cartwright, supra, 486 U.S. 356, nor Clemons v.

Mississippi, supra, 494 U.S. 738, had announced a new rule, and therefore Stringer was not' foreclosed under Teague from relying on the authority of those cases in his federal habeas corpus proceeding. (Stringer v. Black, supra, 503 U.S. at p— [117 L.Ed.2d at pp. 376-378, 112 S.Ct. at pp. 1135-1136].) In the course of explaining why Clemons was not a new rule under Teague v. Lane, supra, 489 U.S. 288, the court highlighted the differences between the Georgia death penalty statute at issue in Godfrey v. Georgia, supra, 446 U.S. 420, and the Mississippi statutory scheme at issue in Clemons.

The court observed, however, that to the extent the differences between the two schemes were “significant,” they suggested “that application of the Godfrey principle to the Mississippi sentencing process follows, a fortiori, from its application to the Georgia system.” (Stringer v. Black, supra, 503 U.S. at p. _ [117 L.Ed.2d at p. 378, 112 S.Ct. at p. 1136].) In describing the principal distinction between the Georgia and Mississippi capital punishment schemes, the high court in Stringer observed: “Mississippi is what we have termed ‘a weighing State,’ while Georgia is not.” (Stringer v.

Black, supra, 503 U.S. at p__[117 L.Ed.2d at p. 378, 112 S.Ct. at p. 1136].) In Georgia, a capital jury “must find the existence of one aggravating factor before imposing the death penalty, but aggravating factors as such have no specific function in the jury’s [sentencing] decision whether a defendant who has been found to be eligible for the death penalty should receive it under all the circumstances of the case.” (Id. at p__[117 L.Ed.2d at p. 378, 112 S.Ct. at p. 1136].) In contrast, the Stringer court explained, “[u]nder Mississippi law, after a jury has found a defendant guilty of capital murder and found the existence of at least one statutory aggravating factor, it must weigh the aggravating factor or factors against the mitigating evidence” before imposing penalty. (Ibid.) The Stringer court then turned to the question it left unresolved in Zant v.

Stephens, supra, 462 U.S. 862: whether in a “weighing state” a jury’s consideration of an impermissibly vague aggravating circumstance could adversely affect the sentence selection process. The court explained: “In a nonweighing State, so long as the sentencing body finds at least one valid aggravating factor, the fact that it also finds an invalid aggravating factor does not infect the formal process of deciding whether death is an appropriate penalty.

Assuming a determination by the state appellate court that the invalid factor would not have made a difference to the jury’s determination, there is no constitutional violation resulting from the introduction of the invalid factor in [the narrowing] stage of the proceedings. But when the sentencing body is told to weigh an invalid factor in its [sentence selection] decision, a reviewing court may not assume it would have made no difference if the thumb had been removed from death’s side of the scale.” (Stringer v.

Black, supra, 503 U.S. at p__[117 L.Ed.2d at p. 379, 112 S.Ct. at p. 1137].) The high court explained that a state that uses aggravating factors “in deciding who shall be eligible for the death penalty or who shall receive the death penalty” cannot employ such factors which “fail to guide the sentencer’s discretion.” (Id. at p__[117 L.Ed.2d at p. 381, 112 S.Ct. at p. 1139.) The court added: “A vague aggravating factor employed for the purpose of determining whether a defendant is eligible for the death penalty fails to channel the sentencer’s discretion.

A vague aggravating factor used in the weighing process is in a sense worse, for it creates the risk that the jury will treat the defendant as more deserving of the death penalty than he might otherwise be by relying upon the existence of an illusory circumstance.” (Id. at p. _ [117 L.Ed.2d at p. 382, 112 S.Ct. at p. 1139].) Under the Mississippi capital scheme, when the sentencer considers an aggravating factor that does not comport with the requirements of Godfrey v. Georgia, supra, 446 U.S. 420 and Maynard v.

Cartwright, supra, 486 U.S. 356, weighing that “vague” or “imprecise” aggravating factor against mitigating evidence during the selection of sentence injects into the constitutionally required “individualized” sentencing process the possibility of “randomness” and “bias in favor of the death penalty.” (Stringer v. Black, supra, 503 U.S. at pp. _ [117 L.Ed.2d at pp. 379, 382, 112 S.Ct. at pp. 1137, 1139].) Thus, in Stringer v. Black, supra, 503 U.S__[117 L.Ed.2d 367, 112 S.Ct. 1130], the United States Supreme Court resolved the issue it left undecided in Zant v.

Stephens, supra, 462 U.S. 862, 890 [77 L.Ed.2d 235, 258], by explaining the effect on a death judgment in a “weighing state” when the sentencer “weighs” a “vague” aggravating factor against mitigating evidence during the sentence selection process.

In a state such as Mississippi whose death penalty law provides for the sentencer to weigh those aggravating factors found to exist against the mitigating evidence, the infection of the sentence selection process with an unconstitutionally vague aggravating factor requires a reviewing court to either “reweigh the aggravating and mitigating circumstances [without consideration of the imprecise factor] or undertake harmless-error analysis.” (Stringer v.

Black, supra, 503 U.S. at p. _ [117 L.Ed.2d at p. 378, 112 S.Ct. at p. 1136].) We must now determine whether Stringer’s explanation of the effect on a Mississippi death judgment of a “vague” aggravating factor weighed during sentence selection supports defendant’s contention here that the sentencing factors in

section 190.3 of California’s capital scheme are subject to the “vagueness” analysis of Godfrey v. Georgia, supra, 446 U.S. 420 and Maynard v. Cartwright, supra, 486 U.S. 356. We conclude that it does not, as we shall explain. VI Defendant reads the United States Supreme Court’s decision in Stringer v.

Black, supra, 503 U.S. _ [117 L.Ed.2d 367, 112 S.Ct. 1130], to mean that any state that permits a jury to select a sentence of death by a process that includes a weighing of statutory “aggravating factors” must include in the definition of each aggravating factor a narrowing principle that channels jury discretion and enables a reviewing court to objectively determine whether the facts of the particular case meet that definition.

Defendant maintains that California’s capital scheme is subject to this standard because the jury during the penalty phase of a California capital trial determines the appropriate penalty by “weighing” the aggravating and mitigating circumstances specified in

section 190.3. We are unpersuaded by this argument. The standard that defendant would have us employ to evaluate the

section 190.3 sentencing factors—whether they are statutorily defined narrowly and precisely enough to channel jury discretion and to enable a reviewing court to objectively determine whether the facts of each case fall inside or outside the definition—is the standard that the United States Supreme Court has mandated for the evaluation of laws that circumscribe the class of death-eligible defendants.

Were we to accept defendant’s argument, factors that our state law uses only in penalty selection, to determine whether death or the alternative penalty of life without possibility of parole is the more appropriate sentence, would have to be specific and narrow enough for determining death eligibility, that is, defining the criminal conduct punishable either by death or by life without possibility of parole.

This merging of death-eligibility and penalty-selection criteria cannot be reconciled with the distinction the United States Supreme Court has consistently drawn between the “narrowing" and “selection” aspects of capital sentencing. The “narrowing” aspect of a state’s death penalty law that defines the conduct that brings a defendant within the class of persons subject to the death penalty must, to comport with the Eighth Amendment, include “some narrowing principle” so as to limit the members of that class. (Godfrey v. Georgia, supra, 446 U.S. 420, 428 [64 L.Ed.2d 398, 406]; Maynard v.

Cartwright, supra, 486 U.S. 356, 361 [100 L.Ed.2d 372, 380].) But, when a capital punishment statute adequately narrows the class of death-eligible murderers, the Eighth Amendment does not require a further round of “narrowing” at the sentence selection stage. Likewise, a statutory provision that defines death eligibility, that is, the criminal conduct for which death is a potential penalty, comports with the Eighth Amendment only if it offers a reviewing court an objective basis to distinguish the case under review from the many cases in which the death penalty was not imposed. (Godfrey v.

Georgia, supra, 446 U.S. at p. 433 [64 L.Ed.2d at p. 409].) But the Eighth Amendment places no such restraint on the sentence selection process, when the sentencing body must decide whether a defendant already found eligible for the death penalty should actually be sentenced to death. The Georgia capital scheme illustrates this point: in granting the jury “unbridled discretion" in its sentence selection decision, the Georgia capital punishment scheme that the high court upheld in Zant v.

Stephens, supra, 462 U.S. 862, provided no basis whatsoever for a reviewing court to discern the factors that influenced that decision. Nor does the high court’s recent decision in Stringer v. Black, supra, 503 U.S. _[117 L.Ed.2d 367, 112 S.Ct. 1130], alter our conclusion that the Eighth Amendment standard set forth in Godfrey v. Georgia, supra, 446 U.S. 420, 428 [64 L.Ed.2d 398, 406], and Maynard v. Cartwright, supra, 486 U.S. 356, 361 [100 L.Ed.2d 372, 380], does not apply to California’s

section 190.3 sentencing factors. Although Stringer involved an aggravating factor in the Mississippi capital scheme that the Mississippi Supreme Court had determined to be unconstitutionally vague under Godfrey v. Georgia and Maynard v. Cartwright, the United States Supreme Court’s decision in Stringer does not hold that aggravating factors used only for sentence selection are subject to that same Eighth Amendment standard.

Rather, the focus of the high court’s opinion in Stringer was on the effect of a “vague” aggravating factor when a sentencing jury “weighs” such a factor against mitigating evidence during the sentence selection process. As the court explained, the weighing of aggravating factors in the jury’s sentencing decision allows an impermissibly vague aggravating factor to infect the sentence selection process, thereby injecting into the individualized sentencing determination the possibility of “randomness” as well as “bias in favor of the death penalty.” (Stringer v.

Black, supra, 503 U.S—, [117 L.Ed.2d at p. 382, 112 S.Ct. at p. 1139].) Stringer is silent, however, on the Eighth Amendment requirements for aggravating factors such as those set out in

section 190.3 of California’s capital scheme. It would be inconsistent with the purpose and function of the

section 190.3 sentencing factors to require those factors to satisfy the Eighth Amendment requirements of Godfrey v. Georgia, supra, 446 U.S. 420, and Maynard v. Cartwright, supra, 486 U.S. 356. The

section 190.3 factors of our death penalty law “direct the sentencer’s attention to specific, provable, and commonly understandable facts about the defendant and the capital crime that might bear on [the defendant’s] moral culpability.” (People v. Tuilaepa (1992) 4 Cal.4th 569, 595 [15 Cal.Rptr.2d 382, 842 P.2d 1142], cert, granted Dec. 6, 1993, _ U.S. _ (Dock. No. 93-5131) [126 L.Ed.2d 563, 114 S.Ct. 598].) The “ ‘facts and circumstances of the defendant, his background, and his crime’ ” are most relevant to the sentencing decision in a death penalty case. (Id. at p. 594, quoting Clemons v.

Mississippi, supra, 494 U.S. 738, 748 [108 L.Ed.2d 725, 739].) As we observed in Tuilaepa: “[T]he state, within certain limits, has broad latitude to decide how such facts are to be presented and considered at the penalty phase (Payne v. Tennessee (1991) 501 U.S. [115 L.Ed.2d 720, 735, 111 S.Ct. 2597]; Boyde v. California (1990) 494 U.S. 370, 377 [108 L.Ed.2d 316, 326, 110 S.Ct. 1190]).

By the same token, the individualized penalty determination required by the Eighth Amendment makes inevitable application of the sentencer’s own values, perceptions, and experiences to the factors the state properly deems relevant. (Eddings v. Oklahoma [supra,] 455 U.S. 104, 110-112 [71 L.Ed.2d 1, 8-9, 102 S.Ct. 869].)” (People v.

Tuilaepa, supra, 4 Cal.4th at p. 594.) Any meaningful assessment of the moral culpability of a defendant convicted of the crime of capital murder will invariably include some facts about the offense and the offender that will weigh in the sentencing decision in favor of the more severe penalty of death. The

section 190.3 “aggravating” factors in California’s capital scheme do no more than direct attention to such facts. Because they do not perform a “narrowing” function, they are not subject to the standard that the United States Supreme Court articulated in Godfrey v. Georgia, supra, 446 U.S. 420, and in Maynard v. Cartwright, supra, 486 U.S. 356. We do not, however, suggest that the Eighth Amendment imposes no standards whatsoever on those sentencing factors in

section 190.3 of our 1978 death penalty law that can serve to aggravate penalty. As we explained in People v. Tuilaepa, supra, 4 Cal.4th at page 595, these factors must meet the dual standards of “specificity” and of “relevance.” They must be défined in terms sufficiently clear and specific that jurors can understand their meaning, and they must direct the sentencer to evidence relevant to and appropriate for the penalty determination.

To meet these dual criteria, sentencing factors should not inject into the individualized sentencing determination the possibility of “randomness” or “bias in favor of the death penalty.” (Stringer v.

Black, supra, 503 U.S._, _[117 L.Ed.2d at p. 382, 112 S.Ct. 1130 at p. 1139].) Inappropriate for consideration in the sentence selection process would be any aggravating factor that was either “seriously and prejudicially misleading,” or that invited “the jury to be influenced by a speculative or improper consideration ],” such as the race or political beliefs of the defendant that are without any bearing on moral culpability. (People v. Ramos (1984) 37 Cal.3d 136, 153 [207 Cal.Rptr. 800, 689 P.2d 430]; Dawson v.

Delaware (1992)_U.S. _ [117 L.Ed.2d 309, 112 S.Ct. 1093].) Against these dual standards of specificity and relevance, we now consider defendant’s challenges in this case to the

section 190.3 sentencing factors. VII Defendant here renews the contention he raised in Bacigalupo I to factor (

b) of

section 190.3 in California’s capital scheme. Factor (

b) permits the sentencer at the penalty phase of a capital case to take into account “[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence ....’’ (Italics added.) Defendant argues that the italicized terms are “unconstitutionally ‘vague’ ” because they fail to focus the jury’s attention on specific aggravating conduct that would permit “ ‘a principled distinction between those who deserve the death penalty and those who do not.’ ” (Bacigalupo I, supra, 1 Cal.4th at pp. 147-148.) But, as we explained previously, the Eighth Amendment standard of precision that defendant invokes does not govern statutory factors such as factor (

b) that a California penalty phase jury considers in the sentence selection process. Such factors violate the Eighth Amendment only if they are insufficiently specific or if they direct the sentencer to facts not relevant to the penalty evaluation. (People v. Tuilaepa, supra, 4 Cal.4th 569, 595.) As mentioned earlier, factor (

b) of

section 190.3, in accord with its function in the sentence selection process, directs the penalty phase jury “to specific, provable, and commonly understandable facts about the defendant and the capital crime that might bear on [the defendant’s] moral culpability.” (People v. Tuilaepa, supra, 4 Cal.4th at p. 595.) Moreover, evidence of a defendant’s criminal conduct, especially when such conduct involves acts of violence directed at another person, is of the “general type long considered by sentencing authorities,” and is particularly relevant to the penalty decision. (Payne v.

Tennessee, supra, 501 U.S. at p._[115 L.Ed.2d at p. 735, 111 S.Ct. at p. 2608]; see Barclay v. Florida, supra, 463 U.S. at p. 956 [77 L.Ed.2d at pp. 1147-1148] [describing a capital defendant’s criminal record as appropriate for sentencer consideration in deciding penalty].) In our view, the United States Supreme Court’s capital jurisprudence requires no more. Turning to factor (

a) of

section 190.3, defendant contends that because it contains no “narrowing principle” and provides no objective basis for appellate review of a death judgment, it is impermissibly vague under the Eighth Amendment. We disagree. Factor (

a) uses clearly understandable terms to designate for jury consideration in sentence selection, “[t]he circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true . . . (§ 190.3, factor (a).) In any criminal case the circumstances of the crime of which the defendant stands convicted are the single most pertinent sentencing consideration. Indeed, by directing the sentencer to consider the circumstances of the capital crime, factor (

a) of

section 190.3 embodies a consideration that the United States Supreme Court has identified as “ ‘a constitutionally indispensable part of the process of inflicting the penalty of death.’ ” (Johnson v. Texas, supra,_ U.S. _ [125 L.Ed.2d 290, 301, 113 S.Ct. 2658, 2665]; People v. Tuilaepa, supra, 4 Cal.4th at p. 594; People v.

Proctor (1993) 4 Cal.4th 499, 551 [15 Cal.Rptr.2d 340, 842 P.2d 1100].) Therefore, when a California jury considers the circumstances of a defendant’s capital crimes for the purpose of making an individualized determination whether life without possibility of parole or death is the appropriate penalty for a defendant already determined to be within the narrowed class of death-eligible murderers, there can be no violation of the Eighth Amendment prohibition against cruel and unusual punishments. Conclusion We affirm the judgment in its entirety. Lucas, C. J., Arabian, J., Baxter, J., and George, J., concurred.

Unless otherwise indicated, further statutory references are to the Penal Code. Califomia’s death penalty law defines the special circumstance of robbery-murder as follows: “The murder was committed while the defendant was engaged in or was an accomplice in the commission of, attempted commission of, or the immediate flight after committing or attempting to commit the following felon[y]: [¶] (

i) Robbery in violation of

Section 211 ... .” (§ 190.2, subd. (a)(17)(i).) The special circumstance of multiple murder is defined this way: “The defendant has in this proceeding been convicted of more than one offense of murder in the first or second degree.” (§ 190.2, subd. (a)(3).) Factors (

d) through (

j) of

section 190.3 direct the sentencer’s attention to the following aspects of the circumstances of the capital crime: (

d) whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance; (

e) whether or not the victim was a participant in the defendant’s homicidal conduct or consented to the homicidal act; (

f) whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his or her conduct; (

g) whether or not defendant acted under extreme duress or under the substantial domination of another person; (

h) whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of the law was impaired as a result of mental disease or defect, or the effects of intoxication; (

i) the age of the defendant at the time of the crime; and (

j) whether or not the defendant was an accomplice to the offense and his or her participation in the commission of the offense was relatively minor. Justice Mosk’s concurring and dissenting opinion is in apparent accord with this conclusion. The opinion highlights the passage in Stringer v. Black, supra, 503 U.S. at p._[117 L.Ed.2d at pp. 381-382, 112 S.Ct. at p. 1139] explaining that a state cannot use aggravating factors in its capital punishment scheme that “fail to guide the sentencer’s discretion.” It then concludes that this “[c]onsequently” means that California’s

section 190.3 aggravating factors must be “clearly defined.” (Conc. and dis. opn., post, at p. 487.) Nowhere does the concurring and dissenting opinion suggest that aggravating factors used only in sentence selection must, as defendant contends, provide some “narrowing” principle and be sufficiently objective that a reviewing court can determine why the death penalty was imposed.