While the law contains provisionsto limit the class of offenders eligible for the death penalty and to allow for individualized sentencing determinations by juries, see Cal. Penal Code §§ 190.2, 190.3, it does not contain any standardsto guide a prosecutor’s decision as to whether or not to seek the death penalty. Cal. Penal Code § 780 190.2 defines special circumstances which narrows the class of alleged murderers whoare potentially subject to the death penalty, but §190.3 does not indicate how local prosecutors are to distinguish amongthe class ofdefendants charged with murder to determine whoshould face a possible death sentence and who should not. Furthermore, the universe of cases that may be pursued as capital crimes in California is particularly broad because California defines felony murder simpliciter as being death-eligible.

These errors are each prejudicial and mandate reversal individually and cumulatively. As to all the unconstitutionally vague provisions of section 190.3 (manifestedin large part in CALJIC No.8.84.1), reversal is automatic, because the use of a vague aggravating factor in the weighing process created randomness anda bias in favor of execution. (Stringer v. Black, supra, 503 USS. 222.)

609 In Argument XXV,ante, appellant explained whythe failure to provide intercase proportionality review violated his right to equal protection under the Fourteenth Amendment. He reasserts that argument here with regard to the denial of other safeguards such the requirement of written jury findings, unanimous agreementon violent criminal acts under Penal Code.section 190.3, subdivision (b) and on other particular aggravating factors, and the disparate treatment of capital defendantsas set forth in this argument. The procedural protections outlined in these arguments but denied capital defendants are especially importantin insuring the needfor reliable and accurate factfinding in death sentencingtrials.

" (Lockett v. Ohio, supra, 438 U.S at p. 605; see also Penry v. Lynaugh, supra, 492 U.S. at p. 323 ljury must be able to give a reasoned moral response to defendant's mitigating evidence].) This Court has assumed that Penal Code section 190.3 and CALJIC No. 8.85 allow meaningful consideration of all mental states because jurors will somehow understand that factor (k) permits consideration of a defendant's less-than-extreme mental or emotional disturbance as mitigating evidence.

The California Legislature has provided that evidence of a defendant’s act which involved the use or attempted use of force or violence can be presented duringthe penalty phase. (Pen. Code, § 190.3, subd.(b).) Before the factfinder may consider such evidence,it must find that the state has proven the act beyond a reasonable doubt.

The importance of written findingsis recognized throughoutthis country; post-F'urmanstate capital sentencing systems commonly require them. Further, written findings are essential to ensure that a defendant subjected to a capital penalty trial under Section 190.3 is afforded the protections guaranteed by the Sixth Amendmentrighttotrial by jury. There are no other procedural protections in California’s death *'(...continued) with the decision of whether or not to impose the death penalty.

(People v. Kraft, supra, 23 Ca1.4th at pp. 1078-1079, 99 Cal.Rptr.2d 1, 5 P.3d 68; see People v. Memro (1995) 11 Ca1.4th 786, 886-887, 47 Cal.Rptr.2d 219, 905 P.2d 1305.) Indeed, "no reasonable juror could be misled by the language of section 190.3 concerning the relative aggravating or mitigating nature of the various factors." (People v. Arias, supra, 13 Ca1.4th at p. 188, 51 Cal.Rptr.2d 770, 913 P.2d 980.) (People v. Morrison (2004) 34 Ca1.4th 698, 730; emphasis added.)

88 does not address this 240 proposition, but only infonns the jury of the circumstances that pennit the rendition of a death verdict. By failing to confonn to the mandate of Penal Code section 190.3, the instruction violated Mr. Rountree's right to due process oflaw. (See Hicks v. Oklahoma, supra, 447 U.S. at p. 346.)

In Brown, the Court construed Penal Code section 190.3’s sentencing directive as comparable to that of Florida — if the sentencer finds the aggravating circumstances outweigh the mitigating circumstances, it is authorized, but not mandated,to impose death. The standard jury instructions were modified, first in CALJIC No. 8.84.2 and later in CALJIC No. 8.88, to reflect Brown’s interpretation of section 190.3. The requirementthat the jury mustfind that the aggravating circumstances outweigh the mitigating circumstances remained a ® CALJIC No.8.84.2 (4th ed. 1986 revision) provided: In weighing the various circumstances you simply determine under the relevant evidence which penaltyis justified and appropriate by considering the totality of the aggravating circumstances with the totality of the mitigating circumstances.

Thus, the judgment and sentence should beaffirmed. A. The Application of Section 190.3, Factor (a) Is Constitutional Appellant claimsthat factor (a) of section 190.3, which directs jurors to consider the “circumstances of the crime” in determining penalty, “has been applied in such a wanton and freakish manner[that] almostall features of murder can be and have been characterized by prosecutors as ‘agegravating.’” (AOB 137.)