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BROWN v. SANDERS Opinion of the Court

lupo, 6 Cal. 4th 457, 467–468, 862 P. 2d 808, 813 (1993) (in bank). If the jury ﬁnds the existence of one of the special circumstances, it is instructed to “take into account” a sepa­ rate list of sentencing factors describing aspects of the de­ fendant and the crime. Cal. Penal Code Ann. § 190.3 (West 1999). These sentencing factors include, as we have said, “[t]he circumstances of the crime of which the defendant was convicted in the present proceeding.” The Court of Appeals held that California is a weighing State because “ ‘the sentencer [is] restricted to a “weighing” of aggravation against mitigation’ and ‘the sentencer [is] pre­ vented from considering evidence in aggravation other than discrete, statutorily-deﬁned factors.’ ” 373 F. 3d, at 1061 (quoting Williams v. Calderon, 52 F. 3d 1465, 1478 (CA9 1995); brackets in original). The last statement is inaccu­ rate. The “circumstances of the crime” factor can hardly be called “discrete.” It has the effect of rendering all the speci­ ﬁed factors nonexclusive, thus causing California to be (in our prior terminology) a non-weighing State. Contrary to Sanders’ contention, and Justice Stevens’ views in dissent, the mere fact that the sentencing factors included “the exist­ ence of any special circumstances [eligibility factors] found to be true,” Cal. Penal Code Ann. § 190.3(a), did not make California a weighing State. That fact was redundant for purposes of our weighing jurisprudence because it in no way narrowed the universe of aggravating facts the jury was entitled to consider in determining a sentence.8 But leaving 8

Justice Stevens argues that § 190.3(a) may have affected the jury’s deliberations in other ways, but we rejected each of these theories in Zant v. Stephens, 462 U. S. 862 (1983). The possibility that the jury would “coun[t] the nature of the crime twice,” post, at 226 (Stevens, J., dissent­ ing), if it were instructed to consider both the facts of the crime and the eligibility circumstances was present in Zant. The jury there was told it could take into account all relevant circumstances, but also—much like the jury here—was instructed to consider “ ‘any of [the] statutory aggravating circumstances [i. e., eligibility factors] which you ﬁnd are supported by the evidence.’ ” 462 U. S., at 866. Likewise, the jury in Zant might have