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[08-22-08 15:50:12] PAGES PGT: OPIN

Cite as: 546 U. S. 212 (2006)

223

Opinion of the Court

aside the weighing/non-weighing dichotomy and proceeding to the more direct analysis set forth earlier in this opinion: All of the aggravating facts and circumstances that the inval­ idated factor permitted the jury to consider were also open to their proper consideration under one of the other factors. The erroneous factor could not have “skewed” the sentence, and no constitutional violation occurred. More speciﬁcally, Sanders’ jury found four special circum­ stances to be true: that “[t]he murder was committed while the defendant was engaged in. . . Robbery,” § 190.2(a)(17)(A) (West Supp. 2005); that it was “committed while the defend­ ant was engaged in. . . Burglary in the ﬁrst or second de­ gree,” § 190.2(a)(17)(G); that “[t]he victim [Allen] was a wit­ ness to a crime who was intentionally killed for the purpose of preventing. . . her testimony in any criminal. . . proceed­ ing,” § 190.2(a)(10); and that “[t]he murder was especially heinous, atrocious, or cruel,” § 190.2(a)(14). The California Supreme Court set aside the burglary-murder special circumstance under state merger law because the instruc­ tions permitted the jury to ﬁnd a burglary (and thus the burglary-murder special circumstance) based on Sanders’ in­ tent to commit assault, which is already an element of homi­ cide, see People v. Wilson, 1 Cal. 3d 431, 439–440, 462 P. 2d 22, 27–28 (1969) (in banc). 51 Cal. 3d, at 517, 797 P. 2d, at 587. The court invalidated the “heinous, atrocious, or cruel” special circumstance because it had previously found that to be unconstitutionally vague. Id., at 520, 797 P. 2d, at 589 (citing People v. Superior Court, 31 Cal. 3d 797, 647 P. 2d 76 (1982) (in bank)). As the California Supreme Court noted, however, “the jury properly considered two special circumstances [eligibil­ ity factors] (robbery-murder and witness-killing).” 51 Cal. “give[n] greater weight,” post, at 226 (Stevens, J., dissenting), to the facts underlying the eligibility circumstances, but we explicitly held that any such effect “cannot fairly be regarded as a constitutional defect in the sentencing process,” 462 U. S., at 889. See infra, at 224–225.