Page:United States Reports 546.pdf/435

 546US1

224

Unit: $U17

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

BROWN v. SANDERS Opinion of the Court

3d, at 520, 797 P. 2d, at 589–590. These are sufﬁcient to satisfy Furman’s narrowing requirement, and alone ren­ dered Sanders eligible for the death penalty. Moreover, the jury’s consideration of the invalid eligibility factors in the weighing process did not produce constitutional error be­ cause all of the facts and circumstances admissible to estab­ lish the “heinous, atrocious, or cruel” and burglary-murder eligibility factors were also properly adduced as aggravating facts bearing upon the “circumstances of the crime” sentenc­ ing factor. They were properly considered whether or not they bore upon the invalidated eligibility factors. See 51 Cal. 3d, at 521, 797 P. 2d, at 590. Sanders argues that the weighing process was skewed by the fact that the jury was asked to consider, as one of the sentencing factors, “the existence of any special circum­ stances [eligibility factors] found to be true.” Cal. Penal Code Ann. § 190.3(a) (West 1999). In Sanders’ view, that placed special emphasis upon those facts and circumstances relevant to the invalid eligibility factor. Virtually the same thing happened in Zant. There the Georgia jury was per­ mitted to “ ‘conside[r] all evidence in extenuation, mitigation and aggravation of punishment,’ ” 462 U. S., at 871–872 (quot­ ing Zant v. Stephens, 250 Ga. 97, 99–100, 297 S. E. 2d 1, 3–4 (1982)), but also instructed speciﬁcally that it could consider “ ‘any of [the] statutory aggravating circumstances which you ﬁnd are supported by the evidence,’ ” 462 U. S., at 866. This instruction gave the facts underlying the eligibility factors special prominence. Yet, even though one of the three fac­ tors (that the defendant had a “substantial history of serious assaultive convictions,” id., at 867) was later invalidated, we upheld the sentence. We acknowledged that the erroneous instruction “might have caused the jury to give somewhat greater weight to respondent’s prior criminal record than it otherwise would have given,” id., at 888; indeed, we assumed such an effect, ibid. But the effect was “merely a conse­ quence of the statutory label ‘aggravating circumstanc[e].’ ”