546US1
Unit: $U17
[08-22-08 15:50:12] PAGES PGT: OPIN
Cite as: 546 U. S. 212 (2006)
221
Opinion of the Court
of the invalid sentencing factor allowed the sentencer to con sider evidence that would not otherwise have been before it, due process would mandate reversal without regard to the rule we apply here. See supra, at 219; see also n. 6, supra.7 The issue we confront is the skewing that could result from the jury’s considering as aggravation properly admitted evi dence that should not have weighed in favor of the death penalty. See, e. g., Stringer, 503 U. S., at 232 (“[W]hen the sentencing body is told to weigh an invalid factor in its deci sion, 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”). As we have explained, such skewing will occur, and give rise to constitutional error, only where the jury could not have given aggravating weight to the same facts and circumstances under the rubric of some other, valid sentencing factor. III In California, a defendant convicted of first-degree murder is eligible for the death penalty if the jury finds one of the “special circumstances” listed in Cal. Penal Code Ann. § 190.2 (West Supp. 2005) to be true. These are the eligibility fac tors designed to satisfy Furman. See People v. Baciga 7 This explains the footnote in Clemons v. Mississippi, supra, at 754, n. 5, on which Justice Breyer relies, see post, at 240. That footnote addressed petitioner’s argument that the Mississippi Supreme Court had arbitrarily refused to order jury resentencing, even though it had done so in an earlier case, Johnson v. State, 511 So. 2d 1333 (1987), rev’d, 486 U. S. 578 (1988), on remand, 547 So. 2d 59 (1989) (en banc). We distinguished the two cases, noting that in Johnson, “the jury was permitted to consider inadmissible evidence in determining the defendant’s sentence,” 494 U. S., at 754–755, n. 5, whereas in Clemons, “there is no serious suggestion that the State’s reliance on the [invalid] factor led to the introduction of any evidence that was not otherwise admissible in either the guilt or sentenc ing phases of the proceeding,” id., at 755, n. 5. The crux of this distinction is that the sentencer’s consideration of improper evidence is an error dis tinct from the one at issue here and in Clemons, to wit, the jury’s weighing in favor of death a factor that should not have been part of its calculus.
