und to be true the special circumstance
that Daniels had been convicted of killing more than one indi-
vidual. See Cal. Penal Code § 190.2(a)(3). But the jury double
counted by making this finding twice: once for each officer
killed. The court neglected to instruct the jury that it could
only consider the multiple-murder special circumstance as a
single factor in aggravation. Daniels contends that the trial
court erred in allowing this double counting, basing his argu-
ment on the plurality opinion of the California Supreme Court
in People v. Harris, 679 P.2d 433 (Cal. 1984).
  31
    While the same publicity that tainted the penalty phase would also
have infected the guilt phase, Daniels does not raise this argument on
appeal, limiting our analysis to the penalty phase only.
                         DANIELS v. WOODFORD                         14997
   On Daniels’s direct appeal, the California Supreme Court
found the jury’s finding of two multiple-murder special cir-
cumstances erroneous and set the second finding aside. Dan-
iels, 802 P.2d at 938. Citing People v. Harris, the court held
that because one finding of a multiple murder special circum-
stance was sufficient to establish that Daniels was “convicted
of more than one offense of murder,” the second such finding
was erroneous.32 Id. The jury, therefore, should have consid-
ered only one multiple murder circumstance at the penalty
phase. See id.; see also Harris, 679 P.2d at 452 (“Since there
must be more than one murder to allege this special circum-
stance at all, alleging two special circumstances for a double
murder improperly inflates the risk that the jury will arbitrar-
ily impose the death penalty, a result also inconsistent with
the constitutional requirement that the capital sentencing pro-
cedure guide and focus the jury’s objective consideration of
the particularized circumstances of the offense and the indi-
vidual offender.”) (citing Jurek v. Texas, 428 U.S. 262, 273-
74 (1976)). Nevertheless, the California court concluded t