California, United States of America
The following excerpt is from People v. Grant, 248 Cal.Rptr. 444, 45 Cal.3d 829, 755 P.2d 894 (Cal. 1988):
Defendant argues that the prosecutor's listing of the factors during closing argument misled the jury by causing it to consider as aggravating evidence the absence of mitigating factors that were inapplicable to this case. Defendant fails in this attempt to bring his case within our holding in People v. Davenport, supra, 41 Cal.3d 247, 221 Cal.Rptr. 794, 710 P.2d 861. In Davenport the prosecutor specifically argued that the absence of certain mitigating factors ( 190.3, subds. (d), (g), and (h)) showed the defendant acted calmly, deliberately, and of his own free will; in short, he presented the absence of a mitigating factor as an aggravating circumstance. The majority held this argument may have misled jurors as to the meaning of "aggravation" and "mitigation" under the statute. (41 Cal.3d at pp. 288-290, 221 Cal.Rptr. 794, 710 P.2d 861.) By contrast, the prosecutor in the present case made no such argument; he merely reviewed each factor on the list and attempted to show that each was either absent or unimportant. At no point did he characterize the absence of mitigating factors as a factor in aggravation, and the jury could not reasonably have interpreted his brief comments about the inapplicable factors in that manner.
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