How have courts interpreted section 190.3(1) of the California Criminal Code when determining aggravation and mitigation factors in aggravation?

Section 190.3 sets out the factors in aggravation and mitigation that the jury may consider in determining the appropriate penalty. We have held that it is improper for a prosecutor to argue that the absence of evidence of a statutory factor in mitigation permits or requires that the factor be considered in aggravation. (People v. Davenport (1985) 41 Cal.3d 247, 289, 221 Cal.Rptr. 794, 710 P.2d 861.) Defendant argues, and the People concede, the prosecutor erred in arguing to the jury that the absence of evidence of certain factors in mitigation was a factor in aggravation. ¹⁹

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