In what circumstances will a jury find that a prosecutor's comment that a victim consented to the crime was not an aggravating factor under section 190.3 aggravation be harmless?

In People v. Kimble, supra, 44 Cal.3d 480, 505-506, 244 Cal.Rptr. 148, 749 P.2d 803, we found similar error harmless because: (1) the erroneous comment was brief; (2) the prosecutor emphasized that only the crimes for which the defendant was being tried were before it for consideration; and (3) the jury could have fully considered the facts in any event under factor (a) of section 190.3. Here, the prosecutor's comment was reasonably brief. He distinguished between the crimes for which defendant was tried and those additional crimes which were introduced at the penalty phase. He appeared to separate the aggravating effect of the underlying crimes from the special circumstances and the less serious offenses of which defendant had been convicted, all of which were in themselves proper matters for the jury to consider. Most importantly, the jury properly considered the facts of each of the many murders. "In view of the properly admitted aggravating factors presented to the jury ... we find it inconceivable that the jury would have reached a different verdict in the absence of the improper argument; accordingly, there was no prejudice." (People v. Kimble, supra, 44 Cal.3d 480, 506, 244 Cal.Rptr. 148, 749 P.2d 803.) We reach the same conclusion here.

8. Davenport Error

Defendant next argues that the factors in aggravation were artificially inflated when the prosecutor argued that the absence of mitigation as to section 190.3, factors (e) [whether the victim was a participant or consented], (f) [whether defendant reasonably believed there was a moral justification for his conduct], (g) [whether defendant acted under duress or domination of another], and (j) [whether defendant was an accomplice or minor participant] was itself aggravating. He correctly argues that we found such argument improper in People v. Davenport (1985) 41 Cal.3d 247, 290, 221 Cal.Rptr. 794, 710 P.2d 861.