Is evidence of nonviolent criminal activity that did not result in a felony conviction an inadmissible aggravating factor?

Evidence of nonviolent criminal activity that did not result in a felony conviction is, as defendant claims, inadmissible as an aggravating factor. (People v. Burton, supra, 48 Cal.3d 843, 862, 258 Cal.Rptr. 184, 771 P.2d 1270.) Here, however, the evidence that defendant now claims should not have been considered was evidence that he himself had introduced in support of his effort to establish that his criminal conduct was attributable to his use of drugs and that he was otherwise a loving, caring, nonviolent and law-abiding person. The court did limit consideration of the evidence by instructing the jury to consider the statutory factors ( 190.3) in determining the penalty. Having introduced the evidence himself, defendant may not now complain that the jury might have concluded that the factor to which it was relevant was aggravating rather than mitigating. (People v. Williams, supra, 44 Cal.3d 883, 957, 245 Cal.Rptr. 336, 751 P.2d 395.) ³⁸

[2 Cal.4th 73] C. Response to Jury Inquiries.

During the second day of deliberation, the jury sent questions to the judge asking:

"1. Can you give us a more explicit legal definition of the phrase 'extreme duress'?"

and

"2. Can you give us a more explicit legal definition of the phrase 'moral justification'?"

The court responded in writing, signed with "O.K." by both counsel, stating: