Is there any limitation on defense counsel's argument that the jury should consider whether the aggravating circumstances outweigh the mitigating circumstances?

We observed in Boyce that "the court did not foreclose defense counsel from urging the jury to show sympathy and mercy to defendant." ( People v. Boyce , supra , 59 Cal.4th at p. 707, 175 Cal.Rptr.3d 481, 330 P.3d 812.) Defendant asserts that the same is not true here, pointing to the following comments made by the court to counsel during a discussion of proposed jury instructions: "[I]f the People were to argue, or you were to argue to the jury, Ladies and gentlemen of the jury, even if you do the weighing that's called upon by the statute, even if you find that the aggravating circumstances outweigh the mitigating circumstances, I am asking you to be merciful. Give him life anyhow. Be merciful, that's what mercy means, to disregard. To accord to someone some sort of a punishment other than the one that he or she is entitled to under the law. And if you're using the word in that sense, I would stop that argument. That's erroneous."

The trial court did not impermissibly restrict defense counsel's argument. The court was not ruling on an objection to an argument proffered by defense counsel but was simply using a hypothetical defense argument as an example to illustrate the point he was making. Further, the court correctly concluded that it would be improper for defense counsel to argue that the jury could disregard whether the aggravating circumstances outweigh the mitigating circumstances and "accord to someone some sort of a punishment other than the one that he or she is entitled to under the law." As defendant acknowledges, we held in People v. Ervine (2009) 47 Cal.4th 745, 802, 102 Cal.Rptr.3d 786, 220 P.3d 820, that "the trial court did not err in directing the parties to refer to sympathy, pity, or compassion instead of mercy in argument." This ruling "merely guided the language [counsel] was to use in requesting leniency, replacing the word mercy with a synonym that did not connote an emotional response to the mitigating evidence instead of a reasoned moral response." ( Ibid. )