What is the impact of the prosecutor's argument to the jury that a defendant's mental state is not aggravating under the circumstances?

Defendant interprets the prosecutor's argument differently. He notes that at the outset, she argued that he was "simply too dangerous to live." Argument of dangerousness is proper when based, as here, on the defendant's past conduct. (People v. Ray, supra, 13 Cal.4th at pp. 352-353, 52 Cal.Rptr.2d 296, 914 P.2d 846.) The prosecutor did not suggest that the evidence defendant presented of his mental state was itself aggravating. As defendant notes, the prosecutor did discuss this defense evidence; indeed, she discussed it extensively, as she probably had to given the emphasis the defense placed on it. We have reviewed that argument, including the excerpts defendant cites. The prosecutor argued that for many reasons the evidence regarding his mental state was not mitigating under the circumstances. But she did not argue the reversethat the evidence was actually aggravating. In addition, as noted, the court instructed the jury that the absence of any

[117 Cal.Rptr.2d 77]

mitigating evidence was not itself aggravating. Regarding another point that defendant cites, defense counsel argued to the jury that defendant was a "whipped puppy." In rebuttal, the prosecutor responded that he may once have been a "whipped puppy," but he was now a "mad dog." This response to the defense argument also did not suggest that defendant's mental state was itself aggravating. As she emphasized in her concluding comments, her main argument was that defendant's "conduct" warranted the death penalty. She did not argue that the evidence defendant presented of his mental condition itself warranted a death sentence, only that it did not warrant a life sentence.

[117 Cal.Rptr.2d 77]

In short, we see no reasonable likelihood the jury interpreted the instructions as allowing it to consider in aggravation the evidence defendant presented of his mental state. (People v. Kelly, supra, 1 Cal.4th at p. 525, 3 Cal.Rptr.2d 677, 822 P.2d 385.)