What is the test for a jury to consider a defendant's violent childhood as a mitigating factor?

Defendant first contends the foregoing instruction was too broad, permitting the jury to consider defendant's nonviolent conduct even though it did not truly "rebut" evidence of defendant's troubled childhood. (See People v. Rodriguez (1986) 42 Cal.3d 730, 792, fn. 24, 230 Cal.Rptr. 667, 726 P.2d 113 [scope of rebuttal must be specific; evidence must relate to particular incident or character trait relied on by defendant].) But the instruction correctly limited the jury's consideration to rebuttal evidence, leaving it to the jury (guided perhaps by counsel's closing arguments) to decide whether the proffered evidence indeed rebutted any evidence elicited by defendant. If defendant believed the instruction was unclear or incomplete, he had the obligation to request clarifying language. (See People v. Sully, supra, 53 Cal.3d 1195, 1218, 283 Cal.Rptr. 144, 812 P.2d 163.)

Next, defendant contends the instruction improperly allowed the jury to consider his juvenile burglaries as evidence of the absence of mitigating evidence, contrary to the rule in People v. Davenport (1985) 41 Cal.3d 247, 288-290, 221 Cal.Rptr. 794, 710 P.2d 861. Davenport, however, dealt with a different problem, namely, the impropriety of prosecutorial argument characterizing as an aggravating factor the absence of particular mitigating factors, such as the defendant's mental defect or disease. By its terms, the challenged instruction did not permit the jury to treat defendant's juvenile burglaries as a negative mitigating factor. Properly construed, the challenged [6 Cal.4th 54] instruction simply would allow consideration of any evidence of defendant's prior criminal conduct that called in question the existence of a mitigating circumstance "raised by the defendant." Once again, defendant had the obligation to request any appropriate clarifying language. (People v. Sully, supra, 53 Cal.3d at p. 1218, 283 Cal.Rptr. 144, 812 P.2d 163.)