What is the test for determining whether the absence of a mitigating factor constitutes an aggravating factor?

California, United States of America


The following excerpt is from People v. Boyde, 250 Cal.Rptr. 83, 46 Cal.3d 212, 758 P.2d 25 (Cal. 1988):

4 As the majority opinion acknowledges (ante, p. 108 of 250 Cal.Rptr. p. 50 of 758 P.2d), in discussing the statutory factors the prosecutor erroneously told the jury that the absence of a mitigating factor constituted an aggravating factor. (See People v. Davenport (1985) 41 Cal.3d 247, 289-290, 221 Cal.Rptr. 794, 710 P.2d 861.) Thus, after completing his review of all of the factors up to factor (k), he told the jury: "it seems to me that before you even get to the last factor ... you've got ten solid factors in aggravation, ten solid factors."

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