absence of mitigating factors in California

2009(People v. Salcido, supra, 44 Cal.4th at p. 160 [finding no statutory bar to a logical comment on a defendant’s lack of remorse, and finding such remarks proper]; People v. Davenport (1985) 41 Cal.3d 247, 288 [ 221 Cal.Rptr. 794 , 710 P.2d 861 ] [a prosecutor’s comments on a capital defendant’s future dangerousness are “within the proper bounds of argument to the jury”].) Moreover, the record does not support defendant’s contention that “the prosecutor argued that absence of mitigation constituted aggravation.” The prosecutor, although observing that defendant did not avail himself of opportun

2009(People v. Salcido, supra, 44 Cal.4th at p. 160 [finding no statutory bar to a logical comment on a defendant’s lack of remorse, and finding such remarks proper]; People v. Davenport (1985) 41 Cal.3d 247, 288 [ 221 Cal.Rptr. 794 , 710 P.2d 861 ] [a prosecutor’s comments on a capital defendant’s future dangerousness are “within the proper bounds of argument to the jury”].) Moreover, the record does not support defendant’s contention that “the prosecutor argued that absence of mitigation constituted aggravation.” The prosecutor, although observing that defendant did not avail himself of opportun

2012(D’Arcy, supra, 48 Cal.4th at p. 308; People v. Watson (2008) 43 Cal.4th 652, 704 [ 76 Cal.Rptr.3d 208 , 182 P.3d 543 ]; People v. Cunningham, supra, 25 Cal.4th at p. 1041.) “Because capital defendants are not similarly situated to noncapital defendants, California’s death penalty law does not deny capital defendants equal protection by providing certain procedural protections to noncapital defendants but not to capital defendants.” (People v. Jennings (2010) 50 Cal.4th 616, 690 [ 114 Cal.Rptr.3d 133 , 237 P.3d 474 ]; see Cruz, supra, 44 Cal.4th at p. 681 ; People v. Johnson (1992) 3 Cal.4th 1

2012(D’Arcy, supra, 48 Cal.4th at p. 308; People v. Watson (2008) 43 Cal.4th 652, 704 [ 76 Cal.Rptr.3d 208 , 182 P.3d 543 ]; People v. Cunningham, supra, 25 Cal.4th at p. 1041.) “Because capital defendants are not similarly situated to noncapital defendants, California’s death penalty law does not deny capital defendants equal protection by providing certain procedural protections to noncapital defendants but not to capital defendants.” (People v. Jennings (2010) 50 Cal.4th 616, 690 [ 114 Cal.Rptr.3d 133 , 237 P.3d 474 ]; see Cruz, supra, 44 Cal.4th at p. 681 ; People v. Johnson (1992) 3 Cal.4th 1

2012(D’Arcy, supra, 48 Cal.4th at p. 308; People v. Watson (2008) 43 Cal.4th 652, 704 [ 76 Cal.Rptr.3d 208 , 182 P.3d 543 ]; People v. Cunningham, supra, 25 Cal.4th at p. 1041.) “Because capital defendants are not similarly situated to noncapital defendants, California’s death penalty law does not deny capital defendants equal protection by providing certain procedural protections to noncapital defendants but not to capital defendants.” (People v. Jennings (2010) 50 Cal.4th 616, 690 [ 114 Cal.Rptr.3d 133 , 237 P.3d 474 ]; see Cruz, supra, 44 Cal.4th at p. 681 ; People v. Johnson (1992) 3 Cal.4th 1

2011(D'Arcy, supra, 48 Cal.4th at p. 308; People v. Watson (2008) 43 Cal.4th 652, 704 [ 76 Cal.Rptr.3d 208 , 182 P.3d 543 ]; People v. Cunningham (2001) 25 Cal.4th 926, 1041 [ 108 Cal.Rptr.2d 291 , 25 P.3d 519 ].) The use in the sentencing factors of the phrases “extreme mental or emotional disturbance” (§ 190.3, factor (d), italics added) and “extreme duress or . . . substantial domination of another” (id., factor (g), italics added) does not inhibit the consideration of mitigating evidence or make the factors impermissibly vague.

2024(See In re Handa (1985) 166 Cal.App.3d 966, 973 [“many alleged factors in mitigation are disputable either because … they may not be mitigating under the circumstances of a particular case [and w]here an alleged factor in mitigation is disputable, the court may find an absence of mitigating factors and need not explain the reason for its conclusion.”].) The record here indicates the trial court considered the factors that defendant claims were ignored, as it stated that while defendant “may benefit” from the residential treatment program, this benefit was outweighed by the interests of the com

2021(See People v. Weaver (2007) 149 Cal.App.4th 1301 , 1317–1318, overruled on another ground in People v. Cook (2015) 60 Cal.4th 922 ; In re Handa (1985) 166 Cal.App.3d 966, 973 [where an alleged factor in mitigation “may not be mitigating under the circumstances of a particular case . . . the court may find an absence of mitigating factors and need not explain the reason for its conclusion”].) Hassenzahl has failed to demonstrate any abuse of the trial court’s sentencing discretion. 11 IV.

1988(Accord People v. Miranda (1987) 44 Cal.3d 57, 104-105 [ 241 Cal. Rptr. 594 , 744 P.2d 1127 ]; People v. Ghent (1987) 43 Cal.3d 739, 776-777 [ 239 Cal. Rptr. 82 , 739 P.2d 1250 ].) We agree with defendant that the absence of any of the statutory mitigating factors should not be considered aggravating ( People v. Davenport (1985) 41 Cal.3d 247, 289 [ 221 Cal. Rptr. 794 , 710 P.2d 861 ]), but no instruction was given here that might suggest to the jury that it should look at the absence of mitigating factors from that perspective.

1988(Accord People v. Miranda (1987) 44 Cal.3d 57, 104-105 [ 241 Cal. Rptr. 594 , 744 P.2d 1127 ]; People v. Ghent (1987) 43 Cal.3d 739, 776-777 [ 239 Cal. Rptr. 82 , 739 P.2d 1250 ].) We agree with defendant that the absence of any of the statutory mitigating factors should not be considered aggravating ( People v. Davenport (1985) 41 Cal.3d 247, 289 [ 221 Cal. Rptr. 794 , 710 P.2d 861 ]), but no instruction was given here that might suggest to the jury that it should look at the absence of mitigating factors from that perspective.

2012(D’Arcy, supra, 48 Cal.4th at p. 308; People v. Watson (2008) 43 Cal.4th 652, 704 [ 76 Cal.Rptr.3d 208 , 182 P.3d 543 ]; People v. Cunningham, supra, 25 Cal.4th at p. 1041.) “Because capital defendants are not similarly situated to noncapital defendants, California’s death penalty law does not deny capital defendants equal protection by providing certain procedural protections to noncapital defendants but not to capital defendants.” (People v. Jennings (2010) 50 Cal.4th 616, 690 [ 114 Cal.Rptr.3d 133 , 237 P.3d 474 ]; see Cruz, supra, 44 Cal.4th at p. 681 ; People v. Johnson (1992) 3 Cal.4th 1

2011(D’Arcy, supra, 48 Cal.4th at p. 308; People v. Watson (2008) 43 Cal.4th 652, 704 [ 76 Cal.Rptr.3d 208 , 182 P.3d *497 543]; People v. Cunningham (2001) 25 Cal.4th 926, 1041 [ 108 Cal.Rptr.2d 291 , 25 P.3d 519 ].) The use in the sentencing factors of the phrases “extreme mental or emotional disturbance” (§ 190.3, factor (d), italics added) and “extreme duress or . . . substantial domination of another” (id.., factor (g), italics added) does not inhibit the consideration of mitigating evidence or make the factors impermissibly vague.

2012(Bramit, supra, 46 Cal.4th at p. 1249; People v. Bunyard (2009) 45 Cal.4th 836, 861 [ 89 Cal.Rptr.3d 264 , 200 P3d 879 ]; People v. Lewis (2008) 43 Cal.4th 415, 532 [ 75 Cal.Rptr.3d 588 , 181 P.3d 947 ].) *770 The trial court need not label the statutory sentencing factors as either aggravating or mitigating, nor instruct the jury that the absence of mitigating factors does not constitute aggravation.

2012(Bramit, supra, 46 Cal.4th at p. 1249; People v. Bunyard (2009) 45 Cal.4th 836, 861 [ 89 Cal.Rptr.3d 264 , 200 P3d 879 ]; People v. Lewis (2008) 43 Cal.4th 415, 532 [ 75 Cal.Rptr.3d 588 , 181 P.3d 947 ].) *770 The trial court need not label the statutory sentencing factors as either aggravating or mitigating, nor instruct the jury that the absence of mitigating factors does not constitute aggravation.

1991Defendant next claims the district attorney improperly "implied" that the absence of mitigating factors was itself an aggravating factor when he argued that defendant was "not a product of a bad background," but had "loving parents." It is proper, however, to argue that a defendant is "less deserving of leniency" because of the absence of a mitigating factor. ( People v. Rodriguez (1986) 42 Cal.3d 730, 789 [ 230 Cal. Rptr. 667 , 726 P.2d 113 ] [italics in original].) The argument complained of did no more.

1991Defendant next claims the district attorney improperly "implied" that the absence of mitigating factors was itself an aggravating factor when he argued that defendant was "not a product of a bad background," but had "loving parents." It is proper, however, to argue that a defendant is "less deserving of leniency" because of the absence of a mitigating factor. ( People v. Rodriguez (1986) 42 Cal.3d 730, 789 [ 230 Cal. Rptr. 667 , 726 P.2d 113 ] [italics in original].) The argument complained of did no more.

2026(Cf. People v. Hamilton (1989) 48 Cal.3d 1142, 1184 [despite the prosecutor’s mischaracterization of the absence of mitigating factors as “aggravating,” “we have assumed reasonable jurors would understand how to evaluate the absence of particular mitigating factors”].) Accordingly, had the prosecutor not tainted the jurors’ assessment of the evidence by appealing to racial bias, there is a reasonable possibility the 3 That “the facts surrounding the capital crimes were uncontroverted” (maj. opn., ante, at p. 124, italics added) is thus irrelevant to how the jury assessed Demolle’s mitigating e

1991Despite the reference in Davenport to the "future," we have subsequently applied the rule to cases tried before the decision. ( People v. Hamilton (1989) 48 Cal.3d 1142, 1184 [ 259 Cal. Rptr. 701 , 774 P.2d 730 ].) (25) The Attorney General argues that the prosecutor did not claim that the absence of a mitigating factor is "automatically" aggravating, but merely aggravating under the facts of the case.

2012(Bramit, supra, 46 Cal.4th at p. 1249; People v. Bunyard (2009) 45 Cal.4th 836, 861 [ 89 Cal.Rptr.3d 264 , 200 P3d 879 ]; People v. Lewis (2008) 43 Cal.4th 415, 532 [ 75 Cal.Rptr.3d 588 , 181 P.3d 947 ].) *770 The trial court need not label the statutory sentencing factors as either aggravating or mitigating, nor instruct the jury that the absence of mitigating factors does not constitute aggravation.

2011(Bramit, supra, 46 Cal.4th at p. 1249; Bunyard, supra, 45 Cal.4th at p. 861; People v. Lewis (2008) 43 Cal.4th 415, 532 [ 75 Cal.Rptr.3d 588 , 181 P.3d 947 ].) The trial court need not label the statutory sentencing factors as either aggravating or mitigating, nor instruct the jury that the absence of mitigating factors does not constitute aggravation.

2012(Bramit, supra, 46 Cal.4th at p. 1249; People v. Bunyard (2009) 45 Cal.4th 836, 861 [ 89 Cal.Rptr.3d 264 , 200 P3d 879 ]; People v. Lewis (2008) 43 Cal.4th 415, 532 [ 75 Cal.Rptr.3d 588 , 181 P.3d 947 ].) *770 The trial court need not label the statutory sentencing factors as either aggravating or mitigating, nor instruct the jury that the absence of mitigating factors does not constitute aggravation.

2012(Bramit, supra, 46 Cal.4th at p. 1249; People v. Bunyard (2009) 45 Cal.4th 836, 861 [ 89 Cal.Rptr.3d 264 , 200 P3d 879 ]; People v. Lewis (2008) 43 Cal.4th 415, 532 [ 75 Cal.Rptr.3d 588 , 181 P.3d 947 ].) *770 The trial court need not label the statutory sentencing factors as either aggravating or mitigating, nor instruct the jury that the absence of mitigating factors does not constitute aggravation.

2011(People v. Ramirez (2006) 39 Cal.4th 398, 474 [ 46 Cal.Rptr.3d 677 , 139 P.3d 64 ]; People v. Harris (2005) 37 Cal.4th 310, 359 [ 33 Cal.Rptr.3d 509 , 118 P.3d 545 ]; People v. Champion (1995) 9 Cal.4th 879, 946 [ 39 Cal.Rptr.2d 547 , 891 P.2d 93 ].) The trial court need not label the statutory sentencing factors as either aggravating or mitigating, nor instruct the jury that the absence of mitigating factors does not constitute aggravation.

2011(People v. Ramirez (2006) 39 Cal.4th 398, 474 [ 46 Cal.Rptr.3d 677 , 139 P.3d 64 ]; People v. Harris (2005) 37 Cal.4th 310, 359 [ 33 Cal.Rptr.3d 509 , 118 P.3d 545 ]; People v. Champion (1995) 9 Cal.4th 879, 946 [ 39 Cal.Rptr.2d 547 , 891 P.2d 93 ].) The trial court need not label the statutory sentencing factors as either aggravating or mitigating, nor instruct the jury that the absence of mitigating factors does not constitute aggravation.

2011(People v. Ramirez (2006) 39 Cal.4th 398, 474 [ 46 Cal.Rptr.3d 677 , 139 P.3d 64 ]; People v. Harris (2005) 37 Cal.4th 310, 359 [ 33 Cal.Rptr.3d 509 , 118 P.3d 545 ]; People v. Champion (1995) 9 Cal.4th 879, 946 [ 39 Cal.Rptr.2d 547 , 891 P.2d 93 ].) The trial court need not label the statutory sentencing factors as either aggravating or mitigating, nor instruct the jury that the absence of mitigating factors does not constitute aggravation.

2011(People v. Ramirez (2006) 39 Cal.4th 398, 474 [ 46 Cal.Rptr.3d 677 , 139 P.3d 64 ]; People v. Harris (2005) 37 Cal.4th 310, 359 [ 33 Cal.Rptr.3d 509 , 118 P.3d 545 ]; People v. Champion (1995) 9 Cal.4th 879, 946 [ 39 Cal.Rptr.2d 547 , 891 P.2d 93 ].) The trial court need not label the statutory sentencing factors as either aggravating or mitigating, nor instruct the jury that the absence of mitigating factors does not constitute aggravation.

2011(People v. Ramirez (2006) 39 Cal.4th 398, 474 [ 46 Cal.Rptr.3d 677 , 139 P.3d 64 ]; People v. Harris (2005) 37 Cal.4th 310, 359 [ 33 Cal.Rptr.3d 509 , 118 P.3d 545 ]; People v. Champion (1995) 9 Cal.4th 879, 946 [ 39 Cal.Rptr.2d 547 , 891 P.2d 93 ].) The trial court need not label the statutory sentencing factors as either aggravating or mitigating, nor instruct the jury that the absence of mitigating factors does not constitute aggravation.

2011(People v. Ramirez (2006) 39 Cal.4th 398, 474 [ 46 Cal.Rptr.3d 677 , 139 P.3d 64 ]; People v. Harris (2005) 37 Cal.4th 310, 359 [ 33 Cal.Rptr.3d 509 , 118 P.3d 545 ]; People v. Champion (1995) 9 Cal.4th 879, 946 [ 39 Cal.Rptr.2d 547 , 891 P.2d 93 ].) The trial court need not label the statutory sentencing factors as either aggravating or mitigating, nor instruct the jury that the absence of mitigating factors does not constitute aggravation.

1988(Accord People v. Miranda (1987) 44 Cal.3d 57, 104-105 [ 241 Cal. Rptr. 594 , 744 P.2d 1127 ]; People v. Ghent (1987) 43 Cal.3d 739, 776-777 [ 239 Cal. Rptr. 82 , 739 P.2d 1250 ].) We agree with defendant that the absence of any of the statutory mitigating factors should not be considered aggravating ( People v. Davenport (1985) 41 Cal.3d 247, 289 [ 221 Cal. Rptr. 794 , 710 P.2d 861 ]), but no instruction was given here that might suggest to the jury that it should look at the absence of mitigating factors from that perspective.

1988(Accord People v. Miranda (1987) 44 Cal.3d 57, 104-105 [ 241 Cal. Rptr. 594 , 744 P.2d 1127 ]; People v. Ghent (1987) 43 Cal.3d 739, 776-777 [ 239 Cal. Rptr. 82 , 739 P.2d 1250 ].) We agree with defendant that the absence of any of the statutory mitigating factors should not be considered aggravating ( People v. Davenport (1985) 41 Cal.3d 247, 289 [ 221 Cal. Rptr. 794 , 710 P.2d 861 ]), but no instruction was given here that might suggest to the jury that it should look at the absence of mitigating factors from that perspective.

2013“Since the crux of the jury’s decision is the weighing of aggravating and mitigating factors, a prosecutor may properly comment on the absence of mitigating factors so long as the prosecution refrains from suggesting that absence of mitigation is to be equated with aggravation.” (People v. Kaurish (1990) 52 Cal.3d 648, 706 [ 276 Cal.Rptr. 788 , 802 P.2d 278 ].) The prosecutor did not cross this line. b.

2013“Since the crux of the jury’s decision is the weighing of aggravating and mitigating factors, a prosecutor may properly comment on the absence of mitigating factors so long as the prosecution refrains from suggesting that absence of mitigation is to be equated with aggravation.” (People v. Kaurish (1990) 52 Cal.3d 648, 706 [ 276 Cal.Rptr. 788 , 802 P.2d 278 ].) The prosecutor did not cross this line. b.

2013Where an alleged factor in mitigation is disputable, the court may find an absence of mitigating factors and need not explain the reason for its conclusion. [Citations.]” (In re Handa (1985) 166 Cal.App.3d 966, 973 .) Additionally, the weighing of factors in aggravation and mitigation involves a flexible quantitative and qualitative approach (People v. Thornton (1985) 167 Cal.App.3d 72, 77 ), 33. and a court may properly determine that a factor’s mitigating influence is small (People v. Lambeth (1980) 112 Cal.App.3d 495, 500 ; People v. Regalado (1980) 108 Cal.App.3d 531, 539 ) or nonexistent

1985(People v. Simon (1983) 144 Cal.App.3d 761, 766 [ 193 Cal.Rptr. 28 ]; People v. Lambeth (1980) 112 Cal.App.3d 495, 500 [ 169 Cal.Rptr. 193 ].) Drug use or drug addiction at the time of an offense is an example of a disputable factor in mitigation.

2005(People v. Edelbacher (1989) 47 Cal.3d 983, 1034 [ 254 Cal.Rptr. 586 , 766 P.2d 1 ]; People v. Davenport (1985) 41 Cal.3d 247, 289-290 [ 221 Cal.Rptr. 794 , 710 P.2d 861 ].) Defendant acknowledges that the prosecutor made no direct statements contrary to Davenport , but nonetheless argues the prosecutor violated the “spirit” of Davenport on eight occasions because he invited jurors to infer that they should weigh the absence of mitigating factors against defendant. 19 We disagree.

2005(People v. Edelbacher (1989) 47 Cal.3d 983, 1034 [ 254 Cal.Rptr. 586 , 766 P.2d 1 ]; People v. Davenport (1985) 41 Cal.3d 247, 289-290 [ 221 Cal.Rptr. 794 , 710 P.2d 861 ].) Defendant acknowledges that the prosecutor made no direct statements contrary to Davenport , but nonetheless argues the prosecutor violated the “spirit” of Davenport on eight occasions because he invited jurors to infer that they should weigh the absence of mitigating factors against defendant. 19 We disagree.

2012(D’Arcy, supra, 48 Cal.4th at p. 308; People v. Watson (2008) 43 Cal.4th 652, 704 [ 76 Cal.Rptr.3d 208 , 182 P.3d 543 ]; People v. Cunningham, supra, 25 Cal.4th at p. 1041.) “Because capital defendants are not similarly situated to noncapital defendants, California’s death penalty law does not deny capital defendants equal protection by providing certain procedural protections to noncapital defendants but not to capital defendants.” (People v. Jennings (2010) 50 Cal.4th 616, 690 [ 114 Cal.Rptr.3d 133 , 237 P.3d 474 ]; see Cruz, supra, 44 Cal.4th at p. 681 ; People v. Johnson (1992) 3 Cal.4th 1

2012(D’Arcy, supra, 48 Cal.4th at p. 308; People v. Watson (2008) 43 Cal.4th 652, 704 [ 76 Cal.Rptr.3d 208 , 182 P.3d 543 ]; People v. Cunningham, supra, 25 Cal.4th at p. 1041.) “Because capital defendants are not similarly situated to noncapital defendants, California’s death penalty law does not deny capital defendants equal protection by providing certain procedural protections to noncapital defendants but not to capital defendants.” (People v. Jennings (2010) 50 Cal.4th 616, 690 [ 114 Cal.Rptr.3d 133 , 237 P.3d 474 ]; see Cruz, supra, 44 Cal.4th at p. 681 ; People v. Johnson (1992) 3 Cal.4th 1

2012(D’Arcy, supra, 48 Cal.4th at p. 308; People v. Watson (2008) 43 Cal.4th 652, 704 [ 76 Cal.Rptr.3d 208 , 182 P.3d 543 ]; People v. Cunningham, supra, 25 Cal.4th at p. 1041.) “Because capital defendants are not similarly situated to noncapital defendants, California’s death penalty law does not deny capital defendants equal protection by providing certain procedural protections to noncapital defendants but not to capital defendants.” (People v. Jennings (2010) 50 Cal.4th 616, 690 [ 114 Cal.Rptr.3d 133 , 237 P.3d 474 ]; see Cruz, supra, 44 Cal.4th at p. 681 ; People v. Johnson (1992) 3 Cal.4th 1

2012(D’Arcy, supra, 48 Cal.4th at p. 308; People v. Watson (2008) 43 Cal.4th 652, 704 [ 76 Cal.Rptr.3d 208 , 182 P.3d 543 ]; People v. Cunningham, supra, 25 Cal.4th at p. 1041.) “Because capital defendants are not similarly situated to noncapital defendants, California’s death penalty law does not deny capital defendants equal protection by providing certain procedural protections to noncapital defendants but not to capital defendants.” (People v. Jennings (2010) 50 Cal.4th 616, 690 [ 114 Cal.Rptr.3d 133 , 237 P.3d 474 ]; see Cruz, supra, 44 Cal.4th at p. 681 ; People v. Johnson (1992) 3 Cal.4th 1

2012(D’Arcy, supra, 48 Cal.4th at p. 308; People v. Watson (2008) 43 Cal.4th 652, 704 [ 76 Cal.Rptr.3d 208 , 182 P.3d 543 ]; People v. Cunningham, supra, 25 Cal.4th at p. 1041.) “Because capital defendants are not similarly situated to noncapital defendants, California’s death penalty law does not deny capital defendants equal protection by providing certain procedural protections to noncapital defendants but not to capital defendants.” (People v. Jennings (2010) 50 Cal.4th 616, 690 [ 114 Cal.Rptr.3d 133 , 237 P.3d 474 ]; see Cruz, supra, 44 Cal.4th at p. 681 ; People v. Johnson (1992) 3 Cal.4th 1