Davenport error in California

2005Nor could the prosecutor's argument be properly characterized as committing Davenport error, i.e., arguing lack of mitigation as an aggravating factor ( People v. Davenport (1985) 41 Cal.3d 247, 288-290 , 221 Cal.Rptr. 794 , 710 P.2d 861 ); (see Crittenden, supra, 9 Cal.4th at pp. 148-149, 36 Cal.Rptr.2d 474 , 885 P.2d 887 .) We therefore conclude the prosecutor did not commit misconduct in this instance. 2.

2005Nor could the prosecutor's argument be properly characterized as committing Davenport error, i.e., arguing lack of mitigation as an aggravating factor ( People v. Davenport (1985) 41 Cal.3d 247, 288-290 , 221 Cal.Rptr. 794 , 710 P.2d 861 ); (see Crittenden, supra, 9 Cal.4th at pp. 148-149, 36 Cal.Rptr.2d 474 , 885 P.2d 887 .) We therefore conclude the prosecutor did not commit misconduct in this instance. 2.

1993Properly construed, the challenged *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.) In the present case, defendant does not suggest the prosecutor either committed Davenport error or urged the jury to use defendant's juvenile burglaries for any improper purpose.

1993(People v. Sully, supra, 53 Cal.3d at p. 1218.) In the present case, defendant does not suggest the prosecutor either committed Davenport error or urged the jury to use defendant’s juvenile burglaries for any improper purpose.

1992Although in Davenport we admonished that such argument should not be permitted "in the future" ( id., at p. 290), we nevertheless have applied the rule to cases tried, as was the present case, prior to Davenport . ( People v. Beardslee (1991) 53 Cal.3d 68, 112 [ 279 Cal. Rptr. 276 , 806 P.2d 1311 ].) We observe, as we have in the past, that defendant's failure to object to the challenged remarks precludes a claim of prosecutorial misconduct. ( People v. Visciotti (1992) 2 Cal.4th 1, 79 [ 5 Cal. Rptr.2d 495 , 825 P.2d 388 ]; People v. Gallego (1990) 52 Cal.3d 115, 200 [ 276 Cal. Rptr. 679 , 802

1992Although in Davenport we admonished that such argument should not be permitted "in the future" ( id., at p. 290), we nevertheless have applied the rule to cases tried, as was the present case, prior to Davenport . ( People v. Beardslee (1991) 53 Cal.3d 68, 112 [ 279 Cal. Rptr. 276 , 806 P.2d 1311 ].) We observe, as we have in the past, that defendant's failure to object to the challenged remarks precludes a claim of prosecutorial misconduct. ( People v. Visciotti (1992) 2 Cal.4th 1, 79 [ 5 Cal. Rptr.2d 495 , 825 P.2d 388 ]; People v. Gallego (1990) 52 Cal.3d 115, 200 [ 276 Cal. Rptr. 679 , 802

1992Finally, we perceive no Davenport error. ( Davenport, supra, 41 Cal.3d at pp. 288-290.) Instead, the prosecutor merely noted the absence of remorse, and did not suggest such absence was an aggravating factor. ( Carrera, supra, 49 Cal.3d at p. 339.) Finding nothing impermissible in the prosecutor's closing argument, we conclude Hardy's trial counsel was not deficient by failing to object to the prosecutor's statements regarding remorse. 10.

1992First, in view of the instructions on aggravating and mitigating factors described more fully below, there is no reasonable likelihood the jury would have been misled by the prosecutor's comments concerning the nature of the weighing process. ( People v. Clair (1992) 2 Cal.4th 629, 662-663 [ 7 Cal. Rptr.2d 564 , 828 P.2d 705 ].) Second, the jury was instructed to consider the enumerated factors only "if applicable," allowing the jury to assign whatever weight was appropriate to each particular factor. ( People v. Gallego, supra, 52 Cal.3d 115, 200 ; People v. Brown (1988) 46 Cal.3d 432, 454-45

1989Initially, we note that defendant is barred from complaining of any prosecutorial misconduct in this regard since he failed to object to the prosecutor's argument, and because a simple admonition would have readily clarified any confusion and cured any harm. ( People v. Green, supra, 27 Cal.3d at p. 34 ; see People v. Ghent, supra, 43 Cal.3d at p. 777; People v. Allen, supra, *903 42 Cal.3d at p. 1284 .) Moreover, this case was tried two years prior to our opinion in Davenport .

1989Initially, we note that defendant is barred from complaining of any prosecutorial misconduct in this regard since he failed to object to the prosecutor's argument, and because a simple admonition would have readily clarified any confusion and cured any harm. ( People v. Green, supra, 27 Cal.3d at p. 34 ; see People v. Ghent, supra, 43 Cal.3d at p. 777; People v. Allen, supra, *903 42 Cal.3d at p. 1284 .) Moreover, this case was tried two years prior to our opinion in Davenport .

1989(Compare People v. Brown (1988) 46 Cal.3d 432 , 455-456 with People v. Lucero (1988) 44 Cal.3d 1006, 1031, fn. 15 [ 245 Cal.Rptr. 185 , 750 P.2d 1342 ].) We find it unnecessary to attempt a final resolution of the issue in this case because here the Davenport error does not exist in isolation but serves to exacerbate so-called “Brown“ error (see People v. Brown (1985) 40 Cal.3d 512, 544, fn. 17 [ 220 Cal.Rptr. 637 , 709 P.2d 440 ], revd. on other grounds sub nom.

1989(Compare People v. Brown (1988) 46 Cal.3d 432 , 455-456 with People v. Lucero (1988) 44 Cal.3d 1006, 1031, fn. 15 [ 245 Cal.Rptr. 185 , 750 P.2d 1342 ].) We find it unnecessary to attempt a final resolution of the issue in this case because here the Davenport error does not exist in isolation but serves to exacerbate so-called “Brown“ error (see People v. Brown (1985) 40 Cal.3d 512, 544, fn. 17 [ 220 Cal.Rptr. 637 , 709 P.2d 440 ], revd. on other grounds sub nom.

2000(See Griffin v. California (1965) 380 U.S. 609, 613-615 [ 85 S.Ct. 1229, 1232-1233 , 14 L.Ed.2d 106 ]; People v. Coleman (1969) 71 Cal.2d 1159, 1168-1169 [ 80 Cal.Rptr. 920 , 459 P.2d 248 ].) Defendant also asserts the prosecutor committed Boyd error (People v. Boyd, supra, 38 Cal.3d 762, 771-776 ) by invoking lack of remorse as a nonstatutory aggravating factor, and Davenport error (People v. Davenport, supra, 41 Cal.3d 247, 288-290 ) by misrepresenting the absence of mitigating evidence of remorse as aggravating.

1996Defendant also claims the prosecutor committed Boyd error (People v. Boyd (1985) 38 Cal.3d 762, 771-776 [ 215 Cal.Rptr. 1 , 700 P.2d 782 ]) by invoking a non-statutory aggravating factor, and Davenport error (People v. Davenport, supra, 41 Cal.3d 247, 288-290 ) by misrepresenting the absence of mitigation as aggravating.

1992Although in Davenport we admonished that such argument should not be permitted "in the future" ( id., at p. 290), we nevertheless have applied the rule to cases tried, as was the present case, prior to Davenport . ( People v. Beardslee (1991) 53 Cal.3d 68, 112 [ 279 Cal. Rptr. 276 , 806 P.2d 1311 ].) We observe, as we have in the past, that defendant's failure to object to the challenged remarks precludes a claim of prosecutorial misconduct. ( People v. Visciotti (1992) 2 Cal.4th 1, 79 [ 5 Cal. Rptr.2d 495 , 825 P.2d 388 ]; People v. Gallego (1990) 52 Cal.3d 115, 200 [ 276 Cal. Rptr. 679 , 802

1992(People v. Visciotti (1992) 2 Cal.4th 1, 79 [ 5 Cal.Rptr.2d 495 , 825 P.2d 388 ]; People v. Gallego (1990) 52 Cal.3d 115, 200 [ 276 Cal.Rptr. 679 , 802 P.2d 169 ]; People v. Rodriguez, supra, 42 Cal.3d 730, 790 .) Even assuming, as defendant has urged in his supplemental brief, that Davenport error served to exacerbate so-called “Brown” error (People v. Brown (1985) 40 Cal.3d 512 [ 220 Cal.Rptr. 637 , 709 P.2d 440 ] (revd. on other grounds in California v. Brown (1987) 479 U.S. 538 [ 93 L.Ed.2d 934 , 107 S.Ct. 837 ]); see discussion, post), entitling defendant to review of his claim of error d

1992Although in Davenport we admonished that such argument should not be permitted "in the future" ( id., at p. 290), we nevertheless have applied the rule to cases tried, as was the present case, prior to Davenport . ( People v. Beardslee (1991) 53 Cal.3d 68, 112 [ 279 Cal. Rptr. 276 , 806 P.2d 1311 ].) We observe, as we have in the past, that defendant's failure to object to the challenged remarks precludes a claim of prosecutorial misconduct. ( People v. Visciotti (1992) 2 Cal.4th 1, 79 [ 5 Cal. Rptr.2d 495 , 825 P.2d 388 ]; People v. Gallego (1990) 52 Cal.3d 115, 200 [ 276 Cal. Rptr. 679 , 802

1992(People v. Visciotti (1992) 2 Cal.4th 1, 79 [ 5 Cal.Rptr.2d 495 , 825 P.2d 388 ]; People v. Gallego (1990) 52 Cal.3d 115, 200 [ 276 Cal.Rptr. 679 , 802 P.2d 169 ]; People v. Rodriguez, supra, 42 Cal.3d 730, 790 .) Even assuming, as defendant has urged in his supplemental brief, that Davenport error served to exacerbate so-called “Brown” error (People v. Brown (1985) 40 Cal.3d 512 [ 220 Cal.Rptr. 637 , 709 P.2d 440 ] (revd. on other grounds in California v. Brown (1987) 479 U.S. 538 [ 93 L.Ed.2d 934 , 107 S.Ct. 837 ]); see discussion, post), entitling defendant to review of his claim of error d

1989Initially, we note that defendant is barred from complaining of any prosecutorial misconduct in this regard since he failed to object to the prosecutor's argument, and because a simple admonition would have readily clarified any confusion and cured any harm. ( People v. Green, supra, 27 Cal.3d at p. 34 ; see People v. Ghent, supra, 43 Cal.3d at p. 777; People v. Allen, supra, *903 42 Cal.3d at p. 1284 .) Moreover, this case was tried two years prior to our opinion in Davenport .

1989(People v. Green, supra, 27 Cal.3d at p. 27.) However, this case was tried before our decision in Davenport, supra, 41 Cal.3d 247 .

1989(Compare People v. Brown (1988) 46 Cal.3d 432 , 455-456 with People v. Lucero (1988) 44 Cal.3d 1006, 1031, fn. 15 [ 245 Cal.Rptr. 185 , 750 P.2d 1342 ].) We find it unnecessary to attempt a final resolution of the issue in this case because here the Davenport error does not exist in isolation but serves to exacerbate so-called “Brown“ error (see People v. Brown (1985) 40 Cal.3d 512, 544, fn. 17 [ 220 Cal.Rptr. 637 , 709 P.2d 440 ], revd. on other grounds sub nom.

1989(Compare People v. Brown (1988) 46 Cal.3d 432 , 455-456 with People v. Lucero (1988) 44 Cal.3d 1006, 1031, fn. 15 [ 245 Cal.Rptr. 185 , 750 P.2d 1342 ].) We find it unnecessary to attempt a final resolution of the issue in this case because here the Davenport error does not exist in isolation but serves to exacerbate so-called “Brown“ error (see People v. Brown (1985) 40 Cal.3d 512, 544, fn. 17 [ 220 Cal.Rptr. 637 , 709 P.2d 440 ], revd. on other grounds sub nom.

1989Initially, we note that defendant is barred from complaining of any prosecutorial misconduct in this regard since he failed to object to the prosecutor's argument, and because a simple admonition would have readily clarified any confusion and cured any harm. ( People v. Green, supra, 27 Cal.3d at p. 34 ; see People v. Ghent, supra, 43 Cal.3d at p. 777; People v. Allen, supra, *903 42 Cal.3d at p. 1284 .) Moreover, this case was tried two years prior to our opinion in Davenport .

1989Initially, we note that defendant is barred from complaining of any prosecutorial misconduct in this regard since he failed to object to the prosecutor's argument, and because a simple admonition would have readily clarified any confusion and cured any harm. ( People v. Green, supra, 27 Cal.3d at p. 34 ; see People v. Ghent, supra, 43 Cal.3d at p. 777; People v. Allen, supra, *903 42 Cal.3d at p. 1284 .) Moreover, this case was tried two years prior to our opinion in Davenport .

2025(See Masters, supra, 7 Cal.5th at p. 1078 [discussing the two hurdles in § 1473 for false evidence].) Davenport’s claim fails to clear the second hurdle as he has not presented a prima facie case Therrien’s 2017 statement “is sufficiently material and credible that it more likely than not would have changed the outcome of the case.” (§ 1473, subd. (b)(1)(C)(i).) As we have already discussed ante, Therrien’s 2017 statement was not material, and based on the evidence in this case, it is not more likely than not Therrien’s statement would have changed the outcome of Davenport’s trial. 55 Davenpor

2009(People v. Wilson, supra, 44 Cal.4th at p. 800; People v. Wader (1993) 5 Cal.4th 610, 659, fn. 9 [ 20 Cal.Rptr.2d 788 , 854 P.2d 80 ].) This claim was not revived by the filing of a motion for new trial raising the Davenport claim.

2009(People v. Wilson, supra, 44 Cal.4th at p. 800; People v. Wader (1993) 5 Cal.4th 610, 659, fn. 9 [ 20 Cal.Rptr.2d 788 , 854 P.2d 80 ].) This claim was not revived by the filing of a motion for new trial raising the Davenport claim.

2009(People v. Williams (1997) 16 Cal.4th 153, 254 [ 66 Cal.Rptr.2d 123 , 940 P.2d 710 ].) In any event, the prosecutor did not argue that the absence of evidence in mitigation constituted evidence in aggravation.

2009(People v. Williams (1997) 16 Cal.4th 153, 254 [ 66 Cal.Rptr.2d 123 , 940 P.2d 710 ].) In any event, the prosecutor did not argue that the absence of evidence in mitigation constituted evidence in aggravation.

2009(People v. Wilson, supra, 44 Cal.4th at p. 800; People v. Wader (1993) 5 Cal.4th 610, 659, fn. 9 [ 20 Cal.Rptr.2d 788 , 854 P.2d 80 ].) This claim was not revived by the filing of a motion for new trial raising the Davenport claim.

2009(People v. Wilson, supra, 44 Cal.4th at p. 800; People v. Wader (1993) 5 Cal.4th 610, 659, fn. 9 [ 20 Cal.Rptr.2d 788 , 854 P.2d 80 ].) This claim was not revived by the filing of a motion for new trial raising the Davenport claim.

2000(See Griffin v. California (1965) 380 U.S. 609, 613-615 [ 85 S.Ct. 1229, 1232-1233 , 14 L.Ed.2d 106 ]; People v. Coleman (1969) 71 Cal.2d 1159, 1168-1169 [ 80 Cal.Rptr. 920 , 459 P.2d 248 ].) Defendant also asserts the prosecutor committed Boyd error (People v. Boyd, supra, 38 Cal.3d 762, 771-776 ) by invoking lack of remorse as a nonstatutory aggravating factor, and Davenport error (People v. Davenport, supra, 41 Cal.3d 247, 288-290 ) by misrepresenting the absence of mitigating evidence of remorse as aggravating.

2000(See Griffin v. California (1965) 380 U.S. 609, 613-615 [ 85 S.Ct. 1229, 1232-1233 , 14 L.Ed.2d 106 ]; People v. Coleman (1969) 71 Cal.2d 1159, 1168-1169 [ 80 Cal.Rptr. 920 , 459 P.2d 248 ].) Defendant also asserts the prosecutor committed Boyd error (People v. Boyd, supra, 38 Cal.3d 762, 771-776 ) by invoking lack of remorse as a nonstatutory aggravating factor, and Davenport error (People v. Davenport, supra, 41 Cal.3d 247, 288-290 ) by misrepresenting the absence of mitigating evidence of remorse as aggravating.

2000(See Griffin v. California (1965) 380 U.S. 609, 613-615 [ 85 S.Ct. 1229, 1232-1233 , 14 L.Ed.2d 106 ]; People v. Coleman (1969) 71 Cal.2d 1159, 1168-1169 [ 80 Cal.Rptr. 920 , 459 P.2d 248 ].) Defendant also asserts the prosecutor committed Boyd error (People v. Boyd, supra, 38 Cal.3d 762, 771-776 ) by invoking lack of remorse as a nonstatutory aggravating factor, and Davenport error (People v. Davenport, supra, 41 Cal.3d 247, 288-290 ) by misrepresenting the absence of mitigating evidence of remorse as aggravating.

2000(See Griffin v. California (1965) 380 U.S. 609, 613-615 [ 85 S.Ct. 1229, 1232-1233 , 14 L.Ed.2d 106 ]; People v. Coleman (1969) 71 Cal.2d 1159, 1168-1169 [ 80 Cal.Rptr. 920 , 459 P.2d 248 ].) Defendant also asserts the prosecutor committed Boyd error (People v. Boyd, supra, 38 Cal.3d 762, 771-776 ) by invoking lack of remorse as a nonstatutory aggravating factor, and Davenport error (People v. Davenport, supra, 41 Cal.3d 247, 288-290 ) by misrepresenting the absence of mitigating evidence of remorse as aggravating.

1997Although trial counsel objected on relevancy grounds to the inclusion of section 190.3, factor (h), like counsel in People v. Montiel, supra, 5 Cal.4th 877 , “he did not challenge [what he now asserts was] the prosecutor’s improper attempt to convert ‘absence of mitigation’ into ‘aggravation.’ Hence, a direct claim of Davenport error is barred.” (People v. Montiel, supra, 5 Cal.4th at p. 937.) Even assuming the prosecutor’s misleading remarks were sufficiently misleading to oblige the court sua sponte to instruct defendant’s penalty jury *271 the mere absence of mitigating evidence is not aggr

1997Although trial counsel objected on relevancy grounds to the inclusion of section 190.3, factor (h), like counsel in People v. Montiel, supra, 5 Cal.4th 877 , “he did not challenge [what he now asserts was] the prosecutor’s improper attempt to convert ‘absence of mitigation’ into ‘aggravation.’ Hence, a direct claim of Davenport error is barred.” (People v. Montiel, supra, 5 Cal.4th at p. 937.) Even assuming the prosecutor’s misleading remarks were sufficiently misleading to oblige the court sua sponte to instruct defendant’s penalty jury *271 the mere absence of mitigating evidence is not aggr

1994(See People v. Clark (1993) 5 Cal.4th 950, 1030 [ 22 Cal. Rptr.2d 689 , 857 P.2d 1099 ]; People v. Davenport (1985) 41 Cal.3d 247, 288-290 [ 221 Cal. Rptr. 794 , 710 P.2d 861 ].) [1] Under the law in effect when defendant committed the killings, murderers under the age of 18 could not even be sentenced to life without possibility of parole. ( People v. Spears (1983) 33 Cal.3d 279, 283 [ 188 Cal. Rptr. 454 , 655 P.2d 1289 ].) Under current law, a defendant who commits a murder with special circumstances before turning 18 still may not be sentenced to death, but may be sentenced to life imprison

1994(See People v. Clark (1993) 5 Cal.4th 950, 1030 [ 22 Cal. Rptr.2d 689 , 857 P.2d 1099 ]; People v. Davenport (1985) 41 Cal.3d 247, 288-290 [ 221 Cal. Rptr. 794 , 710 P.2d 861 ].) [1] Under the law in effect when defendant committed the killings, murderers under the age of 18 could not even be sentenced to life without possibility of parole. ( People v. Spears (1983) 33 Cal.3d 279, 283 [ 188 Cal. Rptr. 454 , 655 P.2d 1289 ].) Under current law, a defendant who commits a murder with special circumstances before turning 18 still may not be sentenced to death, but may be sentenced to life imprison

1994(See People v. Clark (1993) 5 Cal.4th 950, 1030 [ 22 Cal. Rptr.2d 689 , 857 P.2d 1099 ]; People v. Davenport (1985) 41 Cal.3d 247, 288-290 [ 221 Cal. Rptr. 794 , 710 P.2d 861 ].) [1] Under the law in effect when defendant committed the killings, murderers under the age of 18 could not even be sentenced to life without possibility of parole. ( People v. Spears (1983) 33 Cal.3d 279, 283 [ 188 Cal. Rptr. 454 , 655 P.2d 1289 ].) Under current law, a defendant who commits a murder with special circumstances before turning 18 still may not be sentenced to death, but may be sentenced to life imprison

1994(See People v. Clark (1993) 5 Cal.4th 950, 1030 [ 22 Cal. Rptr.2d 689 , 857 P.2d 1099 ]; People v. Davenport (1985) 41 Cal.3d 247, 288-290 [ 221 Cal. Rptr. 794 , 710 P.2d 861 ].) [1] Under the law in effect when defendant committed the killings, murderers under the age of 18 could not even be sentenced to life without possibility of parole. ( People v. Spears (1983) 33 Cal.3d 279, 283 [ 188 Cal. Rptr. 454 , 655 P.2d 1289 ].) Under current law, a defendant who commits a murder with special circumstances before turning 18 still may not be sentenced to death, but may be sentenced to life imprison

1994Howard Brodie's proposed testimony was excluded in both People v. Whitt, supra, 51 Cal.3d at page 644 , and in Harris, supra, 28 Cal.3d at page 962. [13] Defendant does not argue that the prosecutor committed Davenport error, that is, that his argument invited the jury to consider the absence of mitigation as an aggravating circumstance.

1992(See, e.g., People v. Sheldon, supra, 48 Cal.3d at p. 957; People v. Johnson, supra, 47 Cal.3d at p. 1247; People v. Miranda (1987) 44 Cal.3d 57, 104-105 [ 241 Cal.Rptr. 594 , 744 P.2d 1127 ].) In a related argument, defendant contends the prosecutor committed “Davenport error” (see People v. Davenport (1985) 41 Cal.3d 247, 289-290 [ 221 Cal.Rptr. 794 , 710 P.2d 861 ]) when he argued that the jury could consider as an aggravating circumstance the fact that the victims were not coparticipants with defendant in the offenses he committed.

1992(See, e.g., People v. Sheldon, supra, 48 Cal.3d at p. 957; People v. Johnson, supra, 47 Cal.3d at p. 1247; People v. Miranda (1987) 44 Cal.3d 57, 104-105 [ 241 Cal. Rptr. 594 , 744 P.2d 1127 ].) *719 (15) In a related argument, defendant contends the prosecutor committed "Davenport error" (see People v. Davenport (1985) 41 Cal.3d 247, 289-290 [ 221 Cal. Rptr. 794 , 710 P.2d 861 ]) when he argued that the jury could consider as an aggravating circumstance the fact that the victims were not coparticipants with defendant in the offenses he committed.

1992Failure to Clarify Factor (b) In determining the appropriate penalty, the jury was instructed to "consider ... (b) The presence or absence of criminal activity by each defendant *204 which involved the use or attempted use of force or violence or the expressed or implied threat to use force or violence." (See § 190.3, factor (b) [hereafter factor (b)].) Defendants claim several instructional errors related to this provision. (i) Alleged Robertson Error (82) Defendants first claim they are entitled to a new penalty phase hearing because the trial court failed to instruct the jury that it should

1992Failure to Clarify Factor (b) In determining the appropriate penalty, the jury was instructed to "consider ... (b) The presence or absence of criminal activity by each defendant *204 which involved the use or attempted use of force or violence or the expressed or implied threat to use force or violence." (See § 190.3, factor (b) [hereafter factor (b)].) Defendants claim several instructional errors related to this provision. (i) Alleged Robertson Error (82) Defendants first claim they are entitled to a new penalty phase hearing because the trial court failed to instruct the jury that it should

1992We reject the claim: "it is well settled that the trial court has no duty to delete assertedly inapplicable mitigating factors." ( People v. Lewis (1990) 50 Cal.3d 262, 280 [ 266 Cal. Rptr. 834 , 786 P.2d 892 ].) Hardy suggests the prosecutor committed Davenport error ( People v. Davenport (1985) 41 Cal.3d 247, 288-290 [ 221 Cal. Rptr. 794 , 710 P.2d 861 ]), because he "clearly suggest[ed] to the jury that they should find this crime to be an aggravated one because none of these four types of inapplicable mitigation existed here." The record, however, does not disclose that the prosecutor enga

1992We reject the claim: "it is well settled that the trial court has no duty to delete assertedly inapplicable mitigating factors." ( People v. Lewis (1990) 50 Cal.3d 262, 280 [ 266 Cal. Rptr. 834 , 786 P.2d 892 ].) Hardy suggests the prosecutor committed Davenport error ( People v. Davenport (1985) 41 Cal.3d 247, 288-290 [ 221 Cal. Rptr. 794 , 710 P.2d 861 ]), because he "clearly suggest[ed] to the jury that they should find this crime to be an aggravated one because none of these four types of inapplicable mitigation existed here." The record, however, does not disclose that the prosecutor enga