People v. Whitt10/25/1990
te deems relevant to the penalty determination. The jury is entitled to know that defendant's crimes lack certain characteristics which might justify more lenient treatment than other offenses in the same general class. (People v. Williams (1988) 44 Cal. 3d 883, 959-960 [245 Cal. Rptr. 336, 751 P.2d 395]; People v. Melton, supra, 44 Cal. 3d 713, 770.) The jury itself decides which of the listed factors apply in the particular case. (People v. Miranda (1987) 44 Cal. 3d 57, 104-105 [241 Cal. Rptr. 594, 744 P.2d 1127].)
Defendant seeks to distinguish his case on grounds that the prosecutor argued that the absence of mitigating evidence in certain "inapplicable" categories was itself aggravating. However, any impropriety was harmless.
(See fn. 26.) The prosecutor described the circumstances of the crime (factor (a)), the commission of prior violent acts (factor (b)), and defendant's 1974 robbery conviction (factor (c)) as aggravating factors.
He explained that evidence of mitigation was nonexistent under factors (d) (extreme emotional or mental disturbance), (e) (victim participation or consent), (f) (reasonable belief in moral justification), and (h) (inability to appreciate criminality). These four factors were then explicitly referred to as "aggravating." As explained further below, the prosecutor also told jurors to consider factor (i) (age) and, to a lesser extent, factor (k) (character and background) as aggravating. Finally, factors (g) (duress) and (j) (accomplice status) were said to be irrelevant.
We reject defendant's claim that factor (i) was improperly identified as aggravating in this case. The prosecutor reminded jurors that defendant had undergone several potentially maturing "life experiences," including family support, therapy, and prison. The prosecutor was free to argue that defendant, who was 30 at the time of the crimes, was deserving of harsher treatment than a more youthful offender, because he had rejected the "opportunity to be socialized, . . . to understand the reasons for the rules, . . . to develop a sense of worth [towards] other human beings." (See People v. Lucky, supra, 45 Cal. 3d 259, 302 [either counsel may argue any "age-related inference" which reasonably informs penalty choice].)
As agreed by the parties, factors (d), (e), (f), (h), and (k) can only mitigate. While the prosecutor could properly point to the absence of mitigating evidence in these categories, he could not argue that such deficiency was itself aggravating. (People v. Ghent, supra, 43 Cal. 3d 739, 775 [1977 law]; People v. Rodriguez (1986) 42 Cal. 3d 730, 789-790 [230 Cal. Rptr. 667, 726 P.2d 113]; People v. Davenport (1985) 41 Cal. 3d 247, 288-289 [221 Cal. Rptr. 794, 710 P.2d 861].) Nevertheless, we can only assume the jury understood how to evaluate the absence of particular mitigating factors.
(See, e.g., People v. Douglas (1990) 50 Cal. 3d 468, 537-538 [268 Cal. Rptr. 126, 788 P.2d 640]; People v. Hamilton, supra, 48 Cal. 3d 1142, 1183-1186; People v. Bonin (1988) 46 Cal. 3d 659, 699-702 [250 Cal. Rptr. 687, 758 P.2d 1217]; People v. Keenan, supra, 46 Cal. 3d 478, 510-511; People v. Brown (1988) 46 Cal. 3d 432, 454-456 [250 Cal
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