Can defense counsel request further instructions to instruct the jury that the absence of mitigation is not an aggravating factor?

The jury was properly instructed to rely on evidence. Appellant's reliance on an insanity or mental illness defense was not itself evidence. We see no possibility that the jury would misunderstand the instruction in the manner suggested by appellant. Nor would a reasonable juror fail to identify evidence of mental illness as mitigating. (People v. Benson, supra, 52 Cal.3d 754, 802, 276 Cal.Rptr. 827, 802 P.2d 330.) Thus, the failure of defense counsel to request further instructions cannot be deemed incompetent or prejudicial.

In sum, the record does not support appellant's assertion that the jury relied on an invalid aggravating factor.

d. Failure to instruct that absence of mitigation is not aggravation.

We held in People v. Livaditis (1992) 2 Cal.4th 759, 784, 9 Cal.Rptr.2d 72, 831 P.2d 297 that the court is not required to instruct that the absence of a mitigating factor is not itself aggravating, stating further: "Although that would be a correct statement of the law [citation], a specific instruction to that effect is not required, at least not unless the court or parties make an improper or contrary suggestion."