Can the absence of a mitigating factor be considered aggravating in determining the penalty issue?
California, United States of America
The following excerpt is from People v. Edelbacher, 254 Cal.Rptr. 586, 47 Cal.3d 983, 766 P.2d 1 (Cal. 1989):
2. Davenport error--Similarly, the prosecutor suggested that the absence of a mitigating factor could be deemed aggravating in deciding the penalty issue. (People v. Davenport (1985) 41 Cal.3d 247, 221 Cal.Rptr. 794, 710 P.2d 861.) As with the prosecutor's statement regarding defendant's background, any error here was not an evidentiary one but merely amounted to overzealous argument.
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