Does a prosecutor improperly refer to prior criminal conduct not admitted as evidence in aggravation under section 190.3 of the California Criminal Code?

The prosecutor's argument was proper. On rebuttal, a prosecutor may refer to prior criminal conduct not admitted as evidence in aggravation under section 190.3 if it relates directly to a particular incident or character trait that defendant offered on his own behalf. (People v. Noguera (1992) 4 Cal.4th 599, 644-645, 15 Cal.Rptr.2d 400, 842 P.2d 1160.) Moreover, it is not reasonably likely that the jury understood the prosecutor's comments as advocating that it consider the negotiated plea itself as a factor in aggravation. (People v. Sanders, supra, 11 Cal.4th 475, 526, 46 Cal. Rptr.2d 751, 905 P.2d 420.)

Defendant contends the prosecutor improperly argued that although defendant's mother cried while on the stand, defendant was unmoved by his mother's emotion, suggesting that by his demeanor he had shown himself to be a hardened criminal who deserved to die. It is proper for a prosecutor, at the penalty phase at which the defendant has placed his or her character in issue as a mitigating factor, to make references to the defendant's facial demeanor apparent during the court proceedings. (People v. Heishman (1988) 45 Cal.3d 147, 197, 246 Cal. Rptr. 673, 753 P.2d 629.)