Does a prosecutor's argument that the absence of specific mitigating factors constitute aggravation constitute prosecutorial misconduct?

Defendant complains that the prosecutor capitalized on the trial court's failure to delete mitigating factors by expressly arguing that the [45 Cal.3d 1034] absence of specific mitigating factors constituted aggravation. Although the prosecutor did not state that the mere absence of a mitigating factor itself constituted aggravation, he argued the evidence in such a manner as to contravene the spirit, if not the letter, of People v. Davenport (1985) 41 Cal.3d 247, 221 Cal.Rptr. 794, 710 P.2d 861, upon which defendant relies. (See also People v. Rodriquez, supra, 42 Cal.3d at 789-790, 230 Cal.Rptr. 667, 726 P.2d 113.) In essence, the prosecutor argued that certain otherwise mitigating factors should, on the facts of this case, be considered as aggravating. ²⁷

[755 P.2d 1049] Although the prosecutor's argument, insofar as it characterized factors (c), (d), (f), and (h) as aggravating, contravenes Davenport and Rodriguez, his comments do not constitute prosecutorial misconduct requiring reversal of the judgment. A timely objection and admonition could have cured any harm. ( People v. Green, supra, 27 Cal.3d 1, 27, 164 Cal.Rptr. 1, 609 P.2d 468.)