How have the courts dealt with the absence of mitigation as an aggravating factor?

The People contend any challenge to the prosecutor's argument was waived by defendant's failure to timely object. (See People v. Daniels, supra, 52 Cal.3d at pp. 890-891, 277 Cal.Rptr. 122, 802 P.2d 906.) We need not resolve that point because, [7 Cal.4th 1126] even assuming defendant preserved the issue, we agree with the People's further argument that any error was harmless. The prosecutor's

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6. Absence of Mitigation as an Aggravating Factor

Defendant next claims that because the jury instructions did not inform the jury which factors were mitigating and which were aggravating, a reasonable jury would have construed the instructions to permit finding the absence of a mitigating factor as a circumstance in aggravation. ¹³ We find nothing ambiguous in the jury instruction. The jury was instructed to consider a list of factors "if applicable" and that admonition was repeated later when the jury was told to "take into account and be guided by the applicable factors...." (See People v. Cummings (1993) 4 Cal.4th 1233, 1326, 18 Cal.Rptr.2d 796, 850 P.2d 1.) We assume the jury followed these instructions and determined that mitigating factors for which there was no evidence were simply not "applicable."