Is the lying in the wait special circumstance constitutionally infirm because it duplicates an element of first degree murder?

12 We do not understand defendant to contend that the lying-in-wait special circumstance is constitutionally infirm because it duplicates an element of first degree murder. As defendant no doubt recognizes, a contention to this effect would be meritless. (Lowenfield v. Phelps (1988) 484 U.S. 231, ----, 108 S.Ct. 546, 552-553, 98 L.Ed.2d 568, 579.)

13 The major penalty phase contentions raised by defendant but not considered in this opinion are: (1) the trial court erred in denying defendant's motion for a new jury or additional voir dire at the penalty phase; (2) evidence of the solicitation of murder was improperly admitted; (3) the jury instructions permitted improper double counting of aggravating factors; (4) the prosecutor's reference during argument to a notorious death penalty case constituted prejudicial misconduct; (5) the jury instructions failed to adequately inform the jury of its responsibility to consider character and background evidence (see People v. Easley (1983) 34 Cal.3d 858, 878, fn. 10, 196 Cal.Rptr. 309, 671 P.2d 813); (6) the jury was improperly precluded from considering the psychological impact of the spousal rape prosecution as a circumstance in mitigation; (7) evidence regarding the manner in which death sentences are executed was improperly excluded; (8) an instruction on a defendant's right not to testify should have been given sua sponte; (9) an instruction to apply the reasonable-doubt standard to the weighing of aggravating and mitigating circumstances should have been given; (10) the death penalty is disproportionate and arbitrary under the facts of this case; (11) four prospective jurors were erroneously excluded for cause because of their views on the death penalty; and (12) the trial court erred in denying the automatic motion for modification of penalty under section 190.4, subdivision (e).

14 In a related contention, defendant maintains that the prosecutor improperly urged the jury to consider defendant's age as a factor in aggravation. (See People v. Rodriguez, supra, 42 Cal.3d 730, 789, 230 Cal.Rptr. 667, 726 P.2d 113.) As we have recently explained, however, either counsel may argue any age-related matter or inference suggested by the evidence or by common experience or morality that might reasonably inform the choice of penalty. (People v. Lucky (1988) 45 Cal.3d 259, 302, 247 Cal.Rptr. 1, 753 P.2d 1052.) The prosecutor's comments regarding defendant's maturity were permissible under this standard.

15 This quotation reveals how the prosecutor typically used the terms "aggravating factor" and "aggravating circumstance" interchangeably. Had the prosecutor drawn a clear distinction between the statutory factors of moral justification, duress, etc., which could only be mitigating, and circumstances shown by the evidence, which could be "aggravating" in the sense of rebutting other evidence tending to prove the factor, the prosecutor might possibly have avoided Davenport error (People v. Davenport (1985) 41 Cal.3d 247, 221 Cal.Rptr. 794, 710 P.2d 861).