Is there any case law where a defendant argued that the absence of a number of statutory mitigating factors should be considered aggravating?

California, United States of America


The following excerpt is from People v. Visciotti, 2 Cal.4th 1, 5 Cal.Rptr.2d 495, 825 P.2d 388 (Cal. 1992):

34 In support of his claim that the jury was misled, defendant argues that the prosecutor also argued that the absence of some statutory mitigating factors should be considered aggravating. After the trial of this case we held in People v. Davenport (1985) 41 Cal.3d 247, 289-290, 221 Cal.Rptr. 794, 710 P.2d 861, that such argument was improper and should not be permitted in the future because it was likely to confuse the jury as to the meaning of the terms "aggravation" and "mitigation." It is not improper, however, to review each factor and the possible relevance of the evidence to finding it present.

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