complained that the prosecutor remarked upon the lack of certain mitigating factors. The trial court overruled the objection. The record reflects that in light of Cona-han’s presentation of mitigating evidence, the prosecutor commented in his closing argument that there was no evidence presented regarding other possible mitigators. He pointed out that Conahan did not show that he suffered from prior child abuse or drug abuse, or had a history of mental difficulties and mistreatment. In making such a remark, the prosecutor was commenting upon the lack of certain mitigating evidence. His comment did not implicate the defendant’s right to remain silent; rather, it concerned the dearth of mitigating evidence. See People v. Lewis, 25 Cal.4th 610, 106 Cal.Rptr.2d 629, 22 P.3d 392, 433 (2001) (<HOLDING>). We find that the assistant state attorney’s
holding that comment by prosecutor in closing argument that defense counsel did not produce evidence of the defendants innocence was not a comment on the defendants failure to testify holding that the prosecutors reference to the nonexistence of mitigating evidence was not a comment on the defendants failure to testify holding the prosecutors statements were not an inappropriate comment on the defendants failure to testify but rather a comment on the defendants failure to present convincing evidence to support his defense holding that failure to object to prosecutors comment on defendants failure to testify preserved nothing for appellate review holding that prosecutors comment on defendants failure to testify constituted plain error affecting the defendants substantial rights