Can a jury in a sexual assault case amplify the distinction between factors (b) and (c) of section 190.3 of the California Criminal Code?

To begin with, the trial court did not err in failing to give an instruction amplifying the distinction between factors (b) and (c) of section 190.3. In the absence of a request by the defendant, a trial court is under no duty to give such an instruction sua sponte. (People v. Hamilton (1988) 46 Cal.3d 123, 146, 249 Cal.Rptr. 320, 756 P.2d 1348.) In this case, the possibility of an amplifying instruction was discussed on April 29, 1988, prior to the commencement of jury selection, when the trial court ruled that evidence of defendant's accessory conviction was admissible. At that point, the trial court acknowledged defense counsel's stated concerns that the jury be properly instructed on the evidence, but told counsel they would address the issue when it came time to decide upon instructions. When such time arrived, however, defense counsel failed to renew his concerns or to press for an appropriate instruction, and the issue apparently was never discussed [8 Cal.4th 1190] again. ⁸⁸ Under these circumstances, the trial court had no duty to give such an instruction sua sponte.

Defendant's claim regarding the prosecutor's argument fares no better. To the extent defendant is claiming that the prosecutor made impermissible and misleading arguments to the jury, his failure to object and to request a curative admonition waives the claim on appeal. (People v. Noguera, supra, 4 Cal.4th at p. 638, 15 Cal.Rptr.2d 400, 842 P.2d 1160.) In any event, the claim is without merit. We have reviewed the record and have determined that the prosecutor's argument clearly distinguished the two factors, and never suggested that the jury could "double-count" the conduct underlying the incident. No violation of defendant's state or federal constitutional rights appears.

16. Instructions Regarding Consideration of Unadjudicated Offenses