What is the effect of section 190.20 of the California Criminal Code on factors (h) and factor (b) in determining a defendant's sentence for assault with a deadly weapon and battery on a peace officer?

We conclude the jurors were not reasonably likely (People v. Samayoa, supra, 15 Cal.4th at p. 833, 64 Cal.Rptr.2d 400, 938 P.2d 2) to be misled in this manner. Neither the challenged CALJIC No. 4.20 nor the instruction on factor (h) stated or implied that evidence of intoxication during the factor (b) offenses could not be considered in mitigation, and such an inference would have been contrary to the court's other instructions on determination of penalty. Thus, the jurors were told that they should make their penalty decision based on all the evidence, that they could consider factor (b) evidence aggravating or

[14 Cal.Rptr.3d 258]

mitigating, and that they were free, in general, "to assign whatever moral or sympathetic value you deem appropriate to each and all of the various factors you are permitted to consider" and to include in their weighing "any sympathetic or other aspect of the defendant's character or record that the defendant offers as a basis for a sentence less than death." (Italics added.) The distinction between a legal excuse or justification for criminal behavior and a circumstance mitigating its moral culpability was also explained, albeit in the context of section 190.3, factor (a), circumstances of the capital offense. A juror attentive to the instructions as a whole was not reasonably likely to conclude that because voluntary intoxication was not a legal defense to assault with a deadly weapon or battery on a peace officer it could not be considered as a mitigating circumstance bearing on defendant's history.

[14 Cal.Rptr.3d 258]

We observe as well that defendant did not request any clarification or modification of the now challenged instruction, which he concedes correctly states the law. The court had no duty to modify the instruction in the absence of such a request. (People v. Davis (1995) 10 Cal.4th 463, 543, 41 Cal.Rptr.2d 826, 896 P.2d 119.) Nor was there any potential for prejudice. Only as to the 1979 arrest incident was there any evidence of defendant's intoxication.¹⁷ That battery was the least serious of the factor (b) violent crimes presented the violence consisted of defendant kicking the officer in the leg and any restriction the jury might have understood to apply to consideration of the circumstances of that offense could not, on any standard, be considered prejudicial given the two prior assaults and the circumstances of the capital crimes.