What is the effect of the Attorney General's objection to a defendant's special instruction in a sexual assault case?

The proposed instruction was indeed argumentative, in that it invited the jury to draw inferences favorable to only one party from the evidence presented at trial by informing the jury that any mitigating evidence might carry dispositive weight, without also advising that a single aggravating circumstance could have the same effect. (People v. Hines, supra, 15 Cal.4th at p. 1069, 64 Cal.Rptr.2d 594, 938 P.2d 388; People v. Mickey (1991) 54 Cal.3d 612, 697, 286 Cal.Rptr. 801, 818 P.2d 84.) Contrary to defendant's argument, the prosecution's failure to request its own special instruction remedying that deficiency did not "waive" its objection to defendant's proposed instruction. Having thus concluded the trial court properly sustained the prosecution's objection to defendant's

[135 Cal.Rptr.2d 598]

proposed instruction on this ground, we need not address the Attorney General's contention that the instruction was also objectionable as duplicative.

[135 Cal.Rptr.2d 598]