In what circumstances will a jury reject a defendant's Special Instruction No. 3 in a sexual assault case?

A trial court is not required to give pinpoint instructions that merely duplicate other instructions. (People v. Bolden, supra, 29 Cal.4th at p. 558, 127 Cal. Rptr.2d 802, 58 P.3d 931.) The second paragraph of Instruction No. 3 directed the jury to find the sodomy special circumstance not true if it found it was "reasonably possible" the decedent was dead at the time the act of sodomy was committed, notwithstanding evidence she was alive. The third paragraph of Instruction No. 3, in essence, required the jury to find the victim was alive beyond a reasonable doubt before it found the sodomy special circumstance true. Both proposed instructions were duplicative of the other instructions given, including, among others, the reasonable doubt instruction (CALJIC No. 2.90) and defendant's Special Instruction No. 1 (Instruction No. 1). This instruction informed the jury that, to find the sodomy special circumstance true, it must find the victim was alive when sodomy was committed. Also apparently duplicative was the second paragraph of Instruction No. 4, the intention of which appears to have been to instruct the jury that penetration with a foreign object did not constitute sodomy, a subject already covered in defendant's Instruction No. 1, which stated, in part, "If you find that penetration of the anus in this case was with a foreign object, you may not find the sodomy special circumstance to be true," and in the reasonable doubt instruction.

We find, therefore, that the trial court correctly rejected defendant's proposed instructions.