P. v. Glenn

Filed 3/27/06 P. v. Glenn CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE COURT:

The opinion filed February 22, 2006, is modified as follows:

On page 5 of the slip opinion, following the second full paragraph that ends with the phrase, "cannot say on this record that the exclusion of his opinion was harmless beyond a reasonable doubt," the following paragraph is inserted:

"The People argue that the exclusion of Flowers' testimony was not of constitutional magnitude and is instead subject to review under the less stringent standard for assessing the prejudicial effect of state law error, which asks whether it is reasonably probable that the result would have been different absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) Ordinarily, the exclusion of defense evidence does not violate a defendant's federal constitutional rights unless it amounts to the deprivation of an entire defense or a critical portion thereof. (People v. Bradford (1997) 15 Cal.4th 1229, 1325; People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317.) But in this case, Flowers was the only defense witness on the issue of whether the drugs were possessed for sale or for personal use. The exclusion of his expert testimony deprived appellant of a critical portion of his defense and is appropriately analyzed as federal constitutional error."

There is no change in the judgment.

Respondent's petition for rehearing is denied.

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