P. v. Barron

Filed 4/24/07 P. v. Barron CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE COURT:

It is ordered that the opinion filed herein on March 27,2007, be modified as follows:

On page 8, the second full paragraph beginning with the word "Here" and ending on line 3 of page 9 with the word "counsel" is deleted and the following paragraph is inserted in its place:

Here the only element of the assault offenses that rested substantially or entirely on circumstance evidence is intent. The other elements were established by direct evidence. Appellant, in his opening brief, states that the prosecution relied on circumstantial evidence only to prove intent. If so, appellant was entitled to a CALJIC 2.02 instruction, not CALJIC 2.01 which is a more general instruction and would have confused the jury. (People v. Hughes (2002) 27 Cal.4th 287, 347; People v. Anderson (2001) 25 Cal.4th 543, 582.)

In his petition for rehearing, appellant complains that the CALJIC 2.02 instruction only referred to the conspiracy count (count 4). We reject the argument that the trial court had a sua sponte duty to modify CALJIC 2.02 or give a separate circumstantial evidence instruction on the assault counts. "The fact that the elements of a charged offense include mental elements that must necessarily be proved by inferences drawn from circumstantial evidence does not alone require an instruction on the effect to be given such evidence . . . ." (People v. Wiley (1976) 18 Cal.3d 162, 175; see e.g., People v. Morrison (1979) 92 Cal.App.3d 787, 794.) The alleged instructional error, if any, did not prejudice appellant, deny him due process, or violate his constitutional right to present a defense. (See e.g., People v. Jackson (1996) 13 Cal.4th 1164, 1224 [failure to instruct on circumstantial evidence where there is no sua sponte duty does not violate due process or constitute ineffective assistance of counsel].)

Appellant's petition for rehearing is denied.

[There is no change in the judgment.]

NOT FOR PUBLICATION

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.