Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Los Angeles County Super. Ct. No. VA067520
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]
DOI TODD, Acting P.J. ASHMANN-GERST, J. CHAVEZ, J.
THE COURT:
It is ordered that the opinion filed herein on October 11, 2007, be modified as follows:
On page 22 of the opinion, after the first full paragraph, ending in “ . . . no constitutional violations occurred,” insert the following new and separate paragraph:
In any event, the prosecutor’s argument reveals that he was not relying on the natural and probable consequences doctrine. Rather, he attempted to relate the facts of the case to the elements of second degree implied malice murder with appellant as an aider and abettor. The prosecutor argued that the intentional act element of that crime was satisfied by the act of pointing the gun, or brandishing, which was committed by Ricardo. If this theory was not a valid one, the prosecutor’s argument on this point can be characterized at most as prosecutorial misconduct rather than error on the part of the trial court. Where the trial court properly instructs the jury, but the prosecutor misstates the law, “such an error would merely amount to prosecutorial misconduct . . . during argument, rather than trial and resolution of the case on an improper legal basis.” (People v. Morales (2001) 25 Cal.4th 34, 43, see also ibid. [distinguishing People v. Guiton (1993) 4 Cal.4th 1116 and People v. Green (1980) 27 Cal.3d 1, in which “the [trial] court presented the state’s case to the jury on an erroneous legal theory or theories”].) In this case, the trial court properly instructed the jury on the elements of second degree implied malice murder, on the roles played by different principals in the commission of a crime, and on the mental states and circumstances required to find that a defendant acted as an aider and abettor. (CALJIC Nos. 3.00, 3.01, 8.31.) Notably, appellant made no objection to the prosecutor’s argument on this point and has therefore waived any issue regarding prosecutorial misconduct on appeal. (People v. Osband (1996) 13 Cal.4th 622, 696.)
There is no change in the judgment.
Appellant’s petition for rehearing is denied.