Opinion
Page 871c
138 Cal.App.4th 871c __ Cal.Rptr.3d__ THE PEOPLE, Plaintiff and Respondent, v. ABIMAEL FLORES NAJERA, Defendant and Appellant. G034988 California Court of Appeal, Fourth District, Third Division April 20, 2006Super. Ct. No. 03CF2477
FYBEL, J.
It is ordered that the opinion filed herein on March 30, 2006 (138 Cal. App.4th 212; _ Cal.Rptr.3d_), be modified as follows:
On page 16 [138 Cal.App.4th 226, advance report, 2d par.], in the second full paragraph beginning “In People v. Manriquez (2005) 27 Cal.4th 547 [36 Cal.Rptr. 3d 340],” after the third sentence ending “judgment under an objective standard,” add a new footnote, which will require renumbering the existing footnote 2 to footnote 3, as follows:
2 Najera asserts the provocative conduct included not only name calling, but also the victim’s pushing Najera, which caused him to fall to the ground and prompted a fight between the two. We do not believe such a physical attack on Najera makes a difference in the analysis. Calling Najera a “jota” and pushing him is not sufficiently provocative under an objective standard to cause an ordinary person of average disposition to act rashly or without due deliberation.
This modification does not affect a change in the judgment. The petition for rehearing is DENIED.
WE CONCUR: SILLS, P. J., ARONSON, J.