Opinion
NOT TO BE PUBLISHED
Super.Ct.No. FSB040007
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
RICHLI J.
The petition for rehearing is denied. The opinion filed in this matter on December 19, 2007, is modified as follows:
1. On page 3, immediately following the third paragraph, the following paragraphs are inserted:
5. Defendant Reyes claims that the premeditation and deliberation finding on the attempted murder of Ector Ferreira must be reversed because the trial court failed to sua sponte instruct the jury to view his out-of-court statement made just prior to the shooting with caution
6. Both defendants contend that the prosecutor committed prejudicial misconduct during closing argument.
7. Both defendants claim that reversal is required because the trial court failed to instruct the jury to begin deliberations anew after a juror was replaced by an alternate.
2. On page 3, at the end of the fourth paragraph (enumerated No. 8), the parenthetical “(RAOB 43-50.)” is deleted.
3. On page 3, at the end of the fifth paragraph (enumerated No. 9), the parenthetical “(RAOB 51.)” is deleted.
4. On page 4, at the end of the first full paragraph, the parenthetical “(RT 258, 533.}” is deleted.
5. On page 15, at the end of the first paragraph in part III, the parenthetical “(FAOB 61; RAOB 11-24.)” is deleted.
6. On page 25, footnote 8 is modified to read as follows:
Both defendants refer to statements made by Denise Rojas during a videotaped interview with Detective Granado conducted prior to trial. The transcription of the interview was included in the clerk’s transcript on appeal and was admitted as an exhibit at trial. The trial court admonished the jurors that they should rely on the videotape. Neither party asked that the videotape be transferred to this court pursuant to California Rules of Court, rule 8.224. This court, on its own motion, has had the videotape transferred to it; we have reviewed the tape and find that the transcript is accurate. We have considered the statements made by Rojas in that interview in resolving the instant appeal.
7. On page 32, the heading for part VI, “INSUFFICIENT EVIDENCE OF PREMEDITATION AND DELIBERATION FOR THE ATTEMPTED MURDER OF ECTOR” is deleted and replaced with the heading, “HARMLESS INSTRUCTIONAL ERROR.”
Except for this modification, the opinion remains unchanged. This modification doe not effect a change in the judgment.
We concur:
HOLLENHORST, Acting P.J., KING, J.