Opinion
No. B188097
4-24-2007
THE PEOPLE, Plaintiff and Respondent, v. EDWARD ERIC BARRON, Defendant and Appellant.
NOT TO BE PUBLISHED
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]
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].)
Appellants petition for rehearing is denied.
[There is no change in the judgment.]