Opinion
Page 935a
144 Cal.App.4th 935a __ Cal.Rptr.3d __ THE PEOPLE, Plaintiff and Respondent, v. RONALD LEON BROCK, Defendant and Appellant. A108062 California Court of Appeal, First District, Fifth Division November 9, 2006San Mateo County Super. Ct. No. SC 054904
THE COURT:It is ordered that the opinion filed hereon on October 11, 2006 (143 Cal.App.4th 1266; __Cal.Rptr. 3d__), be modified as follows and the petition for rehearing is denied.:
At the end of the first paragraph under part VI. (Harmless Error), which starts on page 16 [143 Cal.App.4th 1282], with the phrase “The nature of this harmless error analysis” and ends on page 17 with the language “the conviction cannot stand,” following the citation “(People v. Green (1980) 27 Cal.3d 1, 69 [164 Cal.Rptr. 1].),” add as footnote 13 the following footnote, which will require renumbering of all subsequent
In a petition for rehearing, the People argue that the Green analysis may no longer be valid and rely on People v. Harris (1994) 9 Cal.4th 407, 424, footnote 11[37 Cal.Rptr.2d 200], where the court said the Green analysis “could be questioned.” The People contend that when the jury is given both a legally correct and a legally incorrect instruction on the elements of the crime, the proper harmless error test is: If the jury had been given only the proper instruction, is it clear beyond a reasonable doubt that the same conviction(s) would have resulted. As an intermediate appellate court, we are not free to anticipate a future change of direction by our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321].) In any event, based on the evidence presented and the prosecutor’s closing argument, we would find the instructional error reversible under any standard. (People v. Perez, supra, 35 Cal.4th at pp. 1236-1237 (conc. opn. of Brown, J.).)
This modification changes the judgment.