Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Super. Ct. No. 05HF1351
ORDER MODIFYING OPINION AND DENIAL OF PETITION FOR REHEARING; NO CHANGE IN JUDGMENT
BEDSWORTH, ACTING P. J.
It is hereby ordered that the opinion filed herein on June 27, 2008, be modified as follows:
1. On page 7, in the second full paragraph, delete the last sentence that begins with “It may be that the error here was harmless . . .” and replace it starting in the same paragraph with the following:
“Nevertheless, the Attorney General argues these miscues were harmless. He correctly notes that the Watson standard of review (see People v. Watson (1956) 46 Cal.2d 818, 836 [judgment may not be reversed unless it is reasonably probable defendant would have received a more favorable result absent alleged errors]) applies in cases where the court erroneously fails to instruct on a lesser included offense. (People v. Breverman (1998) 19 Cal.4th 142, 164-178.) But here, the court did instruct on the lesser included offenses. And, when those instructions were not accurately represented in the verdict choices, the jury noticed the problem and asked for help. This shows the jury was focused on the distinction between the greater and lesser offenses.
“Unfortunately, though, the court’s explanation of this distinction was deeply flawed, and this created a very real danger of prejudice. For example, in telling the jury that count 1 was the greater offense, the court may have caused the jury to believe that, by convicting appellant of counts 1 and 2, it was convicting him of a greater and lesser offense, when actually it was convicting him of the two greater offenses. That possibility cannot be countenanced.
“The Attorney General points out that the prosecution alleged that, besides drinking and driving, appellant violated five different driving rules prior to the collision. This was a pivotal issue because the prosecution was required to prove the victim’s injuries were attributable to an illegal act — other than DUI — in order to support a conviction on the greater offenses. Appellant testified this was not the case. And the defense also presented expert testimony showing that due to the lighting and road conditions that existed at the time of the accident, the accident was virtually unavoidable.
“In short, the evidence in support of the greater offenses was not overwhelming. And the nature of the error in the verdict forms, the jury’s focus on that error, and the trial court’s subsequent tragicomic compounding of its verdict form fiasco, it is impossible to conclude that the error was harmless under any standard of review.”
2. On page 8, delete the second sentence that begins with “Then we held any error . . .” and replace it with the following sentence:
“Then we held any error in the court’s original instructions and subsequent oral instruction to the jury was effectively immaterial.”
3. On page 8, delete the fifth sentence that begins with “We simply cannot say . . .” and replace it with the following sentence:
“We simply cannot say that the trial court’s errors were harmless in this case.”
These modifications do not effect a change in judgment.
The petition for rehearing is DENIED.
WE CONCUR: O’LEARY, J., ARONSON, J.