Opinion
F061065 Super. Ct. No. F08906244
02-16-2012
THE PEOPLE, Plaintiff and Respondent, v. MANUEL GEORGE MANCILLA, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
MODIFICATION OF OPINION ON DENIAL OF REHEARING [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on January 19, 2012, be modified as follows:
1. On page 2, line 2, after the words "We affirm." at the end of the first paragraph, add the following footnote, which will require renumbering of all subsequent footnotes:
fn After the filing of our opinion, our Supreme Court filed an opinion holding that, where the defendant contested whether he acted with reckless indifference to human life and the record supported a reasonable doubt as to whether he did, the court's erroneous omission of that element from the instruction on the felony murder special circumstance was not harmless beyond a reasonable doubt. (People v. Mil (2012) 53 Cal.4th 400 [2012 Cal. LEXIS 386; 2012 WL 171471]). After the filing of that opinion, Mancilla filed a petition for rehearing arguing that as to the court's inclusion in the charge of the jury of instructions on mutual combat, provocation, and consciousness of guilt Mil requires us
"to analyze prejudice from the standpoint of the defendant's case, that is whether the jury might have interpreted the facts as urged by the defendant." (Seepost, parts 2, 3, and 5, respectively.) In the answer to the petition for rehearing, the Attorney General argues that Mancilla's "reliance [on] Mil is misplaced because that case dealt with the failure to fully instruct on elements; it did not attempt to analyze the situation raised on this appeal whether the inclusion of instructions adversely affected a defendant's substantial rights." (Italics in original.) "And, in fact," the Attorney General summarizes, "the lesson to be gleaned from Mil is that when there is conflicting evidence, instructions should be given, not omitted." That is so here.
2. On page 2, add the following text to the end of former footnote 1 (now footnote 2):
The discussion sets out the facts, issue by issue, as relevant. (See post, parts 1-5.)
3. On page 13, in the third sentence of the first full paragraph, substitute "consciousness of guilt" for "consciousness of flight."
This modification does not effect a change in the judgment.
The petition for rehearing is denied.
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Gomes, Acting P.J.
WE CONCUR:
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Dawson, J.
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Kane, J.