Opinion
B195775
5-6-2008
THE PEOPLE, Plaintiff and Respondent, v. MOISES TOMAS VALERA, 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NOT TO BE PUBLISHED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 April 11, 2008, be modified in the following particulars:
1. On page 6, delete the first sentence under "II. Prosecutorial Misconduct" and in its place, the following:
Valera argues that the prosecutor committed misconduct in her closing argument by misleading the jury concerning facts outside the record.
2. On page 7, third sentence under the first full paragraph of the typed opinion, add the word "apparently" between "prosecutor" and "knew" so that the sentence now reads:
Moreover, the prosecutor apparently knew all of this, because she made use of certain portions of the transcript of the civil trial during cross-examination.
3. On page 8, delete the first two sentences under the first full paragraph, and in their place, the following:
The prosecutor in this case committed misconduct by both apparently deliberately misstating facts and referring to facts not in evidence. The prosecutor told the jury that Valeras consent defense was something "that he came up with yesterday on the stand," but the prosecutor apparently knew that was not true—Valera had given testimony supporting his consent defense before this prosecution began.
4. On page 9, last sentence in the first full paragraph, insert the word "apparently" between "prosecutors" and "deliberately" so the sentence now reads:
But we see nothing "fair" in the prosecutors apparently deliberately misleading the jury on this point and then claiming after the fact that her argument would have been just as strong if she had told the truth.
5. On page 9, delete the first sentence in the second full paragraph, and in its place the following:
Third, respondent does not dispute that the prosecutor misstated facts and referred to facts not in evidence.
This modification does not have an effect on the judgment.
Respondents petition for rehearing is denied. --------------- Notes: MALLANO, Acting P. J. VOGEL, J. ROTHSCHILD, J.