P. v. Mayfield

P. v. Mayfield

Filed 10/15/08 P. v. Mayfield CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. BYRON WALTER MAYFIELD et al., Defendants and Appellants.

E041402 (Super.Ct.No. INF046479) ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]

The petition for rehearing is denied. The opinion filed in this matter on September 15, 2008, is modified as follows:

1. On page 23, in the first sentence of the first full paragraph, the word contends is deleted and the words and Rimoldi contend are to be inserted after the word Lewis so the sentence reads:

Lewis and Rimoldi contend that the instructions do not adequately convey the idea that provocation can prevent a defendant from premeditating and deliberating because, unlike CALJIC No. 8.20, CALCRIM No. 521 fails to make that idea explicit.

2. On page 25, in the first sentence of the first paragraph, the words also contends are deleted and the words and Rimoldi contend are to be inserted after the word Lewis. At the beginning of the second sentence of the first paragraph, the words He contends are deleted and the words They contend are to be inserted. Footnote No. 9 is to remain at the end of the paragraph, unchanged. The paragraph as modified should read:

Lewis and Rimoldi contend that the instructions were confusing because although CALCRIM No. 570 explained in great detail the objective test applicable to heat of passion voluntary manslaughter, there was no comparable instruction which explained the standard the jury was to use to determine whether provocation precluded a finding of premeditation and deliberation for purposes of mitigation from first degree murder to second degree murder. They contend that in the absence of the parallel instruction on second degree murder, the jury would necessarily have assumed that the same test applied in both instances.

3. On page 28, in the paragraph continuing from the previous page, the following sentence is deleted:

Rimoldi asserts that this is the case, but he provides no reasoning in support of his argument.

Except for this modification, the opinion remains unchanged. This modification does not effect a change in the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Gaut

J.

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