P. v. Metzger and Hernandez
Filed 1/21/09 P. v. Metzger and Hernandez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, Plaintiff and Respondent, v. BURTON ROY METZGER AND DARICK OMAR HERNANDEZ, Defendant and Appellant. | 2d Crim. No. B198096 (Super. Ct. No. 1192456) (Santa Barbara County) ORDER MODIFYING OPINION AND DENYING REHEARING (No Change in Judgment) |
THE COURT:
It is ordered that the opinion filed herein on December 29, 2008, be modified as follows:
1. At the end of the last paragraph on page 14 add the following:
CALCRIM 625 was a corrected statement of the law based on Metzger's and Hernandez's liability as direct perpetrators. Because Metzger was charged as the perpetrator of a willful, premeditated and deliberate murder, evidence of voluntary intoxication was admissible "solely on the issue of . . . whether the defendant premeditated, deliberated, or harbored express malice aforethought." ( 22, subd. (b; see People v. Mendoza, supra, 18 Cal.4th at p. 1125.
Metzger was also prosecuted on an aider and abettor theory which required a different instruction on voluntary intoxication. (See People. V. Mendoz, supra, 18 Cal.4th at pp. 1133-1134.) The trial court gave CALCRIM 404 but was not "required to parse out those elements of each crime charged for which the evidence could be considered or distinguished between the knowledge and the intent requirements. (Id.at p. 1134.)
2. On line 2 of page 15, delete the words "The trial court also gave CALCRIM 404 which" and insert CALCRIM 404. The second sentence will then read: CALCRIM 404 stated that the jury could consider Metzger's intoxication in determining whether he knew Hernandez intended to murder Kegler and whether he intended to aid and abet Hernandez.
There is no change in the judgment.
Respondent Metzger's petition for rehearing is denied.
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