D056446 Super. Ct. No. SCE283032
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
ORDER MODIFYING OPINION
AND DENYING PETITION FOR
[NO CHANGE IN JUDGMENT]
The petition for rehearing is denied.
It is ordered that the opinion filed August 10, 2011, be modified as follows:
1. On page 11, footnote 7, the citation "(Thomas, supra, 219 Cal.App.3d at p. 144.)" is replaced with the following:
"(See Flannel, supra, 25 Cal.3d at p. 686 [defendant's equivocal testimony that ' "[m]aybe" ' he was drunk and that it ' "could be possible" ' something happened was insufficient to warrant instruction on defense of diminished capacity due to intoxication]; Thomas, supra, 219 Cal.App.3d at p. 144 [testimony of witness who was intoxicated at time and could not remember many details of incident was insufficient to warrant instruction on defense of others].)"
2. At the end of the first full paragraph on page 12, after the citation "People v. Stephens (1935) 5 Cal.App.2d 33, 35)," add as footnote 9 the following footnote, which will require renumbering of all subsequent
"9 In his petition for rehearing, Brown contends he was entitled to assert defense of others even though the defense is inconsistent with his own trial testimony that he did not attack Malone and his argument that any touching of Malone was 'incidental and accidental' to his 'purpose' of defending Joshua by pulling him away from Malone. As Brown points out, it has been held that 'a defendant's assertion of accident may be disregarded by the jury in an appropriate case, and will not foreclose jury instruction on self-defense when there exists substantial evidence that the shooting was intentional (and met the other requirements of self-defense).' (People v. Villanueva (2008) 169 Cal.App.4th 41, 51, second italics added.) As we explained in the text, however, there was no substantial evidence that Brown's attack on Malone met the requirements of defense of another. Among other reasons, Brown could not reasonably have believed he needed to defend Joshua by knocking Malone down with such force as to shatter his right elbow."
There is no change in the judgment.
MCDONALD, Acting P.J.
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