People v. Hughes (2002)

[No. S017869. Apr. 10, 2002.]

THE PEOPLE, Plaintiff and Respondent, v. KRISTIN WILLIAM HUGHES, Defendant and Appellant.

[Modification fn. * of opinion (27 Cal.4th 287).]

THE COURT.-

The opinion herein, appearing at 27 Cal. 4th 287, is modified as follows:

1. The third sentence of the second full paragraph at 27 Cal.4th at page 335–which currently provides, “It was not; false statements by a defendant [fn. 6] are admissible to demonstrate consciousness of guilt (People v. Kimble (1988) 44 Cal. 3d 480, 495-496), and the trial court did not err in allowing the admission of this testimony to prove intent to kill, as well as the commission of the offenses of robbery, burglary, and forcible sodomy, and the various special circumstances alleged.”–is modified to read as follows: “It was not; false statements by a defendant [fn. 6] are admissible to demonstrate consciousness of guilt. (People v. Kimble (1988) 44 Cal. 3d 480, 495-496.)” Footnote 6 is unchanged.

2. The statutory citations in the first partial paragraph at 27 Cal.4th at page 352–which currently provide, “(E.g., ?? 243.4 [sexual battery], 288 [forcible lewd or lascivious act], 289 [forcible sexual penetration].)”–are modified to read as follows: “(E.g., ?? 243.4 [sexual battery], 289 [forcible sexual penetration].)”

3. The second and third full paragraphs at 27 Cal.4th at p. 382–which currently provide, “As an initial matter, this point is waived by defense counsel’s failure to object on this ground below. (Evid. Code, ? 353; Jackson, supra, 13 Cal. 4th 1164, 1235.) [?] Assuming the issue has been preserved, the trial court’s misinstruction was error, and as explained below, the question of prejudice is somewhat close.”–are deleted and replaced with the following: “The trial court’s misinstruction was error, and as explained below, the question of prejudice is somewhat close.”

4. The last sentence of the last full paragraph at 27 Cal.4th at p. 384–which currently provides, “Or, stating the issue more accurately, because the claim was waived, [27 Cal. 4th 825b] no ineffective assistance of counsel is established.”–is deleted. Footnote 24 is moved to the previous sentence after the word “harmless” and is otherwise unchanged.

The modification does not affect the judgment.

FN *. This modification requires the movement of text affecting pages 335-339 and 382-407 of the bound volume report.