Opinion
B159843.
10-24-2003
THE PEOPLE, Plaintiff and Respondent, v. ERLINDO RODRIGUEZ, JR., Defendant and Appellant.
MODIFICATION OF OPINION AND ORDER DENYING PETITION FOR REHEARING
THE COURT:
The opinion in the above entitled matter filed on September 29, 2003, is modified to reflect the following changes:
1. Page 5, replace line three to end of paragraph beginning with "74 Cal.App.4th 382 . . . required `in the present case].)" with the following:
74 Cal.App.4th 382, 389.) The same rule applies when determining whether the trial court should have instructed the jury with CALJIC No. 9.29 that a police officers use of excessive force negates the performance of duty element of the offense of assaulting an officer. (People v. Olguin (1981) 119 Cal.App.3d 39, 45-46 [viewing instruction that excessive force negates the performance of duty element of the prosecutions case as part of the self-defense theory; instruction was warranted by the evidence]; People v. White (1980) 101 Cal.App.3d 161, 167 [where defendant relied on self-defense theory and there was evidence of officers excessive force, instruction that officer using excessive force was not performing his duties was required "in the present case"].)[Fn. 3 and text]
2. Page 5, second paragraph, replace fourth line to end of paragraph beginning with "self-defense theory . . . theory of the case." with the following:
self-defense theory or response to unlawful use of force, and any such instructions would have been inconsistent with his theory of the case.[Fn. 4 and text]
[end of modifications; no change in judgment]
The appellants petition for rehearing is denied. --------------- Notes: RUBIN, J. COOPER, P.J. BOLAND, J.