Modification: People v. Son

THE PEOPLE,

Plaintiff and Respondent,

v.

TROY SON,

Defendant and Appellant.

No. G057657

(Super. Ct. No. 15WF1099)

California Courts of Appeal

Fourth Appellate District

Division Three

Filed November 6, 2020

It is hereby ordered that the opinion filed on October 19, 2020, be modified as follows:

On page 14, delete the first sentence of the last paragraph, which reads, "Our resolution of this issue resolves the remainder of the appeal."

On page 14, after the last full paragraph, add the following new heading and paragraph:

Federal Due Process

Finally, defendant argues the above alleged errors constitute a violation of his federal due process rights, even if not reversible under state law. The argument is meritless. The narration of the video was admissible under state law and the prosecutor's second-shot example was harmless under state law. Neither of these rulings, under the circumstances of this case, rendered the trial "fundamentally unfair." (See People v. Partida (2005) 37 Cal.4th 428, 439 ["[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair]; People v. Caldwell (2013) 212 Cal.App4th 1262, 1274 ["A prosecutor's conduct violates the due process clause of the Fourteenth Amendment to the United States Constitution when the prosecutor's misconduct renders the trial 'fundamentally unfair'"].) As explained, neither the admission of the evidence, nor the argument of the prosecutor, came close to rendering this trial fundamentally unfair.

There is no change in the judgment.

The petition for rehearing is DENIED.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.