THE PEOPLE v. TAVARON DONTA MITCHELL (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ORDER MODIFYING OPINION AND DENYING REHEARING

It is ordered that the opinion filed herein on July 15, 2011, be modified as follows:

1. On page 8, at lines 2 and 3, the word “burglary” is changed to the word “theft” so the relevant sentence reads:

“Defendants contend the trial court was required to instruct the jury, sua sponte, on conspiracy to commit theft because there was substantial evidence tending to show the intended crime was theft rather than robbery.”

2. On page 9, at lines 9 and 12, the word “burglary” is changed to the word “theft” so the relevant sentence reads:

“In sum, the evidence at trial provided substantial evidence the intended crime was theft, not robbery.   Although the jurors need not have believed Bourgeois's testimony, their instructions should have enabled them to give it due consideration by offering them the alternative verdict of conspiracy to commit theft.”

There is no change in the judgment.

Respondent's petition for rehearing is denied.

THE COURT: