# People v. Lemus

> California Court of Appeal · August 1, 1988 · 203 Cal. App. 3d 470

URL: https://www.frixlaw.com/law-library/cases/9723713

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. TEODORO LEMUS, Defendant and Appellant; THE PEOPLE, Plaintiff and Respondent, v. JUAN LEMUS, JR., Defendant and Appellant
- **Court:** California Court of Appeal
- **Decided:** August 1, 1988
- **Citations:** 203 Cal. App. 3d 470; 249 Cal. Rptr. 897; 1988 Cal. App. LEXIS 901
- **Precedential status:** Published
- **Opinion:** Concurrence by Benke
- **Judges:** Benke, Scherer, Kremer
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9723713

## Opinion text

BENKE, J.
I concur in the result.
The rule of People v. Modesto (1963) 59 Cal.2d 722 [ 31 Cal.Rptr. 225 , 382 P.2d 33 ], which rests upon the California Constitution, requires the result reached herein. On this basis I agree with the majority opinion. However, I am reluctant to agree that Rose v. Clark (1986) 478 U.S. 570 [ 92 L.Ed.2d 460 , 106 S.Ct. 3101 ], and People v. Lee (1987) 43 Cal.3d 666 [ 238 Cal.Rptr. 406 , 738 P.2d 752 ], which embody federal principles, require per se reversal in this case, where an instruction not involving an element of the offense is involved.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9723713. Public record. Not legal advice.