Modification: People v. Warren

THE PEOPLE,

Plaintiff and Respondent,

v.

GUY BARRETT WARREN,

Defendant and Appellant.

No. F073159

(Super. Ct. No. BF160518A)

California Courts of Appeal

Fifth Appellate District

Filed July 19, 2018

ORDER MODIFYING OPINION AND DENYING REHEARING

[No Change in Judgment]

THE COURT:

IT IS ORDERED that the petition for rehearing filed by the People on July 5, 2018, is denied. Pursuant to California Rules of Court, rule 8.264(c)(1), the published opinion filed in this appeal on June 21, 2018, is modified in the following particulars. The page numbers in this order refer to the pagination of the slip opinion.

1. On page 10, delete the second full paragraph (beginning "The People argue ...").

2. Replace that paragraph with the following:

The People argued in their brief that reclassification of a prior offense is not an obstacle to applying section 667.5, subdivision (b). They maintained that a section 667.5, subdivision (b) enhancement is "based on the existence of a prior prison term and its failure to deter [a defendant's] criminal behavior, neither of which is altered by the redesignation of his felony as a misdemeanor."

3. After the above new paragraph, add the following as a footnote:

On July 5, 2018, after our original opinion in this case was filed, the People filed a petition for rehearing, asking us to modify the opinion to indicate that, at oral argument, they withdrew this argument and conceded that former felonies reclassified as misdemeanors under Proposition 47 cannot support enhancements under section 667.5, subdivision (b). We denied rehearing but modified the opinion to reflect the concession.

4. On page 10, replace "The People's argument ..." at the beginning of the first sentence of the last paragraph with "This argument ..."

5. On page 11, delete the first sentence of the first full paragraph (beginning "There is a further ...").

6. Replace that sentence with the following:

There is a further consideration that undermines the position in the People's brief and supports Warren's position.

7. On page 13, delete the first sentence of the first full paragraph (beginning "The People attempt ...").

8. Replace that sentence with the following:

In their brief, the People attempted to support their position by citing People v. Coronado (1995) 12 Cal.4th 145 (Coronado).

9. On page 14, in the first sentence of the third paragraph, delete the phrase "the People's contention" and replace it with "the contention."

Except for the modifications set forth above, the opinion previously filed remains unchanged. The modifications do not include a change in the judgment.

SMITH, J.

I CONCUR:

PEÑA, J.

I concur in the modifications to part one of the majority opinion, and respectfully reaffirm my dissent to part two as previously set forth.

POOCHIGIAN, Acting P.J.