Modification: People v. Hardy

THE PEOPLE,

Plaintiff and Respondent,

v.

KAWAN HASIMRASHID HARDY,

Defendant and Appellant.

No. A158179

(Alameda County Super.

Ct. No. 18CR015233)

California Courts of Appeal

First Appellate District

Division Two

Filed March 22, 2021

ORDER MODIFYING OPINION AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

Trial Judge: Hon. Thomas C. Rogers

Counsel:

Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Seth K. Schalit and Bridget Billeter, Deputy Attorneys General, for Plaintiff and Respondent.

BY THE COURT:

It is ordered that the opinion filed herein on February 24, 2021, be modified as follows:

On page 38, after the last sentence in the disposition that begins with with "The matter is remanded . . . .", add the following:

Following People v. Leahy (1994) 8 Cal.4th 587, we direct the trial court to conduct a Kelly/Frye hearing regarding count 5 in accordance with our opinion. If, at the conclusion of the hearing, the trial court concludes there is sufficient basis to properly admit the Shotspotter evidence previously presented, the court should reinstate the judgment. If the trial court determines the evidence is insufficient to properly admit the Shotspotter evidence presented, then the court may order a new trial, if the People so elect. If the judgment is reinstated, or a new trial ordered, appellate review will be available to the parties regarding the trial court's ruling, limited to any new issues not previously resolved in this opinion. (See Leahy, at pp. 612-613.) Also, should the trial court rule there is insufficient evidence to properly admit the Shotspotter evidence presented, nothing in this opinion is intended to preclude the People from pursuing entry of a judgment of conviction on count 5 for a lesser included offense, including on the accompanying enhancement, instead of retrying that count, under People v. Kelly (1992) 1 Cal.4th 495, 528, if supported by law and the record in this case.

This modification does not change the judgment. The petition for rehearing filed by the People on March 9, 2021, is denied.

Dated

Acting P.J.