Modification: People v. Abelino

THE PEOPLE,

Plaintiff and Appellant,

v.

EDGAR ABELINO et al.,

Defendants and Respondents.

No. A159088

(Del Norte County Super. Ct. No. CRPB195062)

California Courts of Appeal

First Appellate District

Division Four

Filed April 19, 2021

THE COURT:

It is ordered that the opinion filed herein on March 29, 2021, be modified as follows:

1. On page 18, in the second paragraph, the sentence beginning, "To the contrary, at least with respect to defendants Tagaban, . . . " is changed to:

To the contrary, at least with respect to defendants Tagaban, who had a gunshot wound, and Abelino, who had blood on his clothing, the magistrate commented that a more logical reading of the evidence was that they were "involved" in the assault on the officers or "in something."

2. On page 22, the sentence beginning, "Then, about 20 seconds later, . . ." and the following sentence beginning, "An officer appeared in the inmate's path and extended his arm, . . ." are changed to:

Then, about 20 seconds later, he got up and quickly moved toward the vehicle gate. An officer appeared in the inmate's path and extended his arm, the inmate stopped his forward progress, and, after a couple of seconds, the inmate got back down."

3. On page 23, the following paragraph and accompanying footnote are inserted between the two existing paragraphs:

In his petition for rehearing, Hernandez argues for the first time that even if he was the inmate in blue identified in the channel 5 video, the riot was over when he interacted with Contreras. We have reviewed the video evidence and believe it sufficient for a reasonable person to conclude that the riot had not fully ended when the conduct at issue occurred.

4. On page 23, after the first sentence of the paragraph added by modification No. 3 of this order, add as footnote 15 the following footnote, which will require renumbering of the subsequent footnote:

¹⁵ Hernandez claims he made this argument in his supplemental brief, but we do not read that brief as having clearly set forth this argument.

5. On page 23, the last sentence in footnote 14 beginning, "The People argued below and on appeal that Hernandez participated in a riot or . . . . " is replaced with:

The People introduced video evidence and testimony from Officer Contreras at the preliminary hearing and argued below and on appeal that Hernandez participated in the riot and was responsible for the natural and probable consequences thereof. In their motion to reinstate below, the People specifically argued that Hernandez lunged at an officer and took a bladed stance towards him, and, in their appellate briefing, the People again argued that Hernandez was seen threatening an officer after being told to get down.

There is no change in judgment.

The petitions for rehearing are denied.