Modification: People v. Franco

THE PEOPLE,

Plaintiff and Respondent,

v.

ARTURO MONTOYA FRANCO,

Defendant and Appellant.

No. B324852

(Los Angeles County Super. Ct. No. A533690)

California Court of Appeal

Second Appellate District

Division Two

Filed February 22, 2024

ORDER MODIFYING

OPINION AND DENYING

REHEARING

NO CHANGE IN THE JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on January 25, 2024, be modified as follows:

1. At the end of the last paragraph on page 13, after the citation ending "(§ 290.5, subd. (a)(1).)," add as footnote 5 the following footnote, which will require renumbering of all subsequent footnotes:

⁵ For the first time in a petition for rehearing, the People seek a remand to conduct a second hearing at which the People would have a further opportunity to "relitigate future dangerousness," including by administering a Static-99 test. We disagree. The question of remedy was encompassed within the question presented on appeal, and the People's decision not to brief that issue does not entitle them to do so now; the merits briefing is the main event, not a dress rehearsal. We also see no reason to grant the People a second bite at the apple by ordering a second hearing: The People had the opportunity to present all evidence regarding defendant's future dangerousness at the first hearing; that the People decided not to do so previously was a tactical decision. The People's citation to People v. Barragan (2004) 32 Cal.4th 236 is inapt. Barragan held that the People can retry a "strike" allegation after an appellate court reverses a jury's "true" finding for insubstantial evidence. The issue here is different. Here, the trial court did not make a true finding on a sentencing enhancement that we conclude was insufficient. Rather, the People had the opportunity to present evidence and argument as to several statutorily enumerated factors bearing on whether "community safety would be significantly enhanced by requiring continued registration"; the People made the tactical decision to focus on one of those factors and not to present evidence on the others; and we have rejected the legal argument the People made regarding the factor on which it chose to focus. In this scenario, the People are not entitled to a mulligan to present new evidence on the other factors unaffected by our ruling on appeal.

There is no change in the judgment.

Respondent's petition for rehearing is denied.

ASHMANN-GERST, Acting P. J.

CHAVEZ, J.

HOFFSTADT, J.