Modification: People v. Barner

THE PEOPLE,

Plaintiff and Respondent,

v.

OSCAR DERAN BARNER,

Defendant and Appellant.

No. C095986

(Super. Ct. No. 18FE015537)

California Courts of Appeal

Third Appellate District

(Sacramento)

Filed March 26, 2024

CERTIFIED FOR PARTIAL PUBLICATION*

·  Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of Part III of the Discussion.

ORDER MODIFYING OPINION AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

APPEAL from a judgment of the Superior Court of Sacramento County, Alyson L. Lewis, Judge. Affirmed as modified.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.

THE COURT:

It is ordered that the opinion filed herein on March 12, 2024, be modified as follows:

The last paragraph of section I (C) of the discussion, starting at the bottom of page 16, beginning "Accordingly, we conclude" is deleted and the following paragraph is inserted in its place:

Accordingly, we conclude that a new statement should be submitted with an amended order of commitment. The accompanying statement of calculation of the maximum term shall list the maximum term associated with each offense. This includes for count one: a 25 year-to-life term for assault with force likely to produce great bodily injury (§§ 245, subd. (a)(4), 667, subd. (e)(2), 667.5, subd. (c)(8), 1170.12, subds. (b)(1), (c)(2)(A)(ii)), with a three-year term for personal infliction of great bodily injury (§ 12022.7, subd. (a)), and two five-year prior conviction enhancements (§ 667, subd. (a)). For count two: a four-year term for battery by force resulting in serious bodily injury (§ 243, subd. (d)) plus two five-year prior conviction enhancements (§ 667, subd. (a)), stayed pursuant to section 654. (See People v. Tua (2018) 18 Cal.App.5th 1136, 1143.) The order of commitment must be amended to reflect a maximum commitment term of life.

There is no change in the judgment.

Respondent's petition for rehearing is denied.

BY THE COURT:

/s/

EARL, P. J.

/s/

KRAUSE, J.

/s/

WISEMAN, J. **

** Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.