Opinion
Page 887b
107 Cal.App.4th 887b ___Cal.Rptr.2d___ THE PEOPLE, Plaintiff and Respondent, v. MAXIMINO NAVARRO, Defendant and Appellant. B148711 California Court of Appeal, Second District, Seventh Division April 14, 2003[Modification of opinion (106 Cal.App.4th 1444; 131 Cal.Rptr.2d 705) on denial of petition for rehearing.]
This modification requires editorial changes to the summary on page 1444 of the advance report. In the bound volume report, the first sentence in the second paragraph of the summary will be changed to read, "The Court of Appeal affirmed the judgment of conviction, modified the sentence by striking the 25-year-to-life enhancement term under Pen. Code, § 12022.53, subd. (d), and a parole revocation fine, remanded to the trial court with directions to impose a sentence enhancement under Pen. Code, former § 12022.5, subd. (b) (1) (discharging firearm at occupied motor vehicle, causing death), and, as so modified, affirmed." This modification also requires the movement of text affecting pages 1446-1450 of the bound volume report.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
OPINION
JOHNSON, J.
It is ordered the opinion filed herein on March 17, 2003, is modified as follows:
1. At page 23 the following new paragraph and footnote are added following the second full paragraph [106 Cal.App.4th 1449, advance report, foll. 3d par.]. Subsequent footnotes are renumbered accordingly. The new paragraph and footnote read:
As a result of this holding we will remand the case to the trial court to impose the enhancement under former section 12022.5, subdivision (b) (1). Although the jury found the enhancement allegation true, the trial court did not impose this enhancement because it imposed instead the enhancement under section 12022.53, subdivision (d), which carried a greater penalty. With the latter enhancement stricken, the former enhancement must now be imposed.65
65Following defendant's conviction the Legislature repealed the enhancement under section 12022.5, subdivision (b) (1) because it "recognize[d] that the conduct punished under that provision is now subject to greater punishment under subdivision (d) of section 12022.53 of the Penal Code." (Stats. 2002, ch. 126, § 12, subd. (b).) The Legislature stated this repeal "shall not be given any retroactive application, and shall not be construed to benefit any person who committed a crime or received an enhancement or any other punishment while [section 12022.5, subdivision (b) (1) was] in effect." (Stats. 2002, ch. 126, § 12, subd. (d).)
Page 887c
2. At page 25, a period is inserted after the word "fine" on line 2 [106 Cal.App.4th 1450, advance report, line 4] and the following sentence added:
The cause is remanded to the trial court with directions to impose the enhancement under former Penal Code section 12022.5, subdivision (b) (1). In all other respects the sentence is affirmed.
This modification constitutes a change in the judgment.
The petition for rehearing is denied.
Perluss, P. J., and Munoz, J.,* concurred.