P. v. Gomez

Filed 9/8/08 P. v. Gomez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE COURT:

The petition for rehearing is denied.

The unpublished opinion, filed August 13, 2008, is modified as follows:

1. In the second paragraph on page 24, the third sentence is modified and a footnote is added (additions in bold), so that the sentence reads:

Under the facts, it is difficult to imagine how a jury might have found that a reasonable person could have foreseen only the possibility of a homicide resulting from a misdemeanor or criminally negligent conduct, or from the commission of a non-inherently dangerous felony, which would be necessary for an involuntary manslaughter conviction.[Fn.]

2. Footnote 7 reads as follows:

Gomez raised the theory of how he could be found guilty of involuntary manslaughter based on a non-inherently dangerous felony for the first time in his petition for rehearing. A litigant may not raise an argument for the first time in a petition for rehearing. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1092.) Nevertheless, we reject the notion that a jury could have found that a reasonable person in Gomez's position could have foreseen an unlawful death resulting from the commission of a non-inherently dangerous felony, under the circumstances of this case.

The addition of footnote 7 will require renumbering of all subsequent footnotes.

NO CHANGE IN THE JUDGMENT.

McCONNELL, P. J.

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