P. v. Medina and Mora
Filed 1/15/10 P. v. Medina and Mora CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, Plaintiff and Respondent, v. JAIME DIAZ MEDINA and MARCO ANTONIO MORA, Defendants and Appellants. | G040048 (Super. Ct. No. RIF098463) ORDER MODIFYING OPINION |
It is ordered that the opinion filed herein on December 18, 2009, be modified as follows:
1. On page 1, the first editorial paragraph beginning Appeal from a judgment is deleted in its entirety and replaced with the following paragraph:
Appeals from judgments of the Superior Court of Riverside County, Paul E. Zellerbach, Judge. Affirmed in part, reversed in part, and remanded for resentencing.
2. In the fourth paragraph, which starts on page 3 and continues to page 4, beginning Both defendants argue there was insufficient evidence, delete the last two sentences in their entirety and replace them with the following sentence:
The convictions for attempted murder must be reversed.
3. On page 25, at the end of the second full paragraph, after the citation string ending . . . 141 Cal.App.4th at pp. 392‑393.), add as footnote 6 the following footnote, which will require renumbering of the subsequent footnotes:
6 In our opinion, as originally filed, we modified the judgments to reflect convictions for assault with a firearm against defendants, under the authority of section 1260 and People v. Navarro (2007) 40 Cal.4th 668, 677. As Medina pointed out in his petition for rehearing, because assault with a firearm is not a lesser included offense of attempted murder, this modification was unauthorized. We have therefore modified this opinion accordingly. The Attorney General did not file an answer to the petition for rehearing.
4. The third paragraph, which starts on page 25 and continues to page 26, beginning Although defendants convictions, is deleted in its entirety.
5. On page 27, the fourth paragraph beginning Mora next argues, is deleted in its entirety and replaced with the following paragraph:
Mora next argues that the abstract of judgment must be modified to reflect that Moras sentence on count 3assault with a firearmwas stayed rather than imposed concurrently. The trial court stayed Moras sentence on count 3 because that count was charged as an alternative to count 2attempted murder. Because we have reversed Moras conviction for attempted murder, it is appropriate to remand the matter for resentencing on count 3.
6. On page 27, in the new fourth paragraph, after the last sentence ending the matter for resentencing on count 3, add as footnote 8 the following footnote, which will require renumbering of the subsequent footnote:
8 Medinas jury, unlike Moras jury, did not render a verdict on count 3. Pursuant to an oral motion by the prosecution, the trial court dismissed count 3 against Medina in the interests of justice.
7. Under the heading Disposition, the paragraph, which starts on page 28 and continues to page 29, beginning Defendants convictions for, is deleted in its entirety and replaced with the following paragraph:
Defendants convictions for attempted murder are reversed. We direct the trial court to correct Medinas abstract of judgment to strike the parole revocation fine. We remand Moras case for resentencing on count 3, and further direct the trial court to correct Moras abstract of judgment as follows: (1) reflect that the restitution and parole revocation fines are $200 each; (2) list Moras presentence custody credits on the abstract for his indeterminate sentence; and (3) reflect that Mora is credited with 2,248 days of presentence custody credits. We further direct the trial court to prepare amended abstracts of judgment, and forward certified copies of the amended abstracts of judgment to the Department of Corrections and Rehabilitation, Division of Adult Operations. In all other respects, the judgments are affirmed.
These modifications constitute a change in the judgments. The petition for rehearing is DENIED.
FYBEL, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
OLEARY, J.
Publication courtesy of California pro bono legal advice.
Analysis and review provided by La Mesa Property line attorney.
