P. v. Alcarez
Filed 2/8/10 P. v. Alcarez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. THOMAS EUGENE ALCARAZ, Defendant and Appellant. | H031733 (Santa Clara County Super. Ct. No. CC584587) ORDER MODIFYING OPINION AND DENYING REHEARING CHANGE IN JUDGMENT |
THE COURT:
It is ordered that the opinion filed herein on January 14, 2010, be modified as follows:
1. On page 38, under the heading VII. Disposition the paragraph, beginning with The judgment is deleted and the following paragraph is inserted in its place:
The judgment is reversed with directions as follows: If the District Attorney does not elect to retry the murder charge and enhancement allegations to that charge within 60 days after the filing of the remittitur in the trial court pursuant to section 1382, subdivision 2unless time is waived by defendantthe trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect convictions for (1) voluntary manslaughter ( 192) with enhancements for personally and intentionally discharging a firearm and proximately causing death ( 12022.53, subd. (c)) and personally using a firearm ( 12022.5, subd. (a)), (2) being a misdemeanant in possession of a firearm ( 12021, subd. (c)(1)), and (3) reckless driving (Veh. Code, 2800.2, subd. (a)). The court shall resentence defendant accordingly. (E.g., People v. Edwards (1985) 39 Cal.3d 107, 118 [similar disposition]; People v. Woods (1992) 8 Cal.App.4th 1570, 1596 [same]; People v. Garcia (1972) 27 Cal.App.3d 639, 648 [same].)
Respondents petition for rehearing is denied.
This modification changes the judgment.
Dated: ____________________________________
RUSHING, P.J.
WE CONCUR:
_________________________________
PREMO, J.
_________________________________
ELIA, J.
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