P. v. Tran
Filed 10/5/06 P. v. Tran CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
| THE PEOPLE, Plaintiff and Respondent, v. TU QUOC TRAN, Defendant and Appellant. | B183848 (Los Angeles County Super. Ct. No. GA056293) ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] |
THE COURT:
It is ordered that the opinion filed herein on September 8, 2006, be modified as follows:
1. On page 1, the second paragraph is deleted and the following paragraph is inserted in its place:
Jennevee H. De Guzman and James A. Uyeda, under appointments by the Court of Appeal, for Defendant and Appellant.
2. On page 7, the second sentence of footnote 1 (which begins on page 6) and the citations that immediately follow that sentence are deleted.
3. On page 7, the first sentence of the second paragraph, the word “nonconstitutional“ is inserted between the words “Pearson’s“ and “judicial” so that the sentence reads:
However, Pearson’s nonconstitutional judicial rule, which acts as an exception to the statutory rule permitting multiple convictions, is inapplicable in the present case.
4. On page 7, immediately after the citations beginning on line 4 of the second paragraph and ending on line 6 of that paragraph, add as footnote 2 the following footnote, which will require renumbering of the subsequent footnote:
2 To the extent appellant independently asserts federal due process protections enunciated in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed. 2d 435] (Apprendi), he waived the issues by first raising them in his reply brief. (Cf. People v. Thomas (1995) 38 Cal.App.4th 1331, 1334; People v. Jackson (1981) 121 Cal.App.3d 862, 873.) In any event, Apprendi had no occasion to consider nonconstitutional state law limits on the number of convictions a defendant might suffer or, in particular, whether Pearson’s state law exception (already favorable to defendants) might be limited by excluding consideration of enhancements when identifying a greater or lesser offense for purposes of that exception.
There is no change in the judgment.
Appellant’s petition for rehearing is denied.
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