P. v. Thomas

Filed 7/27/07 P. v. Thomas CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE COURT:

It is ordered that the opinion filed herein on June 29, 2007, be modified as follows:

1. On page 19, after the last line, add the following paragraph:

Defendants Thomas and Young contend, and the People agree, that if the gang enhancements are reversed, the firearm use enhancements under Penal Code section 12022.53, subdivision (e)(1), also must be reversed. This subdivision only applies where it is pled and proved that the defendants violated subdivision (b) of Section 186.22. Since the prosecution failed to prove the violation, subdivision (e)(1) does not apply and the enhancements thereunder must be reversed.

2. On page 29, line 2 under Disposition, following subdivision (b)(1), insert and Penal Code section 12022.53, subdivision (e)(1), so that the sentence reads:

The enhancements imposed under Penal Code section 186.22, subdivision (b)(1), and Penal Code section 12022.53, subdivision (e)(1), are reversed.

This modification changes the judgment.

The Petition for Rehearing is denied.

______________________ ____________________

JACKSON, J.* ROTHSCHILD, J.

I would grant the petition for rehearing.

____________________

VOGEL, Acting P. J.

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* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to Article VI, section 6 of the California Constitution.