Opinion
Santa Clara County Super. Ct. No. CC126484
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]
BAMATTRE-MANOUKIAN, ACTING P. J.
It is ordered that the opinion filed herein on January 30, 2008, be modified in the following particulars:
1. On page 2, at the end of the third sentence of the first full paragraph, ending with the words “whether defendant is mentally retarded,” the following sentence is inserted: “The trial court retains discretion to determine the scope of the additional evidence it will allow to be presented.”
2. On page 2, at the end of the second full paragraph, after the citation ending “see also § 189),” the following sentence is inserted: “On June 13, 2003, the trial court dismissed the use enhancement under section 12022.55, and the special circumstance under section 190.2, subdivision (a)(21).”
3. On page 3, the fourth sentence of the first full paragraph, beginning with the words “The prosecutor presented” and ending with the words “is not mentally retarded,” is deleted and the following sentence is inserted in its place:
The prosecutor presented two expert witnesses, Dr. William Lynch and Professor Karen Salekin.
4. On page 8, at the end of the second sentence of the second full paragraph, ending with the words “the definition of mental retardation,” the following sentence is inserted: “Defendant requests that the court order a dismissal of the death penalty allegation, require a fair consideration of the evidence, or grant such other relief as is deemed just.”
5. At the end of the last paragraph on page 12, after the citation “(Atkins, supra, 536 U.S. at p. 309, fn. 3; Hawthorne, supra, 35 Cal.4th at p. 47.)” add as footnote 5 the following footnote, which does not require renumbering:
5 The American Association on Mental Retardation is now known as the American Association on Intellectual and Developmental Disabilities. Its current definition of intellectual disability, which covers the same population of individuals previously eligible for a diagnosis of mental retardation, is as follows: Intellectual disability is a disability characterized by significant limitations in both intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before the age of 18.
6. On page 16, second full paragraph, the last sentence ending with the words “to do so due to this court’s stay order,” the words “do so” are deleted and replaced with “reopen, or grant a new trial,” so that the sentence reads:
However, the court did not allow defendant to reopen the testimony in order to present any evidence regarding Connors’s testimony, additional ABAS-II results, or the results of additional standardized tests as the court found it lacked jurisdiction to “reopen, or grant a new trial,” due to this court’s stay order.
7. On page 17, at the end of the third sentence of the second full paragraph, ending with the words “whether defendant is mentally retarded,” the following sentence is inserted: “The trial court retains the discretion to determine the scope of the additional evidence it will allow to be presented.”
8. On page 18, in the Disposition, after the third sentence ending with the words “whether defendant is mentally retarded,” the following sentence is inserted: “The trial court retains the discretion to determine the scope of the additional evidence it will allow to be presented.”
The petition for rehearing is denied.
This modification does not affect the judgment.
MIHARA, J., MCADAMS, J.