Opinion
D058183 Super. Ct. No. RIF128477
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. JOSE EDUARDO HERRERA et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
ORDER MODIFYING OPINION
CHANGE IN JUDGMENT
THE COURT:
The opinion filed January 23, 2012 is modified as follows:
1. Page 2, footnote 2, the following language is added at the end of that footnote, following "d": "as was stated in the verdict form. However, the verdict form used appears to contain a clerical error because the prosecutor orally amended the charged enhancements for counts 7 through 10 to subdivision (c) and the jury was instructed on subdivision (c). As Jose argues and the People concede, we conclude the record should state the jury found an enhancement under section 12022.53, subdivision (c) true as to count 10."
2. Page 3, second paragraph, line 6, the name "Lowary" is replaced with the name "Jose." That line should read: "enhancements on count 8 under section 12022.53, subdivision (d), Jose's sentence" . . . .
3. Page 5, second paragraph, first sentence, subdivision (c) is replaced with subdivision (d), and the name "Lowary" is replaced with the name "Jose." That sentence should read: "We reverse the appellants' convictions under counts 14 and 15 and conclude the court improperly enhanced each appellant's sentence on count 8 under section 12022.53, subdivision (d) and as to Jose under the same subdivision on count 10."
4. Page 34, first full paragraph, the name "Lowary" is replaced with the name "Jose." The paragraph should read: "Appellants contend and the People concede the court made the following sentencing errors: (1) on count 8, adding a 25-year-to-life term per the enhancement under section 12022.53, subdivision (d) as to all appellants; and (2) on count 10, adding a 25-year-to-life term per the enhancement under section 12022.53, subdivision (d) as to Jose. We agree."
5. Page 35, second full paragraph, first sentence, the name "Lowary" is replaced with the name "Jose." The sentence should read: "Despite the jury's findings, the court sentenced appellants to 25-year-to-life enhancements under section 12022.53, subdivision (d) on counts 8 as well as an additional 25-year-to-life enhancement under the same subdivision on count 10 for Jose."
6. In the DISPOSITION section, page 39, first full paragraph, first sentence, the name "Lowary" is replaced with the name "Jose." The sentence should read: "In addition, we strike the sentence enhancements under section 12022.53, subdivision (d) for count 8 as to all appellants and the sentencing enhancement under section 12022.53, subdivision (d) for count 10 as to Jose."
THERE IS A CHANGE IN THE JUDGMENT
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BENKE, Acting P. J.
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