Opinion
Nos. C080256 C083238.
03-12-2018
EL DORADO COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Intervener and Respondent. In re the Marriage of DIANE and JOSEPH CONNOLLY.DIANE CONNOLLY, Respondent, v. JOSEPH CONNOLLY, Appellant
[Modification of opinion (20 Cal.App.5th 561; ___ Cal.Rptr.3d ___), upon denial of rehearing.]
THE COURT. — Appellant petitions for rehearing on the basis newly enacted legislation entitles him to a remand to permit the trial court to determine whether to dismiss his firearm enhancements in the interest of justice. (Pen. Code, § 12022.53, subd. (h), as amended Jan. 1, 2018; People v. Woods (2018) 19 Cal.App.5th 1080 [recent amendments to Pen. Code, § 12022.53, subd. (h) apply retroactively to cases on direct appeal].) Appellant did not raise this issue on appeal, and "`[i]t is well settled that arguments ... cannot be raised for the first time in a petition for rehearing.' [Citation.]" (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1092 [32 Cal.Rptr.3d 483, 116 P.3d 1162]; People v. Senior (1995) 33 Cal.App.4th 531, 537 .)
Appellant recognizes the procedural problem of raising this argument in a petition for rehearing, but urges its consideration on the basis it would forestall a habeas corpus petition. On the basis of judicial economy, and considering that the case is already being remanded for a Franklin hearing to allow the parties to make a record regarding appellant's future suitability for parole, we agree. Any decision respecting whether the interests of justice warrant dismissing appellant's firearm enhancements would have a logical bearing on this issue. Therefore, the scope of the remand shall include consideration of appellant's request to dismiss the enhancements. We offer no opinion as to whether or not that request should be granted.
The petition for rehearing is DENIED.
It is hereby ordered that the opinion filed herein on February 16, 2018, is modified in the following particulars:
1. On page 2, second full paragraph, last sentence [20 Cal.App.5th 563, advance report, 2d par., line 9], remove the phrase "we remand for this limited purpose" and replace with "we remand for further proceedings."
[21 Cal.App.5th 166h]
2. On page 12, in the Disposition [20 Cal.App.5th 571, advance report, 1st par., line 2], second sentence, after "63 Cal.4th 261 [202 Cal.Rptr.3d 496, 370 P.3d 1053]", insert a period and delete the remainder of the paragraph.
This modification does not effect a change in the judgment.