Opinion
Page 1609a
130 Cal.App.4th 1609a __ Cal.Rptr.3d __ THE PEOPLE, Plaintiff and Respondent, v. ABEL BANUELOS, Defendant and Appellant. B172385 California Court of Appeal, Second District, Sixth Division July 18, 2005Los Angeles County Super. Ct. No. NA058019
ORDER MODIFYING OPINION AND DENYING REHEARING, NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on June 22, 2005 (130 Cal.App.4th 601; Cal.Rptr.3d ), be modified as follows:
1. The paragraph commencing at the bottom of page 11 [130 Cal.App.4th 607, advance report, 2d par.] with "The people suggest that we can uphold" and ending at the top of page 12 with "evidence that was presented" is modified to read as follows:
The People suggest that we can uphold the finding on the prior conviction because (1) the probation report prepared in the current case describes the 1992 assault as an assault with a deadly weapon, and (2) defense counsel stated at sentencing that appellant had used a car during the commission of the earlier assault, and a car qualifies as a deadly weapon. Both the probation report and counsel's statement involve multiple levels of hearsay and are outside the record of conviction in the prior case. (People v. Reed (1996) 13 Cal.4th 217, 226 [52 Cal.Rptr.2d 106, 914 P.2d 184].) They would not be admissible during a trial on the truth of the prior conviction allegation. In any case, they were not presented at the trial that was actually held and cannot be considered in evaluating the sufficiency of the evidence that was presented.
2. At the end of the first full paragraph on page 12 [130 Cal.App.4th 607, advance report, 3d par.] , the full citation to People v. Reed is modified to read as (People v. Reed, supra, 13 Cal.4th at p. 226.)
There is no change in judgment.
Respondent's petition for rehearing is denied.