Opinion
Page 653o
106 Cal.App.4th 653o ___Cal.Rptr.2d___ THE PEOPLE, Plaintiff and Respondent, v. DAVID JAMES CASPER, Defendant and Appellant. D038550 California Court of Appeal, Fourth District, First Division March 3, 2003[Modification of opinion (105 Cal.App.4th 1373; 130 Cal.Rptr.2d 368) on denial of petition for rehearing.]
OPINION
THE COURT.
It is ordered that the opinion filed herein on February 3, 2003, be modified as follows:
1. On page 10, at the end of the last full paragraph, after the sentence ending "fair both to Casper and to society" [105 Cal.App.4th 1380, advance report, last line], add as footnote 3 the following footnote:
3The People filed a petition for rehearing in this case, asserting inter alia that we did not consider the contrary result reached in the recent case of People v. Johnson (2003) 105 Cal.App.4th 515 [129 Cal.Rptr.2d 500] (incorrectly cited in the petition for rehearing as 105 Cal.App. 515). Johnson was filed on January 17, 2003, and was not final at the time of our opinion. Furthermore, the discussion in Johnson of consecutive sentences is dicta. Johnson held that under People v. Scott (1994) 9 Cal.4th 331 [36 Cal.Rptr.2d 627], because the issue of consecutive sentences was not raised in the trial court it could not be raised on appeal. Johnson 's subsequent discussion of consecutive sentencing was unnecessary to its decision. Finally, the discussion of consecutive sentencing in Johnson did not include any analysis of the effect of People v. Garcia (1999) 20 Cal.4th 490 [85 Cal.Rptr.2d 280], on which our opinion is based.
There is no change in the judgment.
The petition for rehearing is denied.