Opinion
Page 1469b
152 Cal.App.4th 1469b __ Cal.Rptr.3d __ THE PEOPLE, Plaintiff and Respondent, v. CORRIE DONTA COLE, Appellant and Appellant. F050978M California Court of Appeal, Fifth District July 18, 2007Super. Ct. No. 06CM7253A
THE COURTDAWSON, J.
It is ordered that the opinion filed herein on June 19, 2007 (152 Cal.App.4th 230; ___ Cal.Rptr.3d ___), and reported in the Official Reports (152 Cal.App.4th 230) be modified in the following particulars:
1. Towards the end of the first full paragraph on page 7, after the sentence ending “section 288 offense in responding to his Romero motion,” [152 Cal.App.4th 237, 2d full para.], add as footnote 6 the following footnote:
6We reject appellant’s argument that, because the trial court found him to be within the spirit of the three strikes law given his history of continuing criminal conduct and “notwithstanding the nature of” his strike offense, the court necessarily based its decision exclusively on conduct other than that underlying the strike. Rather, the court expressed that, though the nature of the conduct underlying the strike might be a factor weighing in favor of leniency, other factors weighing against leniency prevailed.
2. On page 8, at the end of the first full paragraph ending in “(Ibid.),” [152 Cal.App.4th 238, 2d full para.], add the following:
Before the state is required to make such a showing, however, the party making the equal protection claim must demonstrate that the law in question treats “similarly situated” individuals differently. (See Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 [127 Cal.Rptr.2d 177].) The initial inquiry is “not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’” (Ibid., quoting People v. Gibson (1988) 204 Cal.App.3d 1425, 1438 [252 Cal.Rptr. 56]; see also In re Eric J. (1979) 25 Cal.3d 522, 530 & fn. 1 [159 Cal.Rptr. 317].)
Page 1469c
3. On page 8, the first sentence of the second full paragraph [152 Cal.App.4th 238, 2d full para.] is deleted and the following inserted in its place:
Respondent contends both that the necessary close relation to a compelling state interest is present here and that, as a threshold matter, appellant has failed to demonstrate that for purposes of the three strikes law he is situated similarly to a defendant who has suffered a prior finding by a juvenile court that he violated section 288, subdivision (a).
Except for the modifications set forth, the opinion previously filed remains unchanged. There is no change in the judgment.
Appellant’s petition for rehearing is denied.