Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF055070
MODIFICATION OF OPINION AND DENIAL OF PETITION FOR REHEARING (CHANGE IN JUDGMENT)
THE COURT:
The opinion of this court filed July 21, 2009, in the above entitled case is modified as follows:
1. On page 7 the following paragraph is to be added after the first full paragraph:
“Defense counsel subsequently informed us that defendant’s conviction for attempted assault with a deadly weapon cannot stand because there is no crime of attempted assault with a deadly weapon. We agree. The California Supreme Court has ruled there is no crime of attempted assault with a deadly weapon. (In re James M. (1973) 9 Cal.3d 517, 522.) We shall therefore reverse the conviction for attempted assault with a deadly weapon. There is no need for resentencing. The offense was reduced to a misdemeanor for the purposes of sentencing, and defendant still stands convicted of two other misdemeanor offenses. We shall direct the trial court to enter an order of dismissal and to prepare an amended order of probation. Counsel is commended for bringing this to our attention.”
2. On page 7, the second line of the second full paragraph should read:
“find no other arguable error in favor of defendant.”
3. On page 7, delete the sentence following the word "DISPOSITION" and add:
“The conviction for attempted assault with a deadly weapon (§§ 664/245, subd. (a)(1)(count 9) is reversed. In all other respects, the judgment is affirmed. The court is directed to enter an order dismissing the attempted assault with a deadly weapon conviction in count 9 and to prepare an amended order of probation.”
This modification effects a change in the judgment. As modified, the petition for rehearing is denied.
BLEASE, Acting P. J. NICHOLSON, J., CANTIL-SAKAUYE, J.