Opinion
No. F077504.
02-23-2021
THE PEOPLE, Plaintiff and Respondent, v. JORGE JAIMES et al., Defendants and Appellants.
[Modification of opinion (60 Cal.App.5th 140; Cal.Rptr.3d).]
THE COURT.—IT IS ORDERED that the published dissenting opinion filed herein on January 25, 2021, be modified as follows:
On page 6 of Justice Poochigian's dissenting opinion [60 Cal.App.5th 161, last par. continuing to 162, advance report], the last paragraph beginning "While Justice Werdegar may have believed it was unlikely the Legislature intended" shall be deleted and replaced with the following:
While Justice Werdegar may have believed it was unlikely the Legislature intended for "in association" to mean "acting `in association with members of a criminal street gang'" ( Albillar, supra, 51 Cal.4th at p. 73 (conc. & dis. opn. of Werdegar, J.)), a concurrence or dissent does not state the majority view and is not binding. (People v. Lopez (2012) 55 Cal.4th 569, 585 [147 Cal.Rptr.3d 559, 286 P.3d 469]; Rosato v. Superior Court (1975) 51 Cal.App.3d 190, 211 ; In re Marriage of Dade (1991) 230 Cal.App.3d 621, 629 .) Even if Justice Werdegar's separate opinion was controlling authority, however, it did not advocate a specific definition for "in association with," but instead criticized the majority opinion in Albillar for relying on the expert's opinion to provide substantial evidence in light of the prosecutor's purported erroneous definition of the phrase. ( Albillar, supra, 51 Cal.4th at pp. 71-72, 119 (conc. & dis. opn. of Werdegar, J.).)
This modification does not effect a change in the judgment.