Opinion
B184259
12-6-2006
THE PEOPLE, Plaintiff and Respondent, v. GUSTAVO VILLA et al., Defendants and Appellants.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
[There is a change in judgment]
GOOD CAUSE appearing, after reviewing respondents petition for rehearing and appellants answer to that petition, the opinion filed in the above entitled matter on November 6, 2006, is modified as follows:
On page 8, line 11, deleting in its entirety, including footnote 8, the sentence that begins, "Because those were the only two counts against Rodriguez, . . ." and replacing it with a new paragraph that reads: "Even absent the allegations necessary to elevate counts 1 and 3 to felonies, those crimes may still be sentenced as wobblers. (§§ 626.9, subd. (f)(2)(B), 12031, subds. (a)(2)(F), (G).) Instead of retrying the felony allegations, the prosecution may on remand elect to have the court re-sentence appellants under those provisions. If so, our reversal extends to the count 1 and 3 sentences only. If the prosecution elects to retry the felony allegations on counts 1 and 3, however, those two convictions are reversed in their entirety. Because those were the only two counts against Rodriguez, should the prosecution elect to retry the felony allegations as to Rodriguez, then the judgment against him would be reversed in its entirety." At the end of this last sentence, add a new footnote 8 that reads: "Our reversal for instructional error does not bar a retrial under constitutional double jeopardy principles." (See People v. Hernandez (2003) 30 Cal.4th 1, 6-7.)
The entire disposition on page 14 is deleted, and replaced with a new paragraph that reads: "For the reasons set forth above, the judgment is conditionally reversed as to only the sentences on counts 1 and 3. Should the prosecution elect to retry the count 1 and 3 felony allegations, then those convictions are reversed in their entirety as to Sarinana and Villa, and the judgment is reversed in its entirety as to Rodriguez. As to the remaining counts, the judgment as to Sarinana and Villa is reversed as to only the sentences, allowing the trial court to re-sentence on any and all remaining convictions at the appropriate time."
The judgment is changed in accordance with our modified disposition.
The petition for rehearing is denied. --------------- Notes: COOPER, P.J. RUBIN, J. BOLAND, J.