Opinion
Page 303a
106 Cal.App.4th 303a ___Cal.Rptr.2d___ THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RAY JOHNSON, Defendant and Appellant. H023838 California Court of Appeal, Sixth District February 13, 2003[Modification of opinion (105 Cal.App.4th 515; 129 Cal.Rptr.2d 500) on denial of petition for rehearing.]
This modification requires editorial changes to the summary, page 515 of the advance report. In the second paragraph, the third through fifth sentences will be deleted in the bound volume report. In addition, editorial changes will be made to headnotes (2a-2c), (3), (4), (5), (6a, 6b), and (7), pages 516-518. Headnote (2a-2c) will be deleted and (3) and (4) renumbered (2) and (3), respectively. In the advance report, in the last line of former headnote (4), page 517, the words "; thus the claim was precluded in his second appeal" will be deleted. Headnote (5) will be deleted. Headnote (6a, 6b) will be renumbered (4a, 4b) and headnote (7) will be renumbered (5). This modification also requires the movement of text affecting pages 518-531 of the bound volume report.
OPINION
Before Rushing, P. J., Elia, J., and Premo, J.
The above captioned opinion, filed January 17, 2003, is hereby modified as follows:
1. Page 2, delete the first sentence of the first full paragraph [105 Cal.App.4th 519, advance report, line 5] and substitute in its place the following:
We conclude that defendant waived the claim that the sentencing court had discretion to impose a concurrent term on count two by failing to raise the issue below.2. Page 7, delete the second full paragraph [105 Cal.App.4th 523, advance report, 2d par.] and substitute in its place the following:
The rationale of People v. Scott supports application of the waiver rule in this case. An alleged error consisting of a failure to exercise discretion that does not result in an unauthorized sentence is similar to an abuse of discretion that does not result in an unauthorized sentence. Both are claims involving "sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (People v. Scott, supra, 9 Cal.4th at p. 354.) "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (Ibid.) Imposition of a consecutive term on count two was not an unauthorized sentence in this case.
Page 303b
3. Delete the paragraph beginning on page 7 [105 Cal.App.4th 523, advance report, 3d par.] and continuing through page 8 and substitute in its place the following:
In addition, although not mentioned by the parties, we note the general rule that a defendant may not raise an issue in a second appeal that could have been raised in the first, absent a showing of good cause or justification. (People v. Senior (1995) 33 Cal.App.4th 531, 538 [41 Cal.Rptr.2d 1]; cf. People v. Coelho (2001) 89 Cal.App.4th 861, 873-874, fn. 5 [107 Cal.Rptr.2d 729] [rule not mandatory].) At the June 28, 1999 hearing, the court expressed its belief that the Three Strikes law mandated consecutive terms. There is no apparent reason why the issue now raised could not have been presented in the first appeal. However, this is a cumulative ground upon which we do not rely given our conclusion regarding the waiver rule articulated in People v. Scott, supra, 9 Cal.4th 331.4. Omit the last three paragraphs of section B on pages 8-9 [105 Cal.App.4th 523-524, advance report], beginning with "In any event ...."
This modification does not affect the judgment.
The petition for rehearing is denied.