People v. Hamilton CA2/7

Filed 10/28/13 P. v. Hamilton CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B244095

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA055241) v. ORDER MODIFYING OPINION; JAMES CARL HAMILTON, NO CHANGE IN JUDGMENT

Defendant and Appellant.

THE COURT:

On October 23, 2013, James Carl Hamilton filed a document entitled “Notice Of Motion & Motion For Reconsideration” explaining he had attempted to file a supplemental brief in response to this court’s notice of May 30, 2013, but inadvertently served it on the Attorney General without filing it here. We granted Hamilton permission to file his supplemental brief, which we deem a petition for rehearing. It is ordered the opinion filed herein on September 30, 2013, and not certified for publication, be modified as follows: On page 2, following the first paragraph, add as the second paragraph: “When the case was called for trial, defense counsel moved for a continuance, arguing he needed more time to review discovery belatedly provided by the People, which gave rise to a potential

defense of third-party culpability. The master calendar court denied the motion as untimely, but advised defense counsel he could renew his motion for a continuance if the trial court found the discovery concerned admissible evidence of third-party culpability. The parties agreed. The case was assigned to a trial court, where an Evidence Code section 402 hearing was conducted on the admissibility of the proffered third-party culpability evidence. Following the hearing, the court excluded the evidence.” On page 2, line 1 of the second paragraph, delete the sentence “In a bifurcated proceeding, the trial court found the special allegations true” and substitute the following: “In a bifurcated proceeding, the People introduced certified prison packets to support the prior conviction allegations, including a 1999 conviction for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), which was alleged as a prior strike conviction and in which Hamilton had admitted an arming enhancement under Penal Code section 12022 (Case No. YA04158). At the conclusion of the hearing, the court found the special allegations true.” On page 2, line 4 of the fifth paragraph, delete the sentence “No response has been received to date” and substitute the following: “In a supplemental brief filed after the opinion was filed but accepted by this court as a petition for rehearing, Hamilton claimed his due process rights were violated by the court’s refusal to grant defense counsel’s motion to continue the trial, his case was improperly severed from that of his codefendant (Marquis Leon Ripetoe) and documentary evidence was insufficient to support the court’s finding he suffered a prior strike conviction in 1999 of assault with a deadly weapon.” On page 3, following the paragraph ending with “People v. Wende (1979) 25 Cal.3d 436, 441)” insert the following paragraph: “The denial of the motion to continue was neither an abuse of discretion nor a denial of Hamilton’s constitutional rights. Because nothing in the record indicates the issue of severance was raised in the trial court, Hamilton has forfeited the issue on appeal. (See People v. Ramirez (2006) 39 Cal.4th 398; 438.) The certified documents upon which the trial court relied, including the abstract of judgment describing the aggravated assault and the arming enhancement, were sufficient evidence to support the allegation his prior conviction was for assault with a deadly weapon within the