People v. Hawkins (2002)

THE PEOPLE, Plaintiff and Respondent, v. DAVID WESLEY HAWKINS, Defendant and Appellant.

[Modification fn. * of opinion (98 Cal.App.4th 1428) on denial of petition for rehearing.]

THE COURT.- fn. †

It is ordered that the opinion filed herein on June 5, 2002, be modified in the following particulars:

1. On page 9, line 4 of the fourth full paragraph [98 Cal. App. 4th 1440, advance report, 4th par., line 4], delete the reference to "subdivision (i)" and replace with subdivision (h).

2. On page 10, line 1 [98 Cal. App. 4th 1440, advance report, 4th par., line 9], beginning "(Stats. 1989, ch. 1357, § 1, p. 5725.)" is deleted and the following is inserted in its place:

(Stats. 1989, ch. 1357, § 1.3, p. 5738.)

3. On page 10, line 3 of the first full paragraph [98 Cal. App. 4th 1441, advance report, 1st par., line 3], delete the reference to "subdivision (i)" and replace with subdivision (h).

4. On page 11, line 5 of the first paragraph [98 Cal. App. 4th 1441, advance report, 2d par., line 8], beginning "(Stats. 1989, ch. 1357, § 1, p. 5727" is deleted and the following is inserted in its place.

(Stats. 1989, ch. 1357, § 1.3, p. 5740

5. On page 11, line 1 of the first paragraph [98 Cal. App. 4th 1441, advance report, 3d par., line 1], delete the reference to "subdivision (i)(2)" and replace with subdivision (h)(2).

6. On page 11, the second full paragraph [98 Cal. App. 4th 1441, advance report, 4th par.] is deleted and the following is inserted in its place:

By its own terms, former subdivision (h)(2) created an exception or exemption limited to the crime defined in subdivision (c)(3) and not the [99 Cal. App. 4th 1333b] crime defined in subdivision (c)(2) as the unauthorized taking, copying, or using of computer data with which defendant was charged. However, this exemption in (h)(2) was expanded to other crimes in subdivision (i) as follows. "No activity exempted from prosecution under paragraph (2) of subdivision (h) which incidentally violates paragraph (2), (4), or (7) of subdivision (c) shall be prosecuted under those paragraphs." (Stats. 1989, ch. 1357, § 1.3, p. 5740.)

7. On page 11, line 1 of the fourth full paragraph [98 Cal. App. 4th 1442, advance report, 1st full par., line 1], delete the reference to "subdivision (i)(2)" and replace with subdivision (h)(2).

8. On page 12, line 6 of the first paragraph [98 Cal. App. 4th 1443, advance report, 1st full par., lines 11, 12], delete the words "former subdivision (j)" and replace with subdivision (i).

9. On page 13, first full paragraph [98 Cal. App. 4th 1443, advance report, 1st full par.], delete the first sentence beginning with "We conclude" and insert the following so the sentence reads:

We conclude that the phrase "incidentally violates" in subdivision (i) does not render the statute unconstitutionally vague.

10. On page 17, at the end of the third full paragraph [98 Cal. App. 4th 1447, advance report, line 2], after the sentence ending "no applicable hearsay exception" add the following sentence, including the footnote, so the sentence reads:

Defendant contended that computer dates and times were notoriously unreliable and that reliability had to be established. fn. 8

11. On page 21 [98 Cal. App. 4th 1450, advance report, 4th par.], delete the fourth full paragraph in its entirety.

12. On page 21 [98 Cal. App. 4th 1450, advance report, 5th par.], delete the first sentence of the fifth full paragraph beginning with "Because defendant" and insert the following sentence in its place so the sentence reads:

The trial judge did not have much information on the topic of reliability at the time he ruled the printouts admissible. [99 Cal. App. 4th 1333c]

The petition for rehearing is denied.

This modification does not effect a change in the judgment.

FN *. This modification requires the movement of text affecting pages 1450-1452 of the bound volume.

FN †. Before Bamattre-Manoukian, Acting P. J., Mihara, J., and Rushing, J.

FN 8. The reporter's transcript attributed these statements to the prosecutor, but from the context it appears they were made by defense counsel.