Filed 6/17/09

CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

BENITO CORTES,

Defendant and Appellant.

B206770

(Los Angeles County

Super. Ct. No. NA064923)

ORDER MODIFYING

CONCURRING OPINION

[NO CHANGE IN JUDGMENT]

MOSK, J., Concurring and Dissenting:

It is ordered that the concurring opinion filed herein on June 16, 2009, be modified as follows.

1. After the words MOSK, J. on line 1, delete “Concurring” and add

Concurring and Dissenting.

2. The first line of the opinion should be changed from “I concur” to

I dissent as to defendant’s sentence to the extent it is based on a gang enhancement finding and otherwise concur.

MOSK, J.