Filed 12/17/18 (unmodified opinion attached) CERTIFIED FOR PARTIAL PUBLICATION * IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, A148828 v. (City & County of San Francisco MAURICE CALDWELL, Super. Ct. No. 1260545) ORDER MODIFYING OPINION AND Defendant and Appellant. DENYING REHEARING; NO CHANGE IN JUDGMENT THE COURT: It is ordered that the opinion filed herein on November 15, 2018, be modified as follows: 1. On page 3, lines 4-7, the following two sentences are deleted: “Cobbs’s description of the shotgun shooter matched that given by Bobila and fit Caldwell’s appearance at the time. Her description of admitted handgun shooter Funches also matched his appearance at the time of the murder.” The following sentence is inserted in their place: “Cobbs’s description of the shotgun shooter was consistent with Caldwell’s appearance at the time.” 2. On page 20, lines 14-15, the following sentence is deleted: “That Caldwell was the second shooter seen by Tolliver and identified by Cobbs resolves any discrepancy on which Caldwell relies.” The following sentences are inserted in its place: “The thrust of Caldwell’s argument is that Martin fired the shotgun and therefore Caldwell was not the shooter. Tolliver’s declaration provides an alternative: even if Martin fired the shotgun, a second person also fired the shotgun. At trial and in opposition to the * Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II and III of the Discussion. 1 factual innocence motion, the People presented evidence that Caldwell was that person.” 3. On page 20, lines 18-19, the following sentence is deleted: “The post-conviction evidence does not refute compelling evidence that Caldwell was the shotgun shooter.” The following sentence is inserted in its place: “The post-conviction evidence does not refute compelling evidence that Caldwell fired the shotgun.” There is no change in the judgment. Appellant’s petition for rehearing is denied. Date: ____SIGGINS, P.J._________ Presiding Justice 2 Filed 11/15/18 (unmodified opinion) CERTIFIED FOR PARTIAL PUBLICATION * IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, A148828 v. MAURICE CALDWELL, (City & County of San Francisco Super. Ct. No. 1260545) Defendant and Appellant. Appellant Maurice Caldwell’s 1991 second degree murder conviction was reversed when the trial court granted his habeas corpus petition. Caldwell’s habeas petition alleged various grounds for relief—including the actual innocence claim at issue here—but the sole basis for granting the petition was the ineffective assistance of his trial counsel. Caldwell filed a subsequent Penal Code section 1485.55 1 motion for a finding of factual innocence (factual innocence motion), which the trial court denied. Caldwell appeals. The People contend that the order is not appealable. We hold that the order is appealable, review the record de novo and affirm the trial court’s decision. FACTUAL AND PROCEDURAL BACKGROUND A. The murder and investigation On June 30, 1990, at approximately 2:30 a.m., Judy Acosta was ...
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