Filed 1/6/00

NO CHANGE IN JUDGMENT

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE COURT:

It is ordered that the opinion filed herein on December 21, 1999, be modified in the following particulars:

On page 2, before the words defendant and appellant, a new Introductory paragraph is added as follows:

The validity of the prior-murder special-circumstance finding in this case, which was based on the defendant’s 1978 Texas murder conviction committed when he was 15 years old, and thus at a time when he could not have been convicted in California, depends on whether Proposition 8 applies. Because we conclude that a special circumstance is technically not an enhancement, we hold the trial court improperly applied Proposition 8, and we reverse the prior-murder special-circumstance finding.

On page 28 after the words Department of Corrections, the last sentence of the Disposition should read: The habeas corpus petition is denied.

The publication instructions of the opinion are modified to read as follows:

Pursuant to California Rules of court, Rules 976(b) and 976.1, this opinion is certified for partial publication. The portions to be published are the three Introductory paragraphs, the Background, Part 5. of the Discussion and the Disposition.

There is no change in judgment.