P. v. Butler
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Filed 10/13/04 CERTIFIED FOR PARTIAL PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, v. WILLIAM FELTON BUTLER, Defendant and Appellant. A101799 (Humboldt County Super. Ct. No. CR024877S) BY THE COURT: It is ordered that the opinion filed herein on September 27, 2004, be modified in the following particulars: The text contained in footnote 7 on page 20 is deleted. The deleted text is replaced with the following language: We are not persuaded otherwise by the People s troubling reliance on two federal cases, United States v. Cotton (2002) 535 U.S. 625 (Cotton) and United States v. Ameline (2004) 376 F.3d 967 (Ameline). The People erroneously contend these cases support their view that a Blakely claim can properly be deemed forfeited under California law, and thus not subject to review at all, even when, as here, Blakely was decided after the defendant s sentencing hearing. As any fair analysis of these federal cases should acknowledge, characterizing a claim as forfeited under federal law does not mean the claim is not reviewable on appeal. Rather, such a claim is reviewed for plain error pursuant to rule 52(b) of the Federal Rules of Criminal Procedure. (See Cotton, supra, 535 U.S. 625, 631-632; Ameline, supra, 376 F.3d 967, 978-979.) In their supplemental brief, the People acknowledge that a plain error analysis was applied in Cotton but then argue that such an analysis is inapplicable in this state appeal. We agree. But, by the same token, these federal cases are not sound authority for denying any review of a state law claim which arose while the criminal appeal was pending. In any event, California has a well-recognized waiver rule (see, e.g., People v. Scott (1994) 9 Cal.4th 331, 351-356) applicable in circumstances of this sort and, as noted above, we have no problem in holding there was no waiver of Blakely error. (See, to the same effect, People v. Ochoa (1994) 121 Cal.App.4th 1551 [2004 Cal.App. LEXIS 1464, at p. 6]; People v. George (September 15, 2004, D042980) ___Cal.App.4th _____ [2004 Cal.App. LEXIS 1532].) To the extent the recent decision of the Third District in People v. Sample (September 13, 2004, C044445) ___Cal.App.4th___ [2004 Cal.App.LEXIS] holds to the contrary, we respectfully disagree with it. This modification does not effect a change in the judgment. Both petitions for rehearing are denied.
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