P. v. Esquibel
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Filed 10/30/06 CERTIFIED FOR PUBLICATION NO CHANGE IN JUDGMENT IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT B165767 PEOPLE, Plaintiff and Respondent, v. (Super. Ct. No. TA065805) ORDER MODIFYING OPINION AND DENYING REHEARING PETER ESQUIBEL, Defendant and Appellant. THE COURT: It is ordered that the opinion filed herein on September 28, 2006, be modified as follows. In the Procedural Background section, second paragraph: Strike: With respect to counts 2 through 4, the jury found in the commission of the offenses, appellant personally and intentionally discharged a firearm and that appellant personally used a firearm. Substitute: With respect to counts 2 through 5, the jury found in the commission of the offenses, appellant personally and intentionally discharged a firearm and that appellant personally used a firearm. In the Procedural Background section, third paragraph: Strike: plus 20 years to life Substitute: plus 20 years Footnote Three: Strike: The case was then remanded to this court for further consideration in light of United States v. Booker (2005) 543 U.S. 220 and People v. Black ( 2005) 35 Cal. 4th 1238, 1257-1261. Substitute: The case was then remanded to this court for further consideration in light of People v. Black (2005) 35 Cal. 4th 1238, 1257-1261. In the Sentencing Errors Sentence Enhancements section: Strike: Respondent concedes the sentencing error and upon resentencing the trial court is directed to delete the section 12022.7 enhancement to appellant s sentence in the new abstract of judgment. Substitute: Respondent concedes the sentencing error and upon resentencing the trial court is directed to impose and stay the section 12022.7 enhancement to appellant s sentence in the new abstract of judgment. In the Sentencing Errors Waiver or Forfeiture of Blakely Error section: Strike: Appellant argues that his Sixth Amendment right to a fair and impartial jury was violated by the trial court s imposition of the upper term on both convictions because the terms were based on facts not determined to be true by a jury Substitute: Appellant argues that his Sixth Amendment right to a fair and impartial jury was violated by the trial court s imposition of the upper term on count 4 because the term was based on facts not determined to be true by a jury. In the Sentencing Errors Imposition of the Upper Term section: Strike: Appellant argues that his Sixth Amendment right to a fair and impartial jury was violated by the trial court s imposition of the upper term on both convictions because the terms were based on facts not determined to be true by a jury. Appellant contends the upper terms on count 4 must be vacated and the middle term imposed, because the aggravating factors used to justify the upper term in each instance were not found true beyond a reasonable doubt by the jury as required under Apprendi v. New Jersey (2000) 530 U.S. 466, as construed in Blakely v. Washington (2004) 542 U.S. 296. Substitute: Appellant argues that his Sixth Amendment right to a fair and impartial jury was violated by the trial court s imposition of the upper term on count 4 because the term was based on facts not determined to be true by a jury. Appellant contends the upper term on count 4 must be vacated and the middle term imposed, because the aggravating factors used to justify the upper term were not found true beyond a reasonable doubt by the jury as required under Apprendi v. New Jersey (2000) 530 U.S. 466, as construed in Blakely v. Washington (2004) 542 U.S. 296. In the Disposition section: Strike: The trial court is ordered to delete the section 12022.7 enhancement and prepare a new abstract of judgment. In all other respects, the judgment of the trial court is affirmed. Substitute: The trial court is ordered to impose and stay the section 12022.7 enhancement and prepare a new abstract of judgment. In all other respects, the judgment of the trial court is affirmed. Defendant and Appellant s petition for rehearing is denied. This modification effects no change in the judgment. ________________________________________________________________________ COOPER, P. J. RUBIN, J. FLIER, J.
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