P. v. Esquibel
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Filed 9/29/08 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT THE PEOPLE, Plaintiff and Respondent, B165767 (Los Angeles County Super. Ct. No. TA065805) v. PETER ESQUIBEL, ORDER MODIYING OPINION Defendant and Appellant. THE COURT: It is ordered that the opinion filed in this matter on August 29, 2008, be modified as follows: In the PRODECURAL BACKGROUND section, second paragraph, With respect to counts 2 through 4 is deleted and replaced with With respect to counts 2 through 5 . In the PRODECURAL BACKGROUND section, sixth paragraph, On September 9, 2005, the California Supreme Court remanded the case to this court for further consideration in light of United States v. Booker (2005) 543 U.S. 220 (Booker) and People v. Black ( 2005) 35 Cal.4th 1238, 1257-1261 (Black I), is deleted and replaced with On September 9, 2005, the California Supreme Court remanded the case to this court for further consideration in light of People v. Black ( 2005) 35 Cal.4th 1238, 1257-1261 (Black I). In the PRODECURAL BACKGROUND section, seventh paragraph, the following is deleted: Pursuant to the direction of the California Supreme Court, we recalled the remittitur issued in Esquibel I and received further briefing from the parties. Appellant maintained his original contentions and added the contention that his Sixth Amendment right to a fair and impartial jury was violated by the trial court s imposition of the upper term because the term was based on facts not determined to be true by a jury. Respondent argued waiver. In the PRODECURAL BACKGROUND section, seventh paragraph, the following is deleted: (People v. Esquibel (September 30, 2006, B165767 [nonpub. opn.] (Esquibel II).) and replaced with (People v. Esquibel (2006) 143 Cal.App.4th 645 (Esquibel II).) In the PRODECURAL BACKGROUND section, ninth paragraph, June 5, 2007 is deleted and replaced with March 20, 2007 . In the PRODECURAL BACKGROUND section, ninth paragraph, vacated our judgment in Esquibel I, and on July 10, 2007 is deleted and replaced with vacated our judgment in Esquibel II, and on May 29, 2007 . In the PRODECURAL BACKGROUND section, paragraphs ten and eleven are deleted in their entirety. In the STATEMENT OF FACTUAL HISTORY section, seventh paragraph, The trial judge called counsel to side bar and, after some discussion, is deleted and replaced with The trial judge called counsel to side bar and . 2 In the DISCUSSION section, Constitutional Right to a Public Trial subsection, second paragraph, People v. Woodward (1992) 4 Cal.4th 376, 385 is replaced with People v. Woodward (1992) 4 Cal.4th 376, 381 . In the DISCUSSION section, Waiver or Forfeiture of Blakely Error subsection, second paragraph, upper term on both convictions is deleted and replaced with upper term on count 4 . These modifications effect no change in the judgment COOPER, P. J. RUBIN, J. 3 FLIER, J.
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