P. v. Gonzalez 4/14/05 CA2/8

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B171456M

Case Date: 07/20/2005

Preview:Filed 4/14/05 P. v. Gonzalez CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

CHANGE IN JUDGMENT IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

THE PEOPLE, Plaintiff and Respondent, v. PETER SAMUEL GONZALEZ and JOSE LUIS MARTINEZ, Defendants and Appellants.

B171456 (Los Angeles County Super. Ct. No. BA222996) ORDER MODIFYING OPINION AND DENYING REHEARING

THE COURT:

It is ordered that the opinion filed herein on March 15, 2005, be modified as follows.

1. On page 14, the first full paragraph is deleted. In its place, the following paragraphs are added:

"With respect to the substantive count, the court sentenced Gonzalez to the high term because Gonzalez's convictions were numerous, of increasing seriousness, and involved a large amount of contraband. The trial court correctly

considered the number and seriousness of Gonzalez's prior convictions in exercising its discretion in applying a sentence because those factors involve the fact of Gonzalez's prior convictions. "The Attorney General points out that challenges to the finding of numerosity or increasing seriousness of the convictions should have been raised in the trial court, and we agree. Although Gonzalez did not forfeit the right to assert error based on the principles of Blakely, the reason is that Blakely extended the Apprendi rationale into a new area, and a defendant cannot have forfeited a legal argument that was not recognized at the time of his trial. Gonzalez, however, should have mounted any challenge to the trial court's exercise of its sentencing discretion in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 353.) Imposition of the upper term was permissible based on Gonzalez's prior convictions."

2. On page 15, line five, the following sentence is deleted: "The case is remanded for resentencing." In its place, the following sentence is added: "The case is remanded for resentencing on the gang enhancement."

Plaintiff and Respondent's petition for rehearing is denied.

This modification effects a change in the judgment.

________________________________________________________________________ COOPER, P. J. RUBIN, J. FLIER, J.

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