P. v. Rodriguez 6/1/07 CA1/1

State: California

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

Docket No: A108071A

Case Date: 08/09/2007

Preview:Filed 6/1/07 P. v. Rodriguez CA1/1 Opinion following remand from U.S. Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. ALFREDO GOMEZ RODRIGUEZ, Defendant and Appellant. (Mendocino County Super. Ct. No. SCUKCRCR04-608542) A108071

Under a plea agreement, defendant Alfredo Gomez Rodriguez pleaded guilty to committing a lewd and lascivious act on a child under the age of 14 and admitted a special allegation that he engaged in substantial sexual conduct with the victim. The trial court sentenced him to the upper term sentence of eight years. Defendant appealed from the imposition of the upper term sentence, contending that the trial court committed prejudicial error by: (1) disregarding significant mitigating factors shown in the record, and (2) relying on aggravating circumstances neither admitted in his plea nor proven beyond a reasonable doubt to a jury. We affirmed the judgment in an opinion issued on September 29, 2005. On February 20, 2007, the United States Supreme Court granted certiorari, vacated the judgment, and remanded the case to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We have recalled the remittitur and afforded the parties an opportunity to file supplemental briefs on the effect of Cunningham on the issues presented. We now vacate defendant's upper

term sentence and remand the case to the trial court for the limited purpose of conducting sentencing proceedings in accordance with the requirements of Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] (Blakely) and Cunningham. I. BACKGROUND Defendant was charged by information with committing a lewd and lascivious act on a child under the age of 14 (Pen. Code,

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