P. v. Zepeda 11/20/07 CA3

State: California

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

Docket No: C053912M

Case Date: 01/16/2008

Preview:Filed 11/20/07

P. v. Zepeda CA3

NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ---THE PEOPLE, Plaintiff and Respondent, v. CECELIA ANTIONETTE ZEPEDA, [NO CHANGE IN JUDGMENT] Defendant and Appellant. C053912 (Super. Ct. No. CM024049) ORDER MODIFYING OPINION AND DENYING REHEARING

THE COURT: It is ordered that the opinion filed in this case on November 1, 2007, be modified as follows: 1. On page 8, delete footnote 4 in its entirety, which begins:

"Because we conclude"; and 2. On page 8, add part III to the DISCUSSION, inserting the

following above the "DISPOSITION": III Defendant contends the trial court erred in imposing the upper term for dissuading a witness by

1

force or threat by relying in part on two facts that are elements of the offense--"threat of great bodily harm" and "threatened witnesses who might cooperate with law enforcement." The People respond that defendant forfeited the issue on appeal by failing to object to the court's use of these sentencing factors below. Even assuming we can review the claim, we find any error was harmless. "A fact that is an element of the crime may not be used to impose the upper term." (Former Cal. Rules of Court, rule 4.420(d), eff. until Jan. 1, 2007 [further rule references are to these rules].) "However, where the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence." (People v. Castorena (1996) 51 Cal.App.4th 558, 562 (Castorena).) Subdivision (b) of section 136.1 provides in pertinent part: "Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [

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