P. v. Bejarano

Filed 9/21/07 P. v. Bejarano CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

The opinion filed in this matter on September 12, 2007, is modified as follows:

1. The last sentence on page 2 of the opinion reading, Nonetheless, we find the error harmless beyond a reasonable doubt due to defendants extensive, additional prior convictions which were not used as enhancements in this case[] shall be deleted. It shall be replaced with the following sentences:

Nonetheless, defendants prior conviction record reveals at least one aggravating circumstance, not used as an enhancement, which rendered him eligible for an upper term sentence. Therefore, the trial court acted appropriately in imposing the aggravated term and the judgment is affirmed.

2. The first complete sentence on page 4 of the opinion reading, For the reasons explained below, we conclude that, to the extent the trial court committed Cunningham^[[1]] error, such error was harmless[] shall be deleted. It shall be replaced with the following sentence:

For the reasons explained below, we conclude that the trial courts imposition of the upper term was proper.

Except for this modification, the opinion remains unchanged. This modification does not affect a change in the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Richli

Acting P.J.

/s/ Gaut

J.

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^[1]Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 166 L.Ed.2d 856].