P. v. Guevara

Filed 2/20/07  P. v. Guevara CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            The petition for rehearing is denied.  The opinion filed in this matter on January 18, 2007, is modified as follows:

            On page 30 delete the paragraph that begins at the bottom of the page and replace it with the following paragraph:

Because we are reversing defendant's conviction on several counts and remanding the matter to the trial court, a remand that will ultimately require resentencing, we will only briefly address defendant's claim that he was entitled to have a jury decide the facts the trial court relied on to impose upper term and consecutive sentences.  The United States Supreme Court recently resolved defendant's upper term sentencing claim in Cunningham v. California (Jan. 22, 2007, 05-6551) 549 U.S. ___ [2007 D.A.R. 1003], and the trial court must comply with that decision when resentencing defendant on remand.  The Supreme Court did not address consecutive sentences in Cunningham.  The controlling authority on that issue is People v. Black (2005) 35 Cal.4th 1238, 1261-1264, in which our state Supreme Court held that a defendant is not entitled to have a jury decide the facts a trial court relies on to impose consecutive sentences.

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

            NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/  McKinster                      

                                                Acting P.J.

We concur:

/s/  Gaut                                 

                                             J.

/s/  King                                 

                                             J.

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