P. v. Johnson

Filed 2/8/07  P. v. Johnson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

            The petition for rehearing filed in the above-referenced matter is denied.  On the court's own motion and for good cause shown, section II of the opinion filed in the above-referenced matter on January  16, 2007, is hereby replaced with the following:

II.        Blakely

            Johnson contends that by imposing the upper term on count  4 and the consecutive term on count  3 based on factors including the use of a toy weapon, the number and increasing seriousness of his prior convictions, and his unsatisfactory performance on probation, the trial court violated his Sixth and Fourteenth Amendment rights to a jury trial and proof of all facts beyond a reasonable doubt.  (Blakely v. Washington (2004) 542 U.S. 296 (Blakely); Cunningham v. California (2007) ___ U.S. ___ [___ S.Ct. ___, ___ L.Ed.2d ___; 2007 WL 135687] (Cunningham).)

            The trial court imposed the upper term based on the following facts:  The crime involved great violence because Johnson held what was perceived as a gun to the victim's head during the incident; Johnson was armed with what was perceived by the victim to be a hand gun; Johnson's prior adult convictions and juvenile adjudications are numerous and significant; Johnson was on four grants of misdemeanor probation when the crime occurred; Johnson's prior performance on juvenile and misdemeanor probation has been unsatisfactory; and the crime was committed in the presence of an 11-month-old baby.  The court concluded, â€