P. v. Mejia

Filed 8/10/07 P. v. Mejia CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT:

It is ordered that the opinion filed herein on July 13, 2007, be modified as follows:

1. On page 23, the third full paragraph, beginning These aggravating factors is deleted and the following paragraph is inserted in its place:

These aggravating factors were neither admitted by appellant nor found true beyond a reasonable doubt by a jury. Referring us to Washington v. Recuenco (2006) 548 U.S. ___ [126 S.Ct. 2546] and People v. Sengpadychith (2001) 26 Cal.4th 316, respondent argues that Cunningham error is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18. Further, People v. Sandoval (July 19, 2007, S148917 ) ___ Cal.4th ___ [2007 Cal. Lexis 7606, p. *19]) has recently stated, if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless. We reject respondents further argument that sufficient evidence of the three aggravating factors was presented to the jury.

2. On page 24, the first full paragraph, beginning As to the first is deleted and the following paragraph is inserted in its place:

As to the first aggravating factor, the trial court found that the crime involved the threat of great bodily harm. However, the jury acquitted appellant of the charge of assault by means of force likely to produce great bodily injury (count 2), creating at least a reasonable doubt as to whether the jury would have found true the first aggravating factor. We reach the same conclusion regarding the second aggravating factor, that the crime was carried out with planning and sophistication. While it is true that the victim testified that she saw a pillow placed next to the bed that she had previously never seen, and that appellant secured the bedroom door in a way unusual under ordinary circumstances, it is also true that the speed gloves used by appellant were a part of the workout equipment he kept in the bedroom, and the objects with which he attempted to smother the victim were an ordinary plastic shopping bag and a pillow. Given these circumstances, we cannot say beyond a reasonable doubt the jury would have found appellants actions indicated planning and sophistication. We are also unable to conclude, beyond a reasonable doubt, that the jury would have found true the third aggravating factor relied on by the trial court, that appellant was convicted of crimes indicating he is a serious danger to society. Therefore, we vacate the aggravated term imposed on count 1 by the trial court and remand for resentencing.¹³ (People v. Sandoval, supra, [2007 Cal. Lexis 7606, pp. *18-*29].)

There is no change in the judgment.

Respondents petition for rehearing is denied.

Dated: , P. J.

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