P. v. White
Filed 9/21/07 P. v. White CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. ROGER RUSS WHITE, Defendant and Appellant. | H029586 (Santa Clara County Super. Ct. No. EE403917) ORDER MODIFYING OPINION AND DENYING REHEARING CHANGE IN JUDGMENT |
THE COURT:
It is ordered that the opinion filed herein on August 23, 2007, be modified as follows:
1. On page 15, the second sentence of the first full paragraph commencing with Defendant is and ending with for resentencing is deleted.
2. On page 15, after the fourth full paragraph ending with found true by a jury the following paragraph is inserted:
In the recent California Supreme Court case of People v. Black (2007) 41 Cal.4th 799 (Black II), the court considered the issue of multiple aggravating factors contributing to the imposition of the upper term and concluded that if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (Black II, supra, 41 Cal.4th at p. 813, fn. omitted.)
3. On page 16, line 7, the sentence starting with However, even if and ending with valid factor is deleted.
4. On page 16, the second full paragraph starting with Here, the record and ending with for re-sentencing is deleted and the following paragraph is inserted in its place:
Based on the holding of Black II, the courts consideration of defendants prior prison term was constitutionally appropriate, and supported the courts imposition of the upper term on the Penal Code section 288, subdivision (a) conviction.
5. On page 19, line 11, the sentencing commencing with The matter and ending with section 288, subdivision (a) is deleted.
This modification changes the judgment.
Respondents petition for rehearing is denied.
Dated: ____________________________________
RUSHING, P.J.
I CONCUR:
_________________________________
ELIA, J.
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