Opinion
Page 1667a
166 Cal.App.4th 1667a __ Cal.Rptr.3d__ THE PEOPLE, Plaintiff and Respondent, v. PETER ESQUIBEL, Defendant and Appellant. B165767O California Court of Appeal, Second District, Eighth Division September 29, 2008Los Angeles County Super. Ct. No. TA065805
THE COURT:It is ordered that the opinion filed in this matter on August 29, 2008, (166 Cal.App.4th 539;___Cal.Rptr.3d___) be modified as follows:
In the PROCEDURAL BACKGROUND section, second paragraph [166 Cal.App.4th 544, advance report, 2d par., line 12], "With respect to counts 2 through 4” is deleted and replaced with “With respect to counts 2 through 5”.
In the PROCEDURAL BACKGROUND section, sixth paragraph [166 Cal.App.4th 545, advance report, 2d par., lines 7-8], "On September 9, 2005, the California Supreme Court remanded the case to this court for further consideration in light of United States v. Booker (2005) 543 U.S. 220 [160 L.Ed.2d 621, 125 S.Ct. 738] (Booker) and People v. Black (2005) 35 Cal.4th 1238, 1257-1261 [29 Cal.Rptr.3d 740, 113 P.3d 534] (Black I),” is deleted and replaced with “On September 9, 2005, the California Supreme Court remanded the case to this court for further consideration in light of People v. Black (2005) 35 Cal.4th 1238, 1257-1261 [29 Cal.Rptr.3d 740, 113 P.3d 534] (Black I).”
In the PROCEDURAL BACKGROUND section, seventh paragraph [166 Cal.App.4th 545, advance report, 3d par., lines 1-6], the following is deleted: “Pursuant to the direction of the California Supreme Court, we recalled the remittitur issued in Esquibel I and received further briefing from the parties. Appellant maintained his original contentions and added the contention that his Sixth Amendment right to a fair and impartial jury was violated by the trial court’s imposition of the upper term because the term was based on facts not determined to be true by a jury. Respondent argued waiver.”
In the PROCEDURAL BACKGROUND section, seventh paragraph [166 Cal.App.4th 545, advance report, 3d par., line 9], the following is deleted: “(People v. Esquibel (September 30, 2006, B165767 [nonpub. opn.] (Esquibel II).)” and replaced with “(People v. Esquibel (2006) 143 Cal.App.4th 645 [49 Cal.Rptr.3d 393] (Esquibel II).)”
Page 1667b
In the PROCEDURAL BACKGROUND section, ninth paragraph [166 Cal.App.4th 546, advance report, 1st full par., line 1], "June 5, 2007” is deleted and replaced with “March 20, 2007”.
In the PROCEDURAL BACKGROUND section, ninth paragraph [166 Cal.App.4th 546, advance report, 1st full par., line 4], "vacated our judgment in Esquibel I, and on July 10, 2007” is deleted and replaced with “vacated our judgment in Esquibel II, and on May 29, 2007”.
In the PROCEDURAL BACKGROUND section, paragraphs ten and eleven [166 Cal.App.4th 546, advance report, 2d & 3d full pars.], are deleted in their entirety.
In the STATEMENT OF FACTUAL HISTORY section, tenth paragraph [166 Cal.App.4th 548, advance report, 3d par., lines 4-5], "The trial judge called counsel to side bar and, after some discussion,” is deleted and replaced with “The trial judge called counsel to side bar and”.
In the DISCUSSION section, Constitutional Right to a Public Trial subsection, second paragraph [166 Cal.App.4th 551, advance report, 3d par., line 11], "People v. Woodward (1992) 4 Cal.4th 376, 385 [14 Cal.Rptr.2d 434, 841 P.2d 954]" is replaced with People v. Woodward (1992) 4 Cal.4th 376, 381 [14 Cal.Rptr.2d 434, 841 P.2d 954]".
In the SENTENCING ERRORS section, Waiver or Forfeiture of Blakely Error subsection, second paragraph [166 Cal.App.4th 556, advance report, 4th par., lines 2-3], "upper term on both convictions” is deleted and replaced with “upper term on count 4”.
These modifications effect no change in the judgment