Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. NA055388
ORDER MODIFYING OPINION AND DENYING REHEARING
Cooper, P. J. Rubin, J. Flier, J.
It is ordered that the opinion filed January 24, 2008 be modified as follows:
By deleting on page 13 in the Discussion section, “Waiver” sub-section, the entire paragraph.
By adding the following:
“We begin by rejecting the Attorney General’s argument that defendant forfeited his constitutional challenge by failing to object to the sentencing procedure below. Appellant’s was sentenced after the decision of the United States Supreme Court in Blakeley, supra, 542 U.S. 296, but before the decision of the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238. It seems to this court to be inappropriate to try and weave a path through the various decisions affecting the manner by which a trial judge can determine and announce a constitutional decision to impose a high term sentence in an effort to salvage the high term in this case. A remand for resentencing will allow the trial judge to take into account all of the legal developments which have taken place since the original sentence in this case and decide, in compliance with the law as it currently stands, whether a high term sentence for Mr. Kelly on count 5 is the proper sentence.”
There is no change in judgment.
Appellant’s petition for rehearing is denied.