Opinion
NOT TO BE PUBLISHED
Super. Ct. No. F03905803-3 & F05904096-8
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]
THE COURT
Ardaiz. P. J.
It is ordered that the opinion filed herein on November 8, 2007, be modified as follows:
On page 11 of the opinion, in the paragraph beginning with “Here, there was undisputed evidence that Martinez has a record of prior convictions … ” be replaced with:
Here, there was undisputed evidence that Martinez has a criminal record that indicates that he was a recidivist. Besides the fact that he pled guilty to violating section 261.5(d) with two different victims shortly before jury trial in the present case, Martinez has 14 prior misdemeanor convictions, including one for DUI and four for spousal abuse, and numerous probation violations. Thus, the “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial” because “one legally sufficient aggravating circumstance” – Martinez’s recidivism – “has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, 41 Cal.4th at p. 816.)
This modification does not effect a change in judgment. The petition for rehearing is denied.
WE CONCUR: Vartabedian, J., Harris, J.