Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Los Angeles County Super. Ct. No. GA061263
ORDER MODIFYING OPINION AND DENYING REHEARING
JACKSON, J. VOGEL, Acting P. J., ROTHSCHILD, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
It is ordered that the opinion filed herein on November 30, 2007, be modified as follows:
1. On page 2, line 13, after “We agree with defendant’s claims of sentencing error” insert “in part.”
2. On page 16, lines 3-5 are deleted. The following is inserted in their place:
“Imposition of the upper term sentence thus violated his Sixth Amendment right to a jury trial. (People v. Sandoval (2007) 41 Cal.4th 825, 837-838.)
“The question before us becomes whether this violation was harmless beyond a reasonable doubt. (People v. Sandoval, supra, 41 Cal.4th at p. 838; see Chapman v. California (1967) 386 U.S. 18, 24.) Specifically, ‘we must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.’ (Sandoval, supra, at p. 838; People v. Black, supra, 41 Cal.4th at p. 813.) Under Sandoval, if we ‘conclude[], 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.’ (Sandoval, supra, at p. 839.)
“We conclude, beyond a reasonable doubt, that the jury would have found beyond a reasonable doubt that the crime involved great violence, great bodily harm or other acts disclosing a high degree of cruelty, viciousness, or callousness. (Cal. Rules of Court, rule 4.421(a)(1).) Defendant choked, beat and bit Amy, causing her to choke on her own blood, and leaving blood all over her face and shirt. She was treated by paramedics and taken to the hospital, where she received further treatment for her injuries. Amy returned to the hospital two days later, complaining of pain in her ear. At the time of trial, over a year later, she continued to have pain in her nose and ear. On this evidence, the jury could not fail to find great violence, great bodily harm or other acts disclosing a high degree of cruelty, viciousness, or callousness. (See People v. Escobar (1992) 3 Cal.4th 740, 750; People v. Marshall (1987) 196 Cal.App.3d 1253, 1260.) The Sixth Amendment error therefore was harmless.”
3. On page 16, line 6, the following is deleted: “to impose the middle term sentence on count 1 and.”
The petition for rehearing is denied.