P. v. Johnson
Filed 5/14/07 P. v. Johnson CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, Plaintiff and Respondent, v. DAVID M. JOHNSON, Defendant and Appellant. | A113097 (Sonoma County Super. Ct. No. SCR472541) ORDER MODIFYING OPINION AND DENYING REHEARING |
[NO CHANGE IN JUDGMENT] |
THE COURT:
It is ordered that the opinion filed herein on April 13, 2007, be modified as follows:
The text in the Conclusion on page 14 is deleted, and the following text will be inserted in its place:
The sentence is vacated with directions that on remand the court shall hold a hearing at which it may reinstate the sentence if, based upon its weighing of the aggravating factors it properly found under the Almendarez-Torres exception (Almendarez-Torres v. United States, supra, 523 U.S. 224), and the factors in mitigation, it exercises its discretion to impose the upper terms. If the court does not reinstate the sentence on these grounds, then it shall resentence defendant consistent with Cunningham, supra, 127 S.Ct. 856, and the views expressed in this opinion.
Defendants petition for rehearing is denied.
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Marchiano, P. J.
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