P. v. Martinez
This is Jose Luis Martinezs second appeal from his criminal conviction. We previously remanded the case to the trial court for resentencing. (People v. Gonzalez & Martinez (May 15, 2005) nonpub. opn. B171456, at p. 15.) Without the benefit of the recent cases Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct 856] (Cunningham), People v. Black (2007) 41Cal.4th 799 (Black II), and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), the trial court sentenced appellant to the upper term for a gang enhancement pursuant to Penal Code section 186.22 and to the midterm on all other counts and enhancements.
The law has changed since the trial court sentenced Martinez. Under the current law, the error in sentencing appellant to the upper term for the gang enhancement was not harmless beyond a reasonable doubt. Therefore, the case must be reversed in part and remanded for resentencing on the section 186.22 enhancement. In all other respects, the judgment is affirmed.
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