P. v. Martinez
Pursuant to the Supreme Courts order of August 27, 2008, we vacate our decision in this case, filed March 9, 2007, and reconsider in light of People v. Towne (2008) 44 Cal.4th 63 (Towne), filed June 26, 2008.
Raymond Martinez was convicted of the first degree murder of Cesar Delatorre (count 1), with an enhancement for personal discharge of a firearm, causing death. He also was convicted of possession of a controlled substance (count 2), because methamphetamine was found in his pocket when he was arrested. He was sentenced to prison for 50 years to life on count 1, plus the upper term of three years on count 2. He contends: (1) The trial court should not have refused to instruct that a felony murder does not occur when a felony is committed in the course of an intentional murder. (2) Imposition of the upper term on count 2 violated his Sixth and Fourteenth Amendment rights of the United States Constitution to a jury trial. Court reject appellants instructional error, find no error from imposition of the upper term on count 2, and affirm.
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