P. v. Gonzalez

Filed 4/14/05 P. v. Gonzalez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
CHANGE IN JUDGMENT
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
PETER SAMUEL GONZALEZ and
JOSE LUIS MARTINEZ,
Defendants and Appellants.
B171456
(Los Angeles County
Super. Ct. No. BA222996)
ORDER MODIFYING OPINION
AND DENYING REHEARING
THE COURT:
It is ordered that the opinion filed herein on March 15, 2005, be modified as
follows.
1. On page 14, the first full paragraph is deleted. In its place, the following
paragraphs are added:
“With respect to the substantive count, the court sentenced Gonzalez to the
high term because Gonzalez’s convictions were numerous, of increasing
seriousness, and involved a large amount of contraband. The trial court correctly

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considered the number and seriousness of Gonzalez’s prior convictions in
exercising its discretion in applying a sentence because those factors involve the
fact of Gonzalez’s prior convictions.
“The Attorney General points out that challenges to the finding of
numerosity or increasing seriousness of the convictions should have been raised in
the trial court, and we agree. Although Gonzalez did not forfeit the right to assert
error based on the principles of Blakely, the reason is that Blakely extended the
Apprendi rationale into a new area, and a defendant cannot have forfeited a legal
argument that was not recognized at the time of his trial. Gonzalez, however,
should have mounted any challenge to the trial court’s exercise of its sentencing
discretion in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 353.)
Imposition of the upper term was permissible based on Gonzalez’s prior
convictions.”
2. On page 15, line five, the following sentence is deleted: “The case is remanded
for resentencing.” In its place, the following sentence is added: “The case is remanded
for resentencing on the gang enhancement.”
Plaintiff and Respondent’s petition for rehearing is denied.
This modification effects a change in the judgment.
________________________________________________________________________
COOPER, P. J. RUBIN, J. FLIER, J.

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