P. v. Martinez

1
Filed 4/20/07 P. v. Martinez CA1/1
Opinion following remand from U.S. Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
NICHOLAS JOHN MARTINEZ, JR.,
Defendant and Appellant.
A104728
(Lake County Super. Ct.
Nos. CR 5244 & CR032574)
MEMORANDUM OPINION
On February 20, 2007, the United States Supreme Court issued an order in this
case granting certiorari, vacating the judgment, and remanding to this court for further
consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856,
166 L.Ed.2d 856] (Cunningham).
Pursuant to this mandate, we have recalled the remittitur. We have re-examined
our initial opinion in this case (People v. Martinez (Nov. 19, 2004, A104728) [nonpub.
opn.]), which remains on file with this court, and which we hereby incorporate by
reference into this order.
In our prior opinion, we held that the imposition of the aggravated term violated
Blakely v. Washington (2004) 542 U.S. 296 (Blakely), because the aggravating facts were
neither admitted by defendant in the course of entering his no contest plea nor decided by
a jury beyond a reasonable doubt. We also held that the error cannot be harmless in this
case, and remanded for resentencing.

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2
Cunningham applies Blakely to California sentencing law, and only confirms the
validity of our initial holding. “Because we deem it unnecessary to modify our prior
opinion, we reiterate that opinion in its entirety.” (City of Long Beach v. Bozek (1983) 33
Cal.3d 727, 728.)1
Let the remittitur issue forthwith and the case is hereby sent back for resentencing.
______________________
Marchiano, P.J.
We concur:
______________________
Stein, J.
______________________
Swager, J.
1 We recognize that the Court of Appeal cases cited in our prior Blakely harmless
error analysis have been the subject of grants of review since we filed our initial opinion.
But the rationale of those cases has not changed.

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