People v. Rubio CA2/5

I. INTRODUCTION

Defendant David Gonzalez Rubio petitioned for resentencing under Penal Code section 1172.75,1 and the trial court recalled his sentence, struck three one-year prior prison term enhancements imposed under section 667.5, subdivision (b), struck two gang enhancements, and left the remaining terms of the original sentence unchanged. The abstract of judgment, however, reflected the imposition of a gang enhancement that was not included in the court’s oral pronouncement of judgment. On appeal, the parties agree that the abstract of judgment should be corrected to reflect the trial court’s oral pronouncement. In supplemental briefing, defendant also contends that the court erred by imposing the high term on count 2 because the court relied, in part, on aggravating factors which must now be admitted by the defendant or found true by a jury. We affirm but remand with instructions to amend the abstract to accurately reflect the court’s oral pronouncement.

II. PROCEDURAL BACKGROUND

On November 9, 2006, the Los Angeles County District Attorney (District Attorney) filed an information charging defendant in count 1 with attempted premeditated murder in violation of…