Overby

The petition for rehearing was granted in this case to consider the impact, if any, of the recent United States Supreme Court decision in Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403 , 124 S.Ct. 2531 ] (Blakely) on this court’s opinion. After considering the petition on *1240 rehearing, we find no reason to alter the opinion in any respect other than to add a final section to address the Blakely arguments raised by appellant’s petition. We therefore reissue the opinion with the addition of section VIII.

Defendant and appellant Christopher Overby was convicted of attempted murder (Pen. Code, 1 §§ 664, 187, subd. (a)), two counts of first degree burglary (§ 459), first degree robbery (§ 211), forcible sodomy with special circumstances (§§ 286, subd. (c)(2), 667.61, subds. (a), (b), & (e)), and arson of an inhabited structure (§451, subd. (b)). Overby seeks reversal of his conviction because the trial court reseated a juror as a remedy for a Batson-Wheeler 2 violation without Overby’s consent, failed to conduct a hearing to determine whether the jury was tainted by one juror’s misconduct, erroneously admitted a bloodstained shirt into evidence, and…

Appellant’s petition for review by the Supreme Court was denied March 2, 2005. George, C. J., did not participate therein. Kennard, J., was of the opinion that the petition should be granted.

Certified for Partial Publication. [*]

The petition for rehearing was granted in this case to consider the impact, if any, of the recent United States Supreme Court decision in Blakely v. Washington (2004) 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 ( Blakely ) on this court's opinion. After considering the petition on rehearing, we find no reason to alter the opinion in any respect other than to add a final section to address the Blakely arguments raised by appellant's petition. We therefore reissue the opinion with the addition of section VIII.

Defendant and appellant Christopher Overby was convicted of attempted murder (Pen.Code, [1] §§ 664, 187, subd. (a)), two counts of first degree burglary (§ 459), first degree robbery (§ 211), forcible sodomy with special circumstances (§§ 286, subd. (c)(2), 667.61, subds. (a), (b), & (e)), and arson of an inhabited structure (§ 451, subd. (b)). Overby seeks reversal of his conviction because the trial court reseated a juror as a remedy for a Batson-Wheeler [2] violation without Overby's consent, failed to conduct a hearing to determine whether the jury was tainted by one juror's misconduct, erroneously admitted a…