1 Filed 7/3/14 P. v. Uribe CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. DAVID RUBEN URIBE, Defendant and Appellant. E059294 (Super.Ct.No. RIF123822)

OPINION

APPEAL from the Superior Court of Rive rside County. Craig G. Riemer, Judge.

Affirmed with directions. Richard A. Levy, under ap pointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Atto rney General, A. Natasha Cortina and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.2 In People v. Uribe , et al. (March 13, 2 013, E053314) (original opinion), this court, inter alia, rejected the assertion of defendant , David Uribe, that the dying declaration of

the victim was admitted into evidence in violation of the Confrontation Clause. Also, as part of that opinion, we reversed, for insuffici ency of the evidence, inter alia, the jury’s true findings as to allegations under Penal Code sections 12022.53, subdivision (e) and 186.22, subdivision (b). 1 We directed the trial court to strike the 25 years-to-life terms it had imposed for the section 12022.53, subdi vision (e) enhancement and the term it had stayed for the section 186.22, subdivision (b ) enhancement in the event the People opted not to retry defendant for those enhancements or defendant was successful in preventing retrial of those enhancements. Subsequent to our original opinion, the People opted not to retry defendant for the enhancements a nd pursuant to their motion, the trial court dismissed the true findings under secti ons 12022.53, subdivis ion (e) and 186.22, subdivision (b), and struck the term imposed for the former and the term stayed for the

latter. Defendant here claims that he cannot petition the Un ited States Supreme Court on

the confrontation clause issu e following our original opini on because in it we remanded the matter to allow the Peop le to determine whether to retry defendant for the enhancements, therefore, he once again raises the confront ation clause issue in this “second bite” of the appellate apple. We reje ct his contention, while noting that nowhere

1 All further statutory references are to the Penal Code unless otherwise indicated.3 in our original opinion did we use the word “rem and.” We further direct the trial court to clear up ambiguities in the minutes of the hearing of July 16, 2013. The facts surrounding these crimes and the offenses a nd true findings made by the jury are set forth in our original opinion and need not be repeated here.

I SSUE AND D ISCUSSION In our original opinion, we said of defe ndant’s claim that admission of the victim’s dying declaration was in violati on of his right to confronta tion, “Defendants acknowledge

that in People v. Monterroso (2004) 34 Cal.4th 743, 764-765, and People v. D’Arcy (2010) 48 Cal.4th 257, 291-292, the Calif ornia Supreme Court concluded that the admission of a dying declaration, whether testimonial or not, does not violate the Confrontation Clause. They also acknowledge that this court is bound by those decisions. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455.) However, in order to preserve the issue for further review, they have asserted that admissions of the victim’s dying declarations violated the Confrontation Clause.” Defendant here repeats his concession th at we are bound by the aforementioned California Supreme Court cases, which rend er his current contention unmeritorious, despite his disagreement with those cases. Mo reover, as the People correctly point out, the position we took on this issu e in the original opinion is law of the case, and, as such, may not be attacked by defendant in this subsequent appeal. ( People v. Barragan (2004) 32 Cal.4th 236, 246; People v. Stanley (1995) 10 Cal.4th 764, 786-787.)4 D ISPOSITION The trial court is directed to omit from th e minutes of July 16, 2013, references to Enhancements “BK,” “SR” and “VF” 2 and to insert, in their place, the Penal Code

sections for the enhancements to which the references are made . In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.

We concur:

RICHLI J.

KING J.

2 While it may be convenient to this particular courtroom to refer to these enhancements by what is apparently a code comprised of initials, since neither this court nor the Department of Corrections is equi pped with the “Enigma machine” to crack the code, the minutes are most unhelpful to both institutions.