P. v. Johnson
David M. Johnson appeals following his conviction of kidnapping (Pen. Code, 207, subd. (a)), willful infliction of corporal injury on a spouse with a prior conviction ( 273.5, subds. (a) & (e)(1)), assault with a deadly weapon ( 245, subd. (a)(1)), and making criminal threats ( 422).) With respect to the kidnapping and corporal injury on a spouse counts, the jury also found true allegations that defendant had inflicted great bodily injury ( 12022.7, subd. (a).) The court sentenced defendant on the kidnapping count to the upper term of eight years, and three years for the enhancement. It also imposed the upper term on the remaining counts, but stayed the terms pursuant to section 654.
Defendant contends that his conviction for kidnapping must be reversed because the instructions on withdrawal of consent allowed the jury to convict him without finding the requisite intent. He also contends that in violation of Cunningham v. California (2007) 549 U.S.[127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), the court imposed the aggravated term on each count based upon aggravating factors that must, absent defendants waiver, be submitted to a jury.
The sentence is vacated with directions that on remand the court may reinstate the sentence if based upon its weighing of the aggravating factors it properly found under the Almendarez-Torres exception (Almendarez-Torres v. United States, supra, 523 U.S. 224), and the factors in mitigation, it exercises its discretion to impose the upper terms. If the court does not reinstate the sentence on these grounds, then it shall hold a resentencing hearing consistent with Cunningham, supra, 127 S.Ct. 856, and the views expressed in this opinion. In all other respects the judgment is affirmed.
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