P. v. Vogt
A jury found defendant guilty of theft or embezzlement from an elder by a caretaker in violation of Penal Code section 368, subdivision (e)., Defendant was sentenced to an upper term of four years in state prison. On appeal, defendant contends (1) his due process right was violated when the trial court refused to allow him to present witnesses at the sentencing hearing; (2) he was deprived of his federal and state constitutional rights to a jury trial and due process under Cunningham v. California (2007) U.S., [127 S .Ct. 856, 868] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed the upper term; and (3) the abstract of judgment must be corrected to reflect the correct amount of fines imposed by the trial court. Court agree, as we must, that defendants upper term sentence runs afoul of Cunningham. Accordingly, Court vacate defendants sentence and remand the matter to the trial court for further proceedings consistent with this opinion.
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