P. v. Holzhauser
Defendant was convicted following a jury trial of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)), misdemeanor assault (Pen. Code, 240), and making a criminal threat (Pen. Code, 422).[1] He received a four-year upper term for assault with a deadly weapon, a three-year concurrent upper term for the conviction of making a criminal threat, and 180 days in county jail for the misdemeanor assault conviction. In a prior appeal we reversed the conviction of making a criminal threat for lack of supporting evidence of the victims sustained fear, but otherwise affirmed the judgment. Bound by the California Supreme Court opinion in People v. Black (2005) 35 Cal.4th 1238 (Black), we concluded that defendant was not denied his due process rights to a jury trial and finding of guilt beyond a reasonable doubt under [Blakely v. Washington (2004) 542 U.S. 296] by the trial courts imposition of an upper term.
The United States Supreme Court then reversed Black in Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856, 127 S.Ct. 856](Cunningham), and concluded, Contrary to the Black courts holding, our decisions from Apprendi[] to Booker[] point to the middle term specified in Californias statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent. (Cunningham, supra, 166 L.Ed.2d 856, 876.) This case has now been remanded to us for further consideration in light of Cunningham. Court conclude that no prejudicial sentencing error occurred and affirm the judgment.
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