P. v. Saldana
Defendant was convicted after jury trial of two counts of carjacking (Pen. Code, 215; counts 1 & 4),[1] and three counts of second degree robbery ( 211, 212.5, subd. (c); counts 2, 3 & 5). The jury also found true allegations that defendant was armed with a handgun ( 12022, subd. (a)(1)) during the commission of all the offenses, and that he personally used a handgun ( 12022.53, subd. (b)) during the commission of counts 1, 2, 4 and 5. Defendant admitted having served a prior prison term. ( 667.5, subd. (b).) The trial court sentenced defendant to 26 years, four months in state prison.
On appeal defendant contended that (1) the trial court erred in failing to honor his timely request to proceed in propria persona, (2) the court misinstructed the jury on the use of evidence of uncharged offenses, (3) the court prejudicially erred when it gave CALJIC No. 2.03, (4) the cumulative effect of the above errors denied him due process, (5) the courts imposition of an upper term on the one count and consecutive terms on two others violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely), (6) the order to pay attorneys fees is not supported by substantial evidence, and (7) clerical errors in the abstract of judgment should be corrected. On August 18, 2005, we struck the order to pay attorneys fees, ordered the abstract of judgment corrected to accurately reflect the trial courts sentence, and affirmed the judgment as so modified. Our Supreme Court denied review, but the United States Supreme Court granted defendants petition for a writ of certiorari, vacated our opinion, and remanded the matter back to us for reconsideration in light of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). Upon reconsideration of the Blakely issue following Cunningham, Court find that the matter must be reversed and remanded for resentencing.
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