P. v. Woodson
Defendant appeals his sentence following conviction by jury trial of the following offenses: count 1--murder (Pen. Code, 187, subd. (a); undesignated section references are to the Penal Code); count 2--assault on a child with force likely to produce great bodily injury resulting in death ( 273ab); count 4--felony child abuse ( 273a, subd. (a)) and count 5--infliction of corporal injury on the mother of a child ( 273.5, subd. (a)).
Defendants convictions resulted from the death of defendants 11-month-old son who, upon examination at the UC Davis Medical Center on April 28, 2005, had bruises on his head, torso, buttocks and leg. Defendant had earlier struck the child, causing a black eye, in February, 2005.
In this appeal, defendant challenges only the imposition of the upper term of six years on count 4, violation of section 273a, subdivision (a), on the ground the upper term was imposed based upon an aggravating factor not found by the jury as required by Cunningham v. California (2007) 549 U.S.[127 S.Ct.; 166 L.Ed.2d 856] and Blakely v. Washington (2004) 542 U.S. 296.
The upper term sentence on count 4 is vacated and the matter is remanded to the trial court. Within 30 days, the District Attorney shall elect whether to try aggravating factor(s) to a jury or whether to stipulate to imposition of the midterm on count 4. In all other respects, the judgment is affirmed.
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