P. v. Owens
This is defendants second appeal in this matter. In his first appeal, case No. E036788, we found that the trial court erred in imposing a full, consecutive term on count 2 pursuant to Penal Code section 667.6, subdivision (c) because it was unaware of its sentencing discretion, and we remanded the matter for resentencing for the trial court to exercise that sentencing discretion. We also directed the trial court to prepare and forward to the appropriate agencies an amended abstract of judgment that reflected the noted modifications to defendants sentence and that also reflected that defendant was convicted of assault with intent to commit oral copulation on count 2. In all other respects, we affirmed the judgment. (See People v. Owens (June 20, 2006, E036788) [nonpub. opn.] (Owens I).)
Following remand, the trial court exercised its sentencing discretion as ordered by this court, then imposed the same 25 year sentence it had previously imposed, including the upper term sentence on count 2. In this second appeal, defendant claims the 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, supra, 542 U.S. 296, and Apprendiv. 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 on count 2. Under the California Supreme Courts recent decision in People v. Black (2007) Cal.4th [2007 WL 2050875] (Black II), Court reject this contention and affirm the judgment.
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