P. v. Arzate
Manual Armando Arzate appeals the judgment entered following his conviction by jury of sale of a controlled substance. (Health & Saf. Code, 11352, subd. (a).) The trial court found Arzate had a prior conviction within the meaning of the Three Strikes law (Pen. Code, 667.5, subds. (b)-(i), 1170.12) and sentenced Arzate to the upper term of five years in state prison, doubled to 10 years on account of the prior conviction.
In our original opinion, filed January 23, 2006, Court affirmed Arzates conviction and rejected his claim that imposition of the upper term based on factors not found true by a jury violated Arzates right to jury trial articulated in Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]. On February 28, 2007 the United States Supreme Court, after granting Arzates petition for writ of certiorari, vacated the judgment and remanded the matter to us for further consideration in light of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 166 L.Ed.2d 856]. Court requested and received supplemental briefing from the parties on the effect, if any, of Cunningham on Arzates sentence. We again conclude imposition of the upper term did not violate Arzates Sixth Amendment right to a jury trial and affirm the judgment.
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