P. v. Allen
Curtis Allen was convicted of possession of cocaine base for sale and possession of cocaine base. (Health & Saf. Code, 11351.5, 11350, subd. (a).) In his appeal he contends the trial court abused its discretion when it denied his motions to relieve counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 and violated his Sixth Amendment right to a jury trial when it imposed an aggravated term.
In an unpublished opinion filed on November 18, 2005, Court affirmed the judgment in its entirety. Allens petition for a writ or certiorari to the United States Supreme Court was filed on April 13, 2006. On February 20, 2007, Allens petition was granted and the matter remanded to us with an order to vacate our previous opinion and reconsider the matter in light of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856].
Cunningham held that Californias Determinate Sentencing Law violated the Sixth Amendment to the Constitution to the extent it permitted an aggravated sentence to be imposed on factors that were found true by the judge, not the jury, and were found true by a preponderance of the evidence instead of beyond a reasonable doubt. (Cunningham v. California, supra, 549 U.S. at p. [127 S.Ct. at p. 868].) The only exception to these requirements is the fact of a prior conviction. (Ibid.) In light of Cunningham, Court reconsider the issue of Allens sentence. Court republish the remainder of our original opinion as it is not affected by the remand from the United States Supreme Court.
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