P. v. Calderon
A jury convicted defendant of willful cruelty to animals (Pen. Code, 597, subd. (a)) (count 1), with personal use of a handgun ( 1192.7, subd. (c)(8), 12022.5, subd. (a)). The jury also found defendant guilty of being a felon in possession of a firearm ( 12021, subd. (a)(1)) (count 2). Defendant thereafter admitted that he had suffered two prior prison terms (667.5, subd. (b)) and one prior strike conviction ( 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1).) He was sentenced to a total term of 18 years in state prison: the upper term of three years on count 1, doubled to six years for the prior strike allegation, plus a consecutive upper term of 10 years for the gun use enhancement, plus two consecutive one year terms for the two prior prison term enhancements, and a concurrent term of one year four months on count 2.
On appeal, defendant contends (1) the trial court relied on improper factors in aggravation to impose the upper term on count 1 and the gun-use enhancement; (2) he was deprived of his federal and state constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. 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 1 and the upper term on the gun-use enhancement; and (3) the trial court erred in failing to give defendants requested jury instruction regarding the prosecutions failure to disclose specific testimony of witness Sandra Nunez. In light of the United States Supreme Courts recent decision in Cunningham v. California (2007) U .S. [127 S.Ct. 856] (Cunningham), Court conclude the courts imposition of the three year upper term sentence on count 1 based on judicial factfinding denied defendant of his federal constitutional rights to a jury trial and proof beyond a reasonable doubt, and thus the matter must be remanded for resentencing.
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