P. v. Brumbaugh
This is the second time this court has confronted the same issue in this case. In 2004, defendant first raised the constitutional violation based on the newly decided opinion in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]. In October 2005, Court disagreed with defendants position and issued an opinion affirming the judgment based on People v. Black (2005) 35 Cal.4th 1238, 1244, 1254 (Black I). (People v. Brumbaugh (Oct. 31, 2005, C047490) [nonpub. opn.].) Our state Supreme Court denied defendants petition for review. (Jan. 18, 2006, S139404.) Defendant then filed a petition for writ of certiorari in the United States Supreme Court (docket No. 05 10477). The United States Supreme Court subsequently decided Cunningham, supra, 549 U.S. [166 L.Ed.2d 856] in January of 2007, rejecting the state Supreme Courts reasoning in Black I. The United States Supreme Court granted defendants petition, vacated the judgment of this court, and remanded the cause to us for further consideration in light of Cunningham. The parties provided supplemental briefing, including a response to questions posed by the court.
Court agree with defendants contention and remand to the trial court for resentencing consistent with the California Supreme Courts decision in People v. Sandoval (2007)41 Cal.4th 825(Sandoval).
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