P. v. Prien
This is a second appeal by defendant and appellant Amy Leanne Prien (hereafter defendant). In the first appeal,[1]we reversed defendants second degree murder conviction because it was prosecuted on an illegal theory, namely, second degree felony murder based on child endangerment as the inherently dangerous felony.[2] We also reversed three of defendants four felony child endangerment convictions because they were not supported by substantial evidence.[3] Because the issue was then pending before the California Supreme Court, we declined to resolve defendants challenge under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), to the upper term sentence the trial court had imposed on defendants remaining felony child endangerment conviction and a related great bodily injury enhancement. Instead, we remanded the matter to the trial court for a new trial on the murder charge, with the hope that in the interim between remand and retrial our state Supreme Court would resolve the Blakely issue. Court conclude, for reasons we now explain, that Court need not address defendants claim under section 170.6 because Judge Morgan did not actually resentence defendant. Court further conclude that any violation of defendants right to a jury was harmless beyond a reasonable doubt. Therefore, Court affirm.
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