P. v. Marin
Appellant Oscar Marin was convicted of petty theft with prior convictions. (Pen. Code, 666.) His sole claim on appeal is that the trial court violated his Sixth Amendment right to jury trial by sentencing him to the upper term for the offense, based on aggravating facts that were neither found by a jury nor admitted by appellant. He relies on Blakely v. Washington (2004) 542 U.S. 296, for that proposition. In our original opinion, we rejected his position, based on the decision of the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238 (Black I) that such upper term sentencing under the determinate sentencing law did not violate constitutional principles as declared in Blakely and other high court decisions.
The United States Supreme Court granted certiorari to review our decision and ultimately reversed the decision and remanded the case in light of its decision in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 871], rejecting the rationale of Black I. While on remand, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825, which bear on the issue. We invited the parties to submit letter briefs on the application of these 2007 decisions to the present case. They have done so, and we have considered their responses. Court conclude that the upper term sentencing in this case did not violate constitutional requirements.
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