P. v. Costa
Defendant appeals from a judgment entered following his entry of pleas of nolo contendere and his admission of enhancement allegations. In consolidated proceedings, defendant pleaded no contest to 17 counts, namely, 12 counts of possession of a firearm by a felon (Pen. Code, S 12020, subd. (a)(1)), two counts of possession of ammunition by a felon (S 12316, subd. (b)), one count of perjury (S 118, subd. (a)), one count of conspiracy (SS 182, subd. (a)(1), 12021, subd. (a)), and one count of misdemeanor possession of marijuana (Health and Saf. Code, S 11357, subd. (c)). The court sentenced defendant to 22 years, eight months in prison; the sentence included an upper term sentence on the perjury conviction.
Defendant presents two challenges on appeal. First, he claims that the court erred in imposing an upper term sentence for the perjury conviction (in superior court case number 210852) in violation of his Sixth Amendment right to a jury trial and his Fourteenth Amendment right to due process. He claims that under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), he was entitled to have a jury determine beyond a reasonable doubt any aggravating facts that were used as prerequisites to the imposition of an upper term sentence. Second, he contends that the sentence for the ammunition-possession conviction (count 6 in superior court case number CC238138) should have been stayed pursuant to section 654.
Court conclude, based upon a very recent controlling decision of United States Supreme Court (see Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham)), that there was Blakely error. Court hold further that the sentence for the ammunition possession conviction did not violate section 654. Court therefore reverse the judgment and remand for resentencing in light of the holding in Cunningham.
Comments on P. v. Costa