P. v. Silla
In 2001, appellant pled no contest to one count of rape by threat, pursuant to a plea bargain. He was placed on five years of probation, with numerous conditions. In 2006, just before the five year period ended, probation was revoked. He was then sentenced to prison for the upper term of eight years. On appeal, his sole contention is that under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), imposition of the upper term violated his rights to jury trial and due process, safeguarded by the Sixth and Fourteenth Amendments of the United States Constitution. After reviewing the record, court requested supplemental briefing on these issues:
(1) Did appellants guilty plea include a plea to the upper term?
(2) Did the trial court violate appellants Sixth Amendment right to a jury trial, as interpreted in Cunninghamv.California (2007) 549 U.S.[127 S.Ct. 856], by imposing an upper term sentence based on aggravating factors that were not found true by a jury? If so, what is the proper remedy?
After considering the supplemental briefing, court have concluded that this case must be remanded for resentencing under Blakely, supra, 542 U.S. 296 and Cunningham v. California, supra, 127 S.Ct. 856 (Cunningham).
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