P. v. McLellan
Defendant Eric Paul McLellan appeals from a judgment entered after a jury found him guilty of felony possession of heroin. The trial court found true the allegations in the information that defendant had two serious and violent prior felony convictions within the meaning of Penal Code section 667, subdivisions (d) and (e)(2)(A) and section 1170.12, subdivisions (b) and (c)(2)(A). (All further statutory references are to the Penal Code unless otherwise specified.) After striking one of the prior conviction allegations, the trial court sentenced defendant to a total prison term of 10 years. Court affirm and remand for resentencing.
Court reject each of defendants contentions of reversible error during trial and hold: (1) the trial court did not violate defendants federal or state constitutional rights by excluding a witnesss hearsay statement to police because the statement did not fall within a hearsay exception; (2) defendants constitutional right against self incrimination was not violated by the prosecutors closing argument; and (3) the prosecutors closing argument did not contain factual statements she knew to be false.
Court also reject two of defendants contentions with regard to sentencing, concluding (1) the trial court did not abuse its discretion by refusing to dismiss both prior conviction allegations, and (2) the trial courts imposition of prior prison term enhancements did not violate the double jeopardy clause of the federal or state Constitution, or the provisions of section 654 or 1023.
In light of the United States Supreme Courts recent decision in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), we remand for resentencing on the sole ground the trial court imposed an upper term sentence based on aggravating circumstances found true by the court rather than by a jury beyond a reasonable doubt.
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