P. v. Duarte
A jury found appellant, guilty of burglary of an inhabited dwelling (count 1/Pen. Code, 460, subd. (a)), possession of methamphetamine (count 2/Health & Saf. Code, 11377, subd. (a)), receiving stolen property (count 3/Pen. Code, 496, subd. (a)), and misdemeanor possession of drug paraphernalia (count 4/Health & Saf. Code, 11354). In a separate proceeding the court found true a prior prison term enhancement (Pen. Code, 667.5, subd. (b)).
On June 27, 2005, the trial court sentenced Duarte to an aggregate seven-year term as follows: the upper term of six years on count 1, a one-year prior prison term enhancement, a concurrent term on count 2, and stayed terms on counts 3 and 4. On that same date Duarte filed a timely appeal.
On December 22, 2005, Duarte filed his opening brief citing Blakely v. Washington (2004) 542 U. S. 296 (Blakely) to argue that the imposition of the aggravated term based on facts not found true by a jury beyond a reasonable doubt violated his Sixth Amendment right to a jury trial.
On July 25, 2006, we relied on People v. Black (2005) 35 Cal.4th 1238 to reject this contention.
On August 30, 2006, Duarte petitioned for review in the California Supreme Court. Following the denial of this petition, on October 17, 2006, Duarte petitioned for a writ of certiorari in the United States Supreme Court.
On January 22, 2007, the United States Supreme Court issued its opinion in Cunningham v. California (2007) __ U. S. ____ [127 S.Ct. 856] (Cunningham), holding that Blakely applies under California law.
On February 20, 2007, the United States Supreme Court granted Duartes petition for writ of certiorari, vacating the judgment in this matter and remanding it back to this court for further consideration in light of Cunningham.
On April 19, 2007, Duarte filed a supplemental brief again arguing that under Cunningham the imposition of the aggravated term based on facts not found true by a jury violated his right to a jury trial under the Sixth and Fourteenth Amendments. Court reject this contention and affirm.
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