P. v. Trujillo
A jury convicted Pedro Trujillo of possession of a weapon by a prisoner in violation of Penal Code section 4502, subdivision (a),[1]and possession of drug paraphernalia by a prisoner in violation of section 4573.8. Defendant admitted five prior prison term allegations within the meaning of section 667.5, subdivision (b).
Defendant was given a four year upper term sentence on count 1, the violation of section 4502, subdivision (a). On appeal, he contends this upper term sentence violated Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), because the trial court, in reaching its upper term sentencing decision, made factual findings that aggravating factors existed and then weighed them against a mitigating factor. Defendant was given a consecutive term (one third the middle term) of eight months for count 2, and one year for each of the five prior prison term enhancements, for a total sentence of nine years eight months.
The matter is remanded to the trial court for resentencing consistent with the views expressed in this opinion. In all other respects, the judgment is affirmed.
Comments on P. v. Trujillo