P. v. Falcon
Richard Cruz Falcon appeals the judgment entered after conviction by jury of possession of methamphetamine, possession of a smoking device, a misdemeanor, and being under the influence of a controlled substance, also a misdemeanor. (Health & Saf. Code, 11377, subd. (a), 11364, subd. (a), 11550, subd. (a).) Falcon admitted a prior conviction within the meaning of the Three Strikes law (Pen. Code, 667, subs. (b)-(i), 1170.12) and admitted a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). The trial court sentenced Falcon to the upper term of three years for possession of methamphetamine, doubled to six years on account of the prior strike conviction, and struck the one year enhancement for the prior prison term. In our original opinion, filed October 26, 2006, we affirmed Falcons conviction and rejected his claim that imposition of the upper term based on factors not found true by a jury violated Falcons right to jury trial articulated in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]. On July 11, 2007 the United States Supreme Court, after granting Falcons petition for writ of certiorari, vacated the judgment and remanded the matter to us for further consideration in light of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 166 L.Ed.2d 856]. Court granted the parties an opportunity to submit supplemental briefing on the effect, if any, of Cunningham on Falcons appeal. Court again conclude imposition of the upper term did not violate Falcons Sixth Amendment right to a jury trial and affirm the judgment.
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