P. v. Lyons
Pursuant to a negotiated settlement, defendant Paul Wayne Lyons pleaded no contest to one count of committing a lewd act on a child under the age of 14 years (Pen. Code, 288, subd. (a)) in exchange for the dismissal, with a Harveywaiver, of two counts of forcible lewd acts on a child under 14 ( 288, subd. (b)(1)), three counts of forcible oral copulation ( 269, subd. (a)(4)) and a promise of no more than eight years in state prison. At the sentencing hearing, the trial court stated it had read and considered statements of defendants other stepchildren regarding defendants having molested them, but even disregarding that information the court would impose the same sentence. The court then cited as aggravating factors that the victim was vulnerable, the crime was premeditated, and defendant had taken advantage of a position of trust; factors in mitigation were that defendant had no prior significant record and his prior performance on probation had been satisfactory. The court concluded the aggravating factors outweighed those in mitigation and sentenced defendant to the upper term of eight years.
On appeal, defendant challenges his sentence for various reasons, including a violation of the principles set forth in Apprendi, Blakely, and Cunningham. Because we conclude defendant is correct in his claim of Apprendi/Blakely error, Court remand the case to the trial court for resentencing.
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