P. v. Wilbur
John Wilbur appeals his convictions by a jury for transportation of methamphetamine, possession of 28.5 grams or more of methamphetamine for sale, possession of a firearm by a felon, and possession of ammunition by a felon. Wilbur argues that (1) the court erred when it denied his motion for judgment of acquittal on the firearm and ammunition counts, (2) his counsel was ineffective, (3) his sentence to concurrent terms violated Penal Code section 654,[1]and (4) imposition of the upper term sentence for possession of methamphetamine violated his rights secured by the Sixth and Fourteenth Amendments because the sentence was based on factors not found by the jury.
In April 2007, we remanded this case for resentencing in accordance with the principles announced in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We otherwise affirmed the judgment. Thereafter, the California Supreme Court granted review and deferred further action pending further order of the court. In September 2007, the matter was transferred to this court with directions to vacate its decision and reconsider the cause in light of People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. Having so reconsidered the matter, we conclude the error in the imposition of the upper term cannot be considered harmless. Court again remand for resentencing in accordance with Cunningham and otherwise affirm the judgment.
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