P. v. Leon
The United States Supreme Court has vacated the judgment and remanded to this court for further consideration of appellants sentence in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham ). As the only issue on remand is whether appellants sentence violated his right to due process and a jury trial in violation of the United States Constitution, we restate our original opinion, except as necessary to reflect a modified procedural background and to reconsider the constitutionality of appellants sentence, in light of Cunningham. We also reconsider appellants sentence in light of the recent decisions of the California Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), and People v. Black (2007) 41 Cal.4th 799 (Black II). Appellant contends the trial court erred in imposing the upper term of imprisonment in reliance upon aggravating factors not found by a jury to be true beyond a reasonable doubt. We reject appellants contentions, because the trial court relied upon at least one factor that did not require a jury trial. Thus, Court affirm the judgment.
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