P. v. Naya
Horacio Naya, also known as Jose Carlos and Samuel Chegue, appeals from the judgment entered upon his conviction by jury of one count of selling cocaine base (Health & Saf. Code, 11352, subd. (a)). The trial court found to be true the allegations that appellant had suffered a prior conviction of a narcotics-related offense within the meaning of Health and Safety Code, section 11370.2, subdivision (a) and had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).[1] It sentenced appellant to the upper term of five years for selling cocaine, plus three years for the prior drug-related offense and one additional year for each of the three prior prison terms. Appellant contends that the trial court erred (1) in denying his Pitchess[2]motion, (2) in instructing the jury in accordance with CALJIC No. 2.06, and (3) in ordering appellant to pay attorneys fees in the absence of evidence of his ability to pay, and (4) further contends that imposition of the upper-term sentence based upon facts found by the trial court violated his right to a jury trial of those facts, as set forth in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Appellant also requests us to review in camera proceedings to determine whether the trial court properly sustained police witnesses assertion of the official information privilege contained in Evidence Code section 1040.
By order dated August 6, 2007, Court authorized the parties to file supplemental briefs for further consideration of this matter in light of Cunningham and the California Supreme Courts decisions in People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). On August 15, 2007, appellant filed his supplemental brief, and, on October 2, 2007, respondent filed its responding brief. Having reconsidered the matter in light of the above-mentioned recent authorities, Court now reverse with directions.
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