P. v. Willis
After a bifurcated jury trial, Rodney Wayne Willis was convicted of petty theft with a prior theft-related conviction.[1] (Pen. Code,[2] 484, subd. (a), 666.) Willis then admitted as true, allegations he had suffered three separate prior prison term convictions
( 667.5, subd. (b)) and two prior strike convictions ( 667, subds. (b)-(i), 1170.12). After striking one strike conviction, the court sentenced Willis to a total term of nine years, consisting of the upper three year term for the petty theft with a prior doubled under the Three Strikes law, plus three consecutive one year terms for the prior prison term enhancements.
Willis appeals, contending the trial court prejudicially erred by failing to instruct the jury on attempted theft and violated his constitutional rights by imposing an upper term sentence contrary to the holding in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). As to this latter issue, the parties have filed supplemental briefing on the recent United States Supreme Court decision in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham) that determined California's Determinate Sentencing Law (DSL), which permitted a court to impose an upper term sentence based on aggravating facts not found true by a jury or beyond a reasonable doubt, is unconstitutional and violates the holdings in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakely. Although we find no prejudicial error to reverse Willis's conviction, Court reverse his sentence and remand for resentencing in light of Cunningham.
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