P. v. Beswetherick
This matter has been transferred here from the Supreme Court (S149804) with directions to vacate our previous decision (People v. Beswetherick (December 20, 2006) H029404 [nonpub. opn.]) and to reconsider the cause in light of People v. French (2008) 43 Cal.4th 36.[1] In our earlier opinion, we affirmed a judgment after the trial court denied appellant's motion to withdraw his plea and sentenced him in accordance with a negotiated disposition. We held, in part, that appellant's challenge to the trial court's authority to impose an upper term had been rejected in People v. Black (2005) 35 Cal.4th 1238. Subsequently, Black was abrogated by the United States Supreme Court in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856]. (French, supra, 43 Cal.3d 41.) Court hereby vacate our previous decision. Court address the challenge on the merits as well as reiterate the remaining part of our prior opinion.
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