P. v. Moore
Andre Moore challenges the sentence imposed on him following his convictions for transportation, sale and possession of cocaine base (Health & Saf. Code, 11352, subd. (a), 11351.5) arising out of three separate transactions, his possession of a firearm during one of the transactions (Pen. Code, 12022, subd. (c)),[1]and his admission of (a) four prior prison terms ( 667.5, subd. (b), 668), (b) two prior strikes ( 667, subds. (b)-(i), 1170.12), and (c) the fact that he was on bail at the time of the offenses ( 12022.1, subd. (b)). After striking one of Moore's prior strikes, the trial court initially sentenced Moore to prison for 41 years four months, imposing the middle term on all of the counts. Approximately two weeks later, an error in the calculation of the sentence came to the attention of the trial court. The trial court recalled the sentence and resentenced Moore to prison for 30 years four months. Upon resentencing, the trial court imposed an upper term sentence with respect to the principal term (i.e., count 2, for violation of Health & Saf. Code, 11352, subd. (a)) and the accompanying firearm enhancement. As Court explain, Court conclude that Moore's final point has merit. Moore's Sixth Amendment right to a jury trial was violated when the trial court sentenced him to the upper term on the firearm enhancement based on facts not found by a jury beyond a reasonable doubt. Accordingly, Court vacate Moore's sentence and remand for resentencing.
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