P. v. Hughes 6/21/07 CA1/3

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A104380A

Case Date: 09/12/2007

Preview:Filed 6/21/07 P. v. Hughes CA1/3 Opinion following remand from U.S. Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. RANDY LEE HUGHES, Defendant and Appellant. (Sonoma County Super. Ct. No. SCR31221) A104380

This case is one of several remanded to us by the United States Supreme Court due to their decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), which has significant effects on California's criminal sentencing scheme. As explained below, we vacate the sentence and remand to the trial court for resentencing. BACKGROUND On December 14, 2005, this court issued its opinion affirming the judgment in this case. On February 20, 2007, the United States Supreme Court granted certiorari in the matter, vacated the judgment, and remanded to this court for further consideration in light of its decision in Cunningham, supra, 127 S.Ct. 856. Pursuant to this mandate, we recalled the remittitur and invited both parties to file supplemental briefs. We have reexamined our opinion in this case (People v. Hughes (Dec. 14, 2005, A104380 [nonpub. opn.]), and incorporate it here by reference. Relying upon People v. Black (2005) 35 Cal.4th 1238, we initially rejected defendant's contention that imposition 1

of the upper term and consecutive sentences on the basis of facts found by the court deprived him of his right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296. We now reexamine that holding in light of Cunningham. The Trial Court's Sentencing Decision The trial court explained its sentencing decision as follows: "As to Count One, the Court imposes the aggravated term. The factors in aggravation being the fact that you displayed viciousness, cruelty or callousness; your violent conduct indicates that you're a serious danger to society. You have numerous prior convictions. You were on a grant of conditional sentence when the crimes were committed. Your performance on probation generally has been unsatisfactory. You--in regards to serious felony counts, in counts-- offenses, in Counts One, Two and Four, you bound, confined and gagged the victim within the meaning of Penal Code Section 1170.84. [

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