Fluker
People v. Fluker
Opinion
Opinion
Zelon, J.
[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.]
Charles Fluker appeals the sentence imposed by the trial court on his conviction for possession of cocaine in violation of Health and Safety Code section 11350 , subdivision (a). Because the imposition of the upper term sentence for that offense based entirely on facts neither admitted by Fluker nor found true by the jury beyond a reasonable doubt violated his Sixth Amendment right to a jury trial as set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435 , 120 S.Ct. 2348 ] ( Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403 , 124 S.Ct. 2531 ] ( Blakely ), and Cunningham v. California (2007) 549 U.S. [ 166 L.Ed.2d 856 , 127 S.Ct. 856 ] ( Cunningham ), we vacate the sentence and remand for resentencing.
The court responded, "How about the second and the third?" Fluker continued, referring to various motions, "I was denied 995. I have — was denied 1538.5 and Pitchess motion. I was denied that and I was denied my witnesses to come in here and dispute what the police are saying on that they are lying." The court…