Barragan

After the United States Supreme Court pulled the plug on California’s determinate sentencing law to the extent it had allowed imposition of the upper term based upon certain aggravating facts found by the trial judge, not the jury (Cunningham v. California (2007) 549 U.S._ [ 166 L.Ed.2d 856 , 127 S.Ct. 856 ] (hereafter Cunningham)), trial courts have scrambled to determine how to apply that academic holding to the real world of criminal cases pending trial.

In this case, in which defendant Alejandro Quinones Barragan is accused of attempted murder and other crimes, the jury was empanelled and the People presented its first witness on January 23, 2007, before the prosecutor learned that the previous day the Supreme Court had issued its decision in Cunningham . The prosecutor immediately moved to amend the information to charge a number of aggravating facts. Defendant objected, asserting that “California statutes provide for no procedure allowing for the submission of such issues to the jury,” that the aggravating facts had not been “presented” at the preliminary hearing, and that he had not been given adequate notice of the “sentencing aggravators.”

Observing it was in…