Sandoval

We granted review to determine whether defendant’s Sixth Amendment rights as defined in Cunningham v. California (2007) 549 U.S. 270 [ 166 L.Ed.2d 856 , 127 S.Ct. 856 ] (Cunningham) were violated by the imposition of an upper term sentence and, if so, the remedy to which she is entitled. In Cunningham , the United States Supreme Court disagreed with this court’s decision in People v. Black (2005) 35 Cal.4th 1238 [ 29 Cal.Rptr.3d 740 , 113 P.3d 534 ] (Black I) and held that California’s determinate sentencing law (DSL) violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than to the jury, the authority to find the facts that render a defendant eligible for an upper term sentence. We conclude that defendant’s Sixth Amendment right to a jury trial was violated and, although harmless error analysis applies to such violations, the error in the present case was not harmless beyond a reasonable doubt and the case must be remanded for resentencing. For the reasons explained below, we also conclude that upon remand, the trial court may exercise its…