In Re Gomez

This case presents the question whether Cunningham v. California (2007) 549 U.S. 270 [ 166 L.Ed.2d 856 , 127 S.Ct. 856 ] (Cunningham) applies on collateral review of a judgment that became final before Cunningham was decided but after Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403 , 124 S.Ct. 2531 ] (Blakely) was decided. We conclude that Cunningham does apply in these circumstances, and reverse the contrary decision of the Court of Appeal.

I.

Petitioner was convicted of rape and was sentenced to the upper term of eight years in state prison. (Pen. Code, § 261, subd. (a)(2).) At his sentencing hearing, the trial court cited the following as aggravating circumstances, in support of its decision to impose the upper term: the victim (petitioner’s daughter) was particularly vulnerable, the crime was vicious and callous, petitioner threatened witnesses, petitioner took advantage of a position of trust and confidence, petitioner engaged in a common scheme or plan to use his daughters for sexual purposes, and the victim was under the age of 18 years.

Petitioner’s sentencing hearing took place on July 29, 2004, five weeks after the United States Supreme Court…