There are several points of interest, both factual and legal, before the court gets to the main event. We learn that this was not Ms. Ayala's only fraud, and big corporations are not her only target. She also scammed a woman out of $11,000, her entire albeit modest savings, selling her a mobile home that belonged to someone else.

There is a long discussion of the order of restitution to the employees of the particular Wendy's restaurant who were laid off as the indirect but obviously foreseeable result of Ayala's revolting scheme. The court holds that they are entitled to restitution. Good luck collecting.

The defendant got a 4-year property damage enhancement for the huge financial loss to Wendy's. She admitted the truth of this allegation as part of the plea and didn't get a certificate of probable cause, so she can't appeal it. However, this fact cannot be used to choose the upper term from among the three terms for the underlying crime, as it has already been considered in imposing the enhancement.

On the Cunningham challenge to the upper term, the court decides the claim is not forfeited despite the lack of an objection in the trial court, as such an objection would have been futile at the time. The judge imposed the upper term of five years (the middle term is three) because of the defendant's high degree of callousness and planning and sophistication. These facts were neither found by a jury nor admitted, and hence there is Apprendi/Blakely/Cunningham error. The court further finds the error not harmless under the Chapman "beyond a reasonable doubt" standard.

The news reports indicate that Ayala will probably get the middle term on resentencing. I wouldn't be so sure. The California Supreme Court Bookerized the determinate sentencing law in Sandoval, holding "upon remand, the trial court may exercise its discretion to impose any of the three terms available for defendant’s offense." The judge can and should go for the max again on resentencing.