Filed 12/7/05 P. v. Liddell CA2/8

Opinion following transfer

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Mark G. Nelson, Judge. Affirmed.

John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Marc J. Nolan and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.

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On September 7, 2005, our Supreme Court transferred this case to us, with directions to vacate our prior decision and reconsider in light of People v. Black (2005) 35 Cal.4th 1238 (Black). We hereby vacate our decision filed December 22, 2004, and issue the following decision:

Defendant and appellant David S. Liddell appeals from the judgment entered following a jury trial that resulted in his conviction of three counts of second degree robbery and one count of attempted second degree robbery. He contends: (1) his post-arrest statement to police was obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) the out-of-court identification process was unduly suggestive; (3) the fact of firearm use cannot be used both as an enhancement and to impose the upper term; and (4) the trial court abused its discretion in refusing to strike one of the alleged three strikes priors (Pen. Code, §§ 667, subds. (b) through (d), 1170.12, subds. (a) through (d)).^[1] In a supplemental brief, appellant contends that the trial court's selection of the upper term violated his Sixth Amendment right to a jury trial under Blakely v. Washington (2003) 532 U.S. 296 (Blakely). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established that Independent Community Resources (ICR) is located in San Dimas. At about 4:15 p.m., on February 6, 2003, ICR employees Angela Vilches and Lisa Escobedo were at Escobedo's desk when they were confronted by a mask-wearing, gun-wielding man who demanded their purses and instructed them to get on the ground. Both women got on the ground, and Vilches gave the man her purse, but Escobedo managed to hide hers under her desk. When ICR employee Gary Franck heard female screams, he walked down the hall and saw a man pointing a gun at Escobedo and Vilches. Franck complied when the man turned the gun on Franck, told him to get down on the ground, and said, â€