P. v. Ortiz
A jury found Jesus Ortiz guilty of first degree robbery, assault with a deadly weapon, criminal threats, unlawfully taking/driving a vehicle, and evading the police with reckless driving. The jury also found true an enhancement allegation that Ortiz personally used a deadly and dangerous weapon in committing the criminal threats offense. Ortiz waived a jury trial on the alleged priors, and the court found that Ortiz had previously suffered two prison priors (Pen. Code,[1] 1203, subd. (e)(4) & 667.5, subd. (b)), and a serious felony prior, which qualified as a strike prior ( 667, subd. (a)(1), 668, 1192.7, subd. (c)). The court imposed a sentence of 18 years and 4 months, which included a six-year upper term for the robbery conviction (doubled because of the strike).
On appeal, Ortiz contends his conviction for evading the police with reckless driving should be reversed because the trial court's modification of the necessity instruction amounted to a directed verdict and deprived him of his constitutional right to present an affirmative defense. Court conclude the evidence did not support a necessity defense, and therefore there was no prejudicial error in modifying the necessity instruction. Ortiz also challenges his sentence on the robbery conviction because he was sentenced to the upper term without a jury trial and without a finding of proof beyond a reasonable doubt on the aggravating factors. Court conclude the sentence must be reversed because of Blakely/Cunningham[2]error. Court remand for resentencing.
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