P. v. Cheatum
Defendant was charged in a consolidated fourth amended information with having committed seven offenses in 2003 and 2004. In counts 1, 2, and 3, defendant was charged with possessing a controlled substance (Health & Saf. Code, 11377, subd. (a); count 1), carrying a dirk or dagger (Pen. Code, 12020, subd. (a)(4);count 2), and false personation (Pen. Code, 529; count 3) on September 28, 2003.
In count 5, defendant was charged with the second degree robbery of Stanley Crabaugh, a pizza delivery man, on December 8, 2003. ( 211; count 5.) It was further alleged that defendant personally used a firearm in the commission of the robbery. ( 12022.5, subd. (a), 12022.53, subd. (b).) In counts 4 and 6, defendant was charged with assaulting Debra Calvelli (Debra) with a deadly weapon, a knife ( 245, subd. (a)(1); count 4), and making criminal threats on Debra ( 422; count 6) on December 10, 2003.
In count 7, defendant was charged with attempting to dissuade a witness, Debra, from testifying against him while he was in jail in January 2004, awaiting his preliminary hearing on counts 4 and 6. ( 136.1, subd. (a)(2); count 7). Finally, it was alleged that defendant had one prior serious felony conviction ( 667, subd. (a)), which also constituted a prior strike conviction ( 667, subds. (b)(i), 1170.12, subds. (a)-(d)). Defendant admitted the truth of the prior conviction allegation.
A jury found defendant guilty as charged in counts 1 through 7, and found true the personal use allegation in count 5. Defendants motion to release juror information for purposes of bringing a motion for a new trial, and defendants motion for a new trial, were denied. Defendant was sentenced to a total term of 27 years 4 months in prison, and appeals.
Defendant contends the trial court: (1) erroneously granted the Peoples motion to consolidate counts 1 through 7, which were originally filed in three separate actions, for trial; (2) erroneously refused to allow him to question a witness regarding a rifle found near the scene of the robbery on December 9, 2003, the day after the robbery; and (3) erroneously refused to instruct the jury on lesser related offenses in counts 3 and 4.
Defendant further contends that: (4) insufficient evidence supports his conviction in count 3 for false personation; (5) the trial court erroneously overruled his objection to the admission of tape recordings of his telephone conversations on grounds they were not properly authenticated; and (6) the trial court erroneously denied his petition to release juror identifying information for purposes of a motion for a new trial.
Finally, defendant contends (7) the trial courts imposition of the upper term on count 5 and consecutive terms on counts 1 through 5 and 7 violated his federal constitutional right to a jury trial. Court conclude that the matter must be remanded for resentencing. In all other respects, Court affirm the judgment.
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