P. v. Athey
Appellant, pled guilty on June 20, 2006 to second degree murder (Pen. Code, 187, subd. (a), count one) and felony unlawful taking of a vehicle (Veh. Code, 10851, subd. (a), count four). Allegations that appellant committed robbery ( 211, count two) and burglary ( 459, count three) were dismissed. Appellant also admitted a prior prison term enhancement (Pen. Code, 667.5, subd. (b)). On September 8, 2006, the trial court sentenced appellant to the upper term on count four of three years plus one year for the prior prison term enhancement. Appellants determinate sentence is four years plus an indeterminate sentence of 15 years to life on count one. Appellant was awarded custody credits and ordered to pay a restitution fine. Appellant filed a timely notice of appeal but did not obtain a certificate of probable cause. Appellant contends the trial court violated his right to a jury trial when it imposed the upper term on count four in violation of Blakely v. Washington (2004) 542 U. S. 296 (Blakely) and Cunningham v. California (2007) U. S.[127 S.Ct. 856] (Cunningham). Court affirm the trial courts sentence.
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