P. v. McMahon
Defendant appeals his conviction by jury verdict of one count of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and one count of possession of a hypodermic needle and syringe. (Bus. & Prof. Code, 4140.) In a bifurcated proceeding, the court found true the allegation that he had served three prior prison terms. (Pen. Code, 667.5, subd. (b).) Appellant contends his attorneys failure to move to suppress the contraband constituted ineffective assistance of counsel. He also asserts three sentencing errors: (1) improper dual use of facts; (2) failure to consider his drug addiction as a factor in mitigation; and (3) imposition of an upper term contrary to Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
The judgment is reversed and remanded with directions to resentence appellant pursuant to the holding of Cunningham v. California, supra, 127 S. Ct. 856. In all other respects the judgment is affirmed.
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