P. v. Hinton
Defendant appeals from a judgment convicting her of several offenses including assault with a deadly weapon on a police officer and second degree robbery. She contends that the trial court erred in failing sua sponte to instruct the jury on the lesser included offense of assault on a police officer and that there is insufficient evidence to support her robbery conviction. She also argues that the trial courts imposition of an upper term sentence violated her constitutional right to a jury trial under (Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 546 U.S.[127 S.Ct. 856] (Cunningham).) Court conclude that the trial court did not err in instructing the jury and that substantial evidence supports defendants robbery conviction, but that the imposition of an upper term sentence violated defendants constitutional right to a jury trial as construed in Blakely and Cunningham. Accordingly, Court affirm the conviction and remand for resentencing.
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