P. v. Payton
Defendant was convicted of robbery (Pen. Code, 211), and the jury found he personally used a firearm in the commission of the offense. (Pen. Code, 12022.53, subd. (b).) On appeal, he contended that imposition of the upper term for the robbery violated the holding in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely) and that, in any event, the factor upon which the trial court relied was insufficient to support the upper term.
On January 18, 2006, we affirmed the judgment. After the United States Supreme Court issued its decision in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (hereafter Cunningham), we granted defendants motion to recall the remittitur and to file a supplemental brief addressing Cunningham issues only. Court again affirm the judgment.
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