P. v. Davis
Defendant was convicted following a jury trial of attempted murder (Pen. Code, 664/187, subd. (a)), assault with intent to commit forcible oral copulation (Pen. Code, 220, 288a, subd. (c)), attempted forcible oral copulation (Pen. Code, 664/288a), three counts of assault with a deadly weapon (Pen. Code, 245, subd. (a)), and false imprisonment (Pen. Code, 236), with associated enhancements for personal use of a deadly weapon (Pen. Code, 12022, subd. (b)(1)).[1]The trial court subsequently found that defendant suffered prior convictions (Pen. Code, 1170.12, subd. (c)(1), 667, subd. (a)), and served a prior prison term (Pen. Code, 667.5, subd. (b)). He was sentenced to an aggregate term of 27 years in state prison. Defendant argues in this appeal that evidence of two uncharged sexual assaults was erroneously admitted by the trial court, proffered defense impeachment evidence was improperly excluded, and a prior prison term enhancement should have been stricken rather than stayed. In a supplemental brief he adds the argument that the court violated his due process and jury trial rights under Blakely v. Washington (2004) 542 U.S. 296, and Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856, 127 S.Ct. 856](Cunningham), by imposing an upper term on count 1. Court conclude that the trial courts evidentiary rulings were not an abuse of discretion, and no prejudicial sentencing error occurred in the imposition of an upper term on count 1, but Court must strike the Penal Code section 667.5 prior prison term enhancement. The judgment is otherwise affirmed.
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