P. v. Plascencia
A jury convicted defendant and appellant Armando Plascencia of one count of felony possession of methamphetamine (Health & Saf. Code, 11377, subd. (a), count 1) and one count of possession of a hypodermic needle and syringe (Bus. & Prof. Code, 4140, count 2). Furthermore, the trial court found that defendant was in violation of his probation. The court sentenced defendant to the upper term of three years in state prison on count 1 and to a concurrent term of six months on count 2. The court also sentenced defendant to three consecutive terms of eight months each on three matters involving the probation violations.
On appeal, defendant contends that: 1) the trial court abused its discretion in admitting evidence of his prior possession of methamphetamine under Evidence Code section 1101, subdivision (b); 2) there was insufficient evidence to prove that he had knowledge of the presence of the methamphetamine and syringes, or that he possessed them; and 3) the court erred in imposing the upper term and consecutive terms, pursuant to Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely). Defendant has submitted a petition for rehearing asserting that Cunningham v. California (2007) U.S.[127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), requires that a jury find aggravating factors true before a trial court may impose the upper term and consecutive terms. Court affirm.
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