P. v. Viera
Defendant Juan Viera pleaded guilty to felony stalking (Pen. Code, 646.9, subd. (b).).[1] The trial court placed him on probation. After two successive probation violations, the trial court revoked probation and sentenced defendant to the upper term of four years. Defendant argues that the imposition of the upper term violates Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) because the three aggravating factors were neither admitted by defendant nor submitted to a jury. We disagree because at least two of the aggravating factors are based on recidivism, and thus fall outside the rule of Cunningham, and those two factors are sufficient to justify the upper term.
Defendant also challenges the imposition of a second restitution fine under section 1202.4, and a $20 court security fee under section 1465.8. The People concede that the second restitution fine is improper. Court reject defendants challenge to the court security fee. Court modify the abstract of judgment to strike the second restitution fine, and otherwise affirm.
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