P. v. Ramirez
John R. Ramirez (Ramirez) appeals the judgment entered following a jury trial which resulted in his conviction of second degree robbery (Pen. Code, 211),[1]during which he personally used a firearm ( 12022.53, subd. (b)), and attempted second degree robbery ( 664/211), during which he was armed with a firearm ( 12022, subd. (a)(1)). The trial court sentenced Ramirez to a term of 15 years, eight months in prison. Ramirez contends the trial court violated the mandate of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham) and his Sixth Amendment right to a jury trial by imposing the upper term of five years in prison for his conviction of second degree robbery based on aggravating factors not found by a jury beyond a reasonable doubt. We conclude, although the trial court failed to comply with the rule set forth in Cunningham, the error was harmless beyond a reasonable doubt. Accordingly, Court affirm the judgment.
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