P. v. Truong
Defendant appeals from a judgment of conviction and sentence. Truong was charged in an information with two counts of attempted robbery, possession of an illegal weapon (a billy club), petty theft with a prior theft conviction and receiving stolen property. The information also alleged that Truong had served a prior prison term. A jury found Truong guilty of possessing an illegal weapon, and the trial court found true the prison prior allegation.
Truong challenges his conviction for possession of an illegal weapon on two grounds. Truong first contends that there is not substantial evidence to support the verdict. He next contends that his conviction must be reversed because the trial court failed to properly instruct the jury on the definition of "possession."
Truong also challenges his sentence on two grounds. Truong contends that his sentence should be modified because the trial court improperly made dual use of the fact that Truong has served a prior prison term by using it both to impose a one year enhancement, as well as to impose the upper term. Finally, Truong contends that the trial court erred in imposing the upper term because in doing so, the court relied on facts that were not found by the jury, thereby violating Truong's Sixth Amendment right to a jury trial.
Court reject Truong's challenges to his conviction; the verdict is supported by substantial evidence, and the trial court properly instructed the jury. We also reject Truong's contention that the trial court used his prior prison term both to enhance his sentence and to impose an upper term, because the trial court relied on different, although related, factors to enhance the sentence and to impose the upper term. Finally, Court reject Truong's contention that the trial court erred in imposing the upper term based on aggravating facts that were neither found by the jury nor admitted by Truong, in violation of Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S.[27 S.Ct. 856] (Cunningham). Court therefore affirm the judgment of the trial court.
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