P. v. Buckley
Prior to trial, defendant admitted that he had suffered a prior conviction of spousal abuse within the meaning of Penal Code section 273.5, subdivision (e)[1]and that he had suffered a prior strike conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d). A jury thereafter found defendant guilty of corporal injury to a spouse. ( 273.5, subd. (a).) The jury also found true that defendant had personally inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (a). As a result, defendant was sentenced to a total term of 13 years in state prison as follows: the upper term of five years on the substantive count, doubled due to the prior strike, plus three years consecutive on the great bodily injury enhancement.
In his appeal, defendant contends (1) his counsel was ineffective for failing to object to the imposition of the upper term, and (2) he was deprived of his federal and state constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed the upper term. In his petition for writ of habeas corpus, defendant claims his counsel was ineffective for allegedly refusing to allow him to testify at his trial.
Court deny defendants writ of habeas corpus petition; however, Court agree, as Court must, that defendants upper term sentence runs afoul of Cunningham v. California (2007) U.S. [127 S.Ct. 856] (Cunningham).
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