P. v. Patterson
An information charged defendant with (1) kidnapping with intent to commit rape under Penal Code section 209, subdivision (b)(1) (count 1); (2) kidnapping under section 207, subdivision (a) (count 2); (3) assault with a firearm under section 245, subdivision (a)(2) (counts 3 and 4); (4) making criminal threats under section 422 (counts 5 and 6); (5) felony false imprisonment under sections 236 (count 7); and (6) possessing a firearm as a felon under section 12021, subdivision (a)(1) (count 8). The information specially alleged (1) personal use of a firearm in a specified felony under section 12022.53, subdivision (b) (counts 1 and 2); (2) personal use of a firearm under section 12022.5, subdivision (a) (counts 3-8); (3) a prior prison term under section 667.5, subdivision (b); and (4) a prior serious felony conviction under section 667, subdivision (a) and strike under section 667, subdivisions (b) through (i).
The trial court granted a defense motion of acquittal of counts 2 and 7. The jury found defendant guilty of count 8 and not guilty of counts 1 and 3 through 6. Defendant admitted the prior prison term and the prior serious felony conviction and strike.
The trial court sentenced defendant to state prison for six years, comprised of the upper three year term for count 8, doubled to six years by the strike. The trial court dismissed the remaining enhancements.
On appeal, defendant contends that the trial court erred in sentencing him to the upper term under Cunningham v. California (2007) U.S.[127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). For the reasons set forth below, Court affirm the judgment.
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