P. v. Lee
Appellant Michael Bernard Lee was convicted of assault with a deadly weapon and related charges. He was sentenced to 20 years in state prison. On appeal, he raises these sentencing issues: (1) The same prior conviction cannot be used both for a prior prison enhancement under Penal Code section 667.5, subdivision (b) ( 667.5(b)) and a prior serious felony enhancement under Penal Code section 667, subdivision (a)(1) ( 667(a)(1)). (2) Imposition of the upper term violated his federal constitutional rights to a jury trial and to due process of law (U.S. Const., 6th & 14th Amends.), under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856](Cunningham). (3) When the trial court imposed the upper term on the ground that appellants record justifie[d] the high term, it improperly used appellants four prior convictions both for separate sentence enhancements and for imposition of the upper term.
Respondent concedes the first sentencing issue, which requires a sentencing modification. Court reject the other issues, and otherwise affirm.
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