P. v. Linton
A jury found defendant guilty of making criminal threats (Pen. Code, 422)(count 1) with the use of a knife ( 12022, subd. (b)(1)); brandishing a deadly weapon ( 417, subd. (a)(1)) (count 2); and battery ( 242) (count 3). As a result, defendant was sentenced to a total term of four years in state prison: the upper term of three years on count 1, plus an additional one year for the knife use enhancement; counts 2 and 3 were ordered time served in county jail. On appeal, defendant contends (1) there was insufficient evidence to support the jurys verdict on count 1; (2) the prosecutor committed misconduct during opening argument and rebuttal; and (3) defendant was deprived of his federal and state constitutional rights to a jury trial and due process under Cunningham v. California (2007) U.S., [127 S.Ct. 856, 868] (Cunningham), 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 on count 1. Court disagree and affirm the judgment.
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