P. v. Petkus
Defendant, Victor Adam Petkus, appeals his sentence, claiming the court erred when it imposed the upper term on the principal count without submitting the aggravating facts to a jury under Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham). Despite defense counsels argument at sentencing that the aggravating factors must be submitted to a jury, we find that under the terms of his written plea agreement, defendant waived his right to raise a Cunningham claim on appeal and even if he had not, his appeal fails pursuant to the recent California Supreme Court decision in People v. Black (2007) 41 Cal.4th 799 (Black II).
Defendant pled no contest to violation of Health and Safety Code section 11358 (cultivating marijuana), and admitted one prior prison term pursuant to Penal Code section 667.5, subdivision (b). In exchange for defendants plea, the prosecutor dismissed a strike and agreed to a maximum sentence of four years in state prison.
The judgment and sentence are affirmed.
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