P. v. Wandick
Michael Wandick appeals from the judgment entered following his conviction by a jury on one count of assault with a firearm (Pen. Code, 245, subd. (a)(2))[1](count 1), one count of making a criminal threat ( 422) (count 2), and one count of possession of a firearm by a felon ( 12021, subd. (a)(1)) (count 3), with special findings by the jury he had personally used a firearm in the commission of the offenses charged in counts one and two ( 12022.5). The trial court sentenced Wandick to an aggregate state prison term of eight years: On count 1 the court imposed an upper term of four years plus the middle term of four years for the firearm-use enhancement. On count 2 the court imposed the middle term of two years plus the middle term of four years for the firearm-use enhancement to run concurrently with the sentence on count 1. On count 3 the court imposed and stayed pursuant to section 654 the middle term of two years.
In sum, Wandicks criminal history, properly identified by the trial court as an aggravating factor, rendered him eligible for the upper term sentence imposed. Wandicks federal constitutional right to a jury trial was not violated by the trial courts sentencing decision. The judgment is affirmed.
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