P. v. Smith
A jury convicted defendant of one count of the sale of cocaine base (Health & Saf. Code, 11352, subd. (a)) and one count of the sale of methamphetamine (Health & Saf. Code, 11379, subd. (a)). In a bifurcated court trial, the court found true allegations that defendant had four prior convictions under Penal Code section 667.5, subdivision (b). Defendant was sentenced to state prison for an aggravated term of five years on count 1 and the middle term of three years on count 2. The sentence on count 2 was to be served concurrently with the sentence on count 1. The court imposed a consecutive one-year term for each of the four prior convictions, resulting in an aggregate sentence of nine years.
Defendant makes the following contentions on appeal: (1) he was denied his right to a fair trial when a police officer testified before the jury that defendant was on parole; (2) the court erred by using defendants prior record to both aggravate the principle term and impose the four enhancement terms; (3) if defendant waived his claim of error as to the dual use of his prior convictions, then trial counsel rendered ineffective assistance; and (4) by relying upon defendants parole violations in imposing the aggravated term on count 1, the aggravated sentence violates the Sixth Amendment under Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).
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