P. v. Garcia
Appellant Arturo Garcia appealed from his conviction and sentence for second degree robbery and assault with a deadly weapon or by means of force likely to produce great bodily injury, contending that the trial court erred in imposing the upper term for the robbery and that the conviction for assault should have been vacated. We issued an opinion dated April 24, 2006 affirming the judgment. Another issue raised in the original appeal was whether the charge against appellant for assault with a deadly weapon was a lesser included offense or necessarily included offense of robbery, the other charge. In our original opinion, we concluded the answer was no based on clear Supreme Court precedent. Shortly after resubmission, the California Supreme Court issued its opinion in People v. Sloan (2007) 42 Cal.4th 110, reaffirming People v. Wolcott (1983) 34 Cal.3d 92, on which we had relied in our original opinion. After review of Cunningham, Nguyen, Black II, Sandoval, Sloan, and the parties supplemental briefs, Court conclude that the trial courts sentencing choices were in accord with Supreme Court precedent, and that remand to the trial court for reconsideration of the sentence is not required.
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