P. v. Johnson
David M. Johnson appealed his conviction of kidnapping (Pen. Code, 207, subd. (a)[1]), willful infliction of corporal injury on a spouse with a prior conviction ( 273.5, subds. (a) & (e)(1)), assault with a deadly weapon ( 245, subd. (a)(1)), and making criminal threats ( 422).) With respect to the kidnapping and corporal injury on a spouse counts, the jury also found true allegations that defendant had inflicted great bodily injury ( 12022.7, subd. (a)). The court sentenced defendant on the kidnapping count to the upper term of eight years, and three years for the enhancement. It also imposed the upper term on the remaining counts, but stayed the terms pursuant to section 654.
Defendant contended his conviction for kidnapping must be reversed because the instructions on withdrawal of consent allowed the jury to convict him without finding the requisite intent. He also contended that in violation of Cunningham v. California (2007) U.S. [127 S.Ct. 856] (Cunningham), the court imposed the aggravated term on each count based upon aggravating factors that must, absent defendants waiver, be submitted to a jury. The judgment is affirmed.
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