P. v. Soto
Appellant Nick Soto was convicted after jury trial of possessing a dirk or dagger (count 1), two counts of attempting by threat or violence to prevent a peace officer from performing his duty (counts 2 & 3), and two counts of misdemeanor resisting arrest (counts 4 & 5). Two prior prison term enhancements were found true. (Pen. Code, 12020, subd. (a); 69; 148; 667.5, subd. (b).) Appellant was sentenced to an aggregate term of six years and four months imprisonment, calculated as the upper term of three years for count 1, two consecutive eight-month terms for counts 2 and 3 and two consecutive one-year terms for the prison priors; two concurrent six-month terms were imposed for counts 4 and 5.
Appellant argues that the court prejudicially erred by failing to give a unanimity instruction for count 2. Also, he challenges the courts refusal to apply section 654 to the threat counts and to the resisting arrest counts. Finally, he contends that imposition of the upper term constitutes prejudicial Blakely/Cunningham error. Court agree with appellant that the one of the terms imposed for the resisting arrest counts must be stayed; the sentencing court determined that section 654 applied to these counts but failed to order one of the two terms stayed. Appellants other arguments are not convincing. Court order the judgment modified and, as modified, affirm.
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