P. v. Martinez
Defendant appeals from a judgment entered following a jury trial in which he was convicted in count 1 of driving under the influence of alcohol and in count 2 of driving while having a 0.08 percent or higher blood alcohol and his no contest plea in count 3 of driving when the privilege has been suspended for a prior conviction of driving under the influence of, a misdemeanor. Appellant was sentenced in count 1 to prison for the upper term of three years. In count 3, appellant was sentenced to an additional year consecutive to count 1, to be served in any penal institution. Imposition of sentence in count 2 was stayed pursuant to Penal Code section 654 and the special enhancements were dismissed pursuant to Penal Code section 1385. Appellant contends the imposition of an upper term sentence violated Blakely v. Washington and his Fifth, Sixth and Fourteenth Amendment rights to a jury trial and due process. Court affirmed the judgment.
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