P. v. Bispo
In 2004, defendant entered negotiated pleas of no contest to three felonies, transporting methamphetamine (count III), transporting oxycodone and hydrocodone (count V), and possessing methamphetamine while armed with a firearm (count VI), and also entered negotiated pleas of no contest to four counts deemed to be misdemeanors (Pen. Code, S 17), possessing a billy club (count I), possessing methamphetamine (counts II and VIII), and unlawfully possessing a firearm (count X). In accordance with the plea agreement, imposition of sentences on the felonies was suspended and defendant was placed on probation under terms including that he serve 60 days in the county jail. Imposition of sentences on the misdemeanors also was suspended and defendant was placed on probation for those convictions.
In August 2005, the People moved for entry of judgment on the felony convictions because defendant was found in possession of methamphetamine, an unlawful substance smoking pipe, and ammunition that he could not lawfully possess, all in violation of the terms of his probation.
On appeal, defendant contends that imposition of the upper term for count V violated his rights to due process and to trial by jury on the factors used by the court to impose the upper term. (Citing Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely).) Court disagree and affirm the judgment.
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