P. v. Tucek
Appellant, challenges his conviction for assault with the infliction of great bodily injury on a person who was at least 70 years of age. (Pen. Code, 245, subd. (a)(1) and 12022.7, subd. (c).) Appellant contends the photo lineup procedure was impermissibly suggestive and thus he was denied due process by the admission of the victims extrajudicial and in court identifications. Appellant further argues that the sentencing court erred in imposing an upper term based on findings of aggravated facts not found true by the jurys verdict in violation of Blakely v. Washington (2004) 542 U.S. 296.
Contrary to appellants position, the dentification procedure was not unduly suggestive. However, appellant was improperly sentenced under Cunningham v. California (2007) ___U.S. ___ [127 S.Ct. 856]. Accordingly, the judgment of conviction affirmed and the judgment of sentence reversed.
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