P. v. Rushing
In a bifurcated trial, a jury found defendant Eugene Rushing guilty of one count of second degree robbery. (Penal Code, 211.) After a court trial on defendants priors, the trial court found all the allegations of defendants prior convictions true. On appeal, defendant claims that the trial court denied him his federal constitutional right to a jury trial and due process when it sentenced him to the upper term in violation of United States v. Booker (2005) 543 U.S. 220, Blakely v. Washington (2004) 542 U.S. 296, and Apprendi v. New Jersey(2000) 530 U.S. 466 (Apprendi). Defendant has submitted a supplemental brief asserting that Cunningham v. California (2007) 549 U.S., 2007 Lexis 1324, 75 U.S.L.W. 4078 (Cunningham) requires that a jury find aggravating factors before a trial court may impose the upper term. Court conclude that defendant waived this claim by failing to object at the time of sentencing. Even if his claim were preserved, Cunningham reaffirms that prior convictions can increase the existing penalty. Defendant also asserts that his attorney rendered ineffective assistance of counsel when he failed to challenge the sentence. As the record fails to detail the reasons why counsel acted as he did, we conclude that defendant did not meet his burden in proving defense counsel was ineffective. Finally, Court agree with the parties that the abstract of judgment fails to reflect the correct statute under which the five-year enhancement was imposed. Consequently, Court direct the trial court to prepare an amended abstract with the correct statutory citation.
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