P. v. Ortiz
Appellant Lionel Ricky Ray Ortiz was found guilty after a jury trial of second degree robbery (Pen. Code, 211 & 212.5, subd. (c), count one), receiving a stolen check (Pen. Code, 496, subd. (a), count two), and second degree burglary (Pen. Code, 460, subd. (b), count three).[1] On June 8, 2006, the trial court sentenced appellant to the upper prison term of five years on count one. The court imposed the upper term of three years on count two but stayed sentence pursuant to section 654 and sentenced appellant to a concurrent midterm of two years on count three. Appellants total prison term is five years. The court imposed a restitution fine and granted appellant 133 days of custody credits.
On appeal, appellant contends, and respondent concedes, that appellants conviction for receiving stolen property on count two was based on the same facts as his robbery conviction on count one and his conviction on count two must be reversed. Appellant further contends the trial court violated his right to a jury trial when it relied on aggravating factors to impose the upper term sentence. (Cunningham v. California (2007)549 U.S. __ [127 S.Ct. 856] (Cunningham).) Court disagree and affirm.
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