P. v. Leaf
A jury found Steven Leaf, defendant and appellant (hereafter defendant), guilty of evading a peace officer, in violation of Vehicle Code section 2800.2 (count 3), second degree burglary, in violation of Penal Code section 459 (count 4), assault with a deadly weapon or by means of force likely to produce great bodily injury, in violation of Penal Code section 245, subdivision (a)(1) (counts 5 and 6), and possession of burglary tools, in violation of Penal Code section 466 (count 7). After he waived his right to a jury, defendant admitted that he had previously been convicted of three felonies for which he served separate terms in prison within the meaning of section 667.5, subdivision (b), and that he previously had been convicted of a serious or violent felony within the meaning of section 667, subdivisions (c) and (e) and section 1170.12, subdivision (c). Based on the jurys guilty verdicts and defendants admissions, the trial court sentenced defendant to serve a total term of 15 years eight months in state prison, a sentence that includes the upper term of four years on count 5.
In this appeal, defendant first contends that there was evidence presented at trial to show that he committed more than one act of possessing burglary tools, and therefore the trial court had a sua sponte duty to instruct the jury that, in order to find defendant guilty of that misdemeanor, the jury had to unanimously agree on the specific act of possession. Next, defendant contends that Court must reverse his admissions of the prior conviction allegations because the trial court did not fully advise defendant of the constitutional rights he would be waiving by his admissions, and therefore those admissions were not knowing and voluntary. Defendants third contention is that the trial court erred by having defendant admit the prior conviction allegations set out in the original information because that information was superseded by an amended information that alleged a different date for one of the prior convictions. Defendant also contends that the trial court violated his Sixth Amendment right to a jury by imposing the upper term sentence on count 5. Finally, defendant contends that the trial court violated the prohibition set out in section 654 against multiple punishment for a single criminal act by punishing defendant on count 3 for evading a peace officer and also on count 5 and count 6 for the assaults with a deadly weapon that occurred when defendant crashed into another vehicle in the course of evading the peace officer.
Court agree as Court must that defendants upper term sentence runs afoul of Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856]. Defendants other contentions lack merit. Accordingly, Court vacate defendants sentence and remand the matter to the trial court for further proceedings consistent with Cunningham v. California. The judgment is otherwise affirmed.
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