P. v. Nychay
Phillip Nychay entered guilty pleas to transporting and sale of a controlled substance (Health & Saf. Code, 11379, subd. (a)) and possessing a controlled substance for sale ( 11378, subd. (a)). He admitted having suffered three prior convictions for possessing a controlled substance for sale ( 11370.2, subd. (c)) and having served a prior prison term (Pen. Code, 667.5, subd. (b), 668). At the time of the guilty plea, Nychay signed a form that included the following language which the parties characterize as a Blakely waiver: "Except where a prison term has been set by stipulation of the parties, I agree that the sentencing judge may determine the existence or non-existence of any aggravating facts which may be used to increase my sentence on any count or allegation above the middle term, either at the initial sentencing or at any future sentencing in the event my probation is revoked."[2] (See Blakely v. Washington (2004) 542 U.S. 296 (Blakely); Cunningham v. California (2007) 549 U.S., [166 L.Ed.2d 856] (Cunningham).)
The court sentenced Nychay to seven years in prison: the four-year upper term for transporting and sale of a controlled substance, enhanced three years for a prior conviction for possessing a controlled substance for sale. The court imposed a concurrent term on the current conviction for possessing a controlled substance for sale, and struck the two remaining enhancements for prior convictions of possessing a controlled substance for sale and for having served a prior prison term. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)Affirmed.
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