P. v. Amaya
On January 27, 2005, the Santa Clara County District Attorney filed an information charging appellant with assault with a deadly weapon on a peace officer (Pen. Code, 245, subd. (c), count one), [1]battery on a peace officer ( 242-243, subd. (c)(2), count two), resisting or deterring an officer ( 69, counts three, four), resisting, delaying, or obstructing an officer, a misdemeanor ( 148, subd. (a)(l), count five), possession of burglar tools, a misdemeanor ( 466, count six), being under the influence of a controlled substance, a misdemeanor (Health & Saf. Code, 11550, subd. (a), count seven), and possession of a controlled substance, a misdemeanor (Health & Saf. Code, 11377, subd. (a), count eight). The information alleged that appellant personally used a dangerous and deadly weapon, a flashlight, in counts one and two.
On June 9, 2005, a jury found appellant guilty of the lesser offense of misdemeanor assault on a peace officer on count one, guilty as charged on counts two, four, five, seven, and eight. However, the jury found the personal weapon use allegation in count two not true. Further, the jury found appellant not guilty on counts three and six. On September 23, 2005, the trial court sentenced appellant to a total prison term of three years eight months.
On September 26, 2005, appellant filed a notice of appeal.
On appeal, appellant raises two issues. First, with respect to counts two and five he contends the record is devoid of substantial evidence that the officer was lawfully engaged in the performance of his duties at the time he detained him. Second, appellant challenges the imposition of an aggravated term relying on Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531]. Court affirm the judgment, but remand to the trial court for resentencing.
Comments on P. v. Amaya