P. v. Merriweather
Defendant Henry Frizzell Merriweather was charged with (1) possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1))[1](based on three prior convictions), (2) possession of an assault weapon ( 12280, subd. (b)), and (3) transporting a controlled substance (Health & Saf., 11352, subd. (a)), along with the special allegations of having suffered a single prior serious or violent conviction within the meaning of the three strikes law ( 667, subds. (b)-(i) and 1170.12, subds. (a)-(d)) and two prior prison terms within the meaning of section 667.5, subdivision (b). After waiving his constitutional trial rights, including the right to a jury trial, defendant withdrew his not guilty pleas and entered a no contest plea to the possession of a firearm by a felon. Under the terms of his plea agreement, the trial court imposed the upper term of three years in state prison. On appeal, defendant contends his guilty plea was invalid and his sentence must be vacated because he was not afforded the opportunity to waive a jury trial on sentencing factors pursuant to Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), which was decided 12 days after he entered his plea. Court dismiss the appeal because defendant negotiated a plea for the upper term, waived his right to a jury trial as part of that agreement, and failed to seek and obtain a certificate of probable cause.
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