P. v. Hassan
Defendant was convicted following a jury trial of second degree robbery (Pen. Code, 211),[1] with an associated enhancement that he personally used a knife in the commission of the offense (12022, subd. (b)(1)). Defendant admitted allegations that he suffered a prior serious felony conviction ( 667, subd. (a)(1)) and served a prior prison term ( 667.5, subd. (b)). The trial court found that the alleged prior felony conviction was a strike ( 1170.12, subd. (c)(1), 667, subd. (e)(1)). Defendant was subsequently sentenced to an aggregate term of 16 years in state prison. In this appeal he claims that the evidence does not support the finding on the knife enhancement, and the court violated his due process and jury trial rights under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856, 127 S.Ct. 856](Cunningham), by imposing an upper term on count 1. Court conclude that the knife use enhancement must be reversed for lack of supporting evidence, but no prejudicial sentencing error occurred in the imposition of an upper term on count 1.
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