P. v. Sieber
Defendant pleaded guilty to child endangerment (Pen. Code, 273a, subd. (a))[1]with a possible maximum term of six years in state prison. Following a sentencing hearing, defendant was sentenced to the upper term of six years in state prison. On appeal, defendant contends (1) she was deprived of her federal and state constitutional rights to a jury trial and due process under Cunningham v. California (2007) ___ U.S. ___, ___ [127 S .Ct. 856, 868] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed the upper term; and (2) the trial court engaged in an improper dual use of facts by imposing the upper term based on the victims vulnerability. Court agree, as we must, that defendants upper term sentence runs afoul of Cunningham; however, we find that the error was harmless beyond a reasonable doubt. In addition, Court reject defendants claim that the court engaged in an improper dual use of facts.
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