P. v. Medina
Antonio Medina, Jr., pleaded guilty to two counts of sale of methamphetamine and one count of possession for sale. (Health & Saf. Code, 11378, 11379, subd. (a).) He further admitted an allegation in connection with the possession for sale count that he was personally armed with a firearm. (Pen. Code, 12022, subd. (c).) In a separate case, he pleaded guilty to possession of stolen property. Under the terms of the negotiated disposition, the remaining counts were dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754). The plea was open to the court with respect to sentencing, except for the condition that the sentence in the second case be concurrent with the sentence imposed in the first.
On appeal defendant contends (1) the court, in violation of his Sixth Amendment rights as defined in Cunningham v. California (2007) 549 U.S __ [127 S.Ct. 856] (Cunningham), imposed the upper term based upon facts neither found by a jury nor admitted by defendant; (2) the court violated the proscription against dual use of fact by relying on the fact that he had a loaded firearm in selecting the upper term because this same fact underlay the personal arming enhancement; and (3) the court failed to state separate reasons for imposing the upper range of five years for the personal arming enhancement.
Court affirm the judgment.
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