P. v. Fernandez
Defendant Mario Fernandez appeals from judgment entered following jury convictions for simple assault (Pen. Code, 240),[1]a lesser included offense of assault with a deadly weapon ( 245, subd. (a); count 1); and for five counts of assault by force likely to produce great bodily injury ( 245, subd. (a); counts 2 through 6). The jury found defendant not guilty of actively participating in a criminal street gang ( 186.22, subd. (a); count 7), and rejected gang enhancements as to each count ( 186.22, subd. (b)). The trial court sentenced defendant to the upper term on counts 2 through 6, with count 2 serving as the principal term and the sentences on counts 3 through 6 imposed concurrently. A 180-day concurrent term was also ordered for the misdemeanor conviction in count 1. Defendant contends there was insufficient evidence to support his convictions for counts 1 through 4, which were premised on the theory of aiding and abetting. Defendant also challenges his upper term sentences on counts 2 through 6 based on Cunningham v. California (2007) 549 U.S., 127 S.Ct. 856 (Cunningham). Court reject defendants challenges and affirm the judgment.
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