P. v. Liddell
In our original opinion in this case, filed on December 22, 2004, we reversed defendants sentence and remanded for resentencing in compliance with Blakely v. Washington (2003) 532 U.S. 296 (Blakely). On September 7, 2005, the California Supreme Court transferred the case to us, with directions to vacate our prior decision and reconsider in light of People v. Black (2005) 35 Cal.4th 1238 (Black I). We filed a new opinion on December 7, 2005, affirming the sentence. Then, the United States Supreme Court overruled Black I, granted certiorari in this case, and vacated the judgment for further consideration in light of Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856 (Cunningham). Defendant and appellant David S. Liddell appeals from the judgment entered following a jury trial that resulted in his conviction of three counts of second-degree robbery and one count of attempted second-degree robbery. He contends: (1) his post-arrest statement to police was obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) the out-of-court identification process was unduly suggestive; (3) the fact of firearm use cannot be used both as an enhancement and to impose the upper term; (4) the trial court abused its discretion in refusing to strike one of the alleged three strikes priors (Pen. Code, 667, subds. (b)-(d), 1170.12, subds. (a)-(d));and (5) the trial courts selection of the upper term violated his Sixth Amendment right to a jury trial under Blakely. Court affirm.
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