P. v. Ervin
Gary Chester Ervin appeals from the judgment entered after a jury found him guilty of stalking; stalking in violation of a court order; assault upon a former spouse; two counts of first degree burglary; two counts of assault with force likely to produce great bodily injury; three counts of criminal threats; dissuading a witness; dissuading a witness by force or threat; five counts of disobeying a domestic violence protective order; vandalism; unlawfully carrying a loaded firearm; and resisting arrest. (Pen Code, 646.9, subds. (a) & (b); 240; 242; 243, subd. (e)(1); 459; 245, subd. (a)(1); 422; 136.1, subds. (a)(1) & (c)(1); 273.6, subd. (a); 594, subd. (b)(2)(A); 12031, subd. (a)(1); 148, subd. (a)(1).)[1] The trial court sentenced him to state prison for 16 years. He claims that the court erred by failing to conduct a Marsden inquiry (People v. Marsden (1970) 2 Cal.3d 118); that prosecution misconduct and a related instructional error compel the reversal of his conviction of unlawfully carrying a loaded firearm; and that the court imposed the upper term sentence for counts 4, 5 and 9 based upon factors not found by a jury, in violation of the Cunningham rule. (Cunningham v. California(Jan. 22, 2007, No. 05-6551) 549 U.S. [2007 WL 135687]; U.S. Const., 6th Amend.) Court affirm.
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