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P. v. Reiff
A jury found James Bruce Reiff guilty, as charged, of five sexual offenses against his 15-year-old niece, S., and the court sentenced him to a 10-year prison term consisting of an eight-year upper term for rape of an intoxicated person (count one, Pen. Code, 261, subd. (a)(3), 264),[1]a consecutive two years as one-third the middle term ( 1170.7, subd. (a)) for penetration of an intoxicated person with a foreign object (count four; 289, subd. (e)), and stayed terms for counts of lewd or lascivious acts with a child age 14 or 15, statutory rape, and penetration of one under age 16 with a foreign object (counts two, three & five; 288, subd. (c)(1), 261.5, subd. (d), & 289, subd. (i)).
Reiff appeals claiming a need for sentence reduction or resentencing due to a violation of his federal jury trial rights under Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), in that the court, in choosing the upper term for count one, utilized aggravating factors not admitted or found true by a jury. Court reject his arguments and affirm.

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