P. v. Larson
A jury found defendant guilty of one count of making criminal threats (Pen. Code, 422)[1](count 1); one count of elder abuse ( 368, subd. (b)(1)) (count 2); two counts of assault with a deadly weapon ( 245, subd. (a)(1)) (counts 3 & 4); and five counts of making criminal threats to a witness ( 140, subd. (a)) (counts 5-9). The trial court subsequently found true that defendant had sustained three prior prison terms ( 667.5, subd. (b)). Defendant was sentenced to a total term of 14 years in state prison as follows: the upper term of four years on count 3, plus consecutive one-year terms on counts 2 and 4 through 9, and a consecutive one-year term for each of the three prison priors. The court stayed the two-year term on count 1. On appeal, defendant contends (1) he was deprived of his federal and state constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed the upper term on count 1; (2) all but one of the sentences imposed on counts 5 through 9 should have been stayed pursuant to section 654; and (3) the trial court erred in failing to instruct the jury with the offense of simple assault as a lesser included offense of assault with a deadly weapon. Court reject these contentions and affirm the judgment.
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