P. v. Miller
On appeal defendant challenges only the imposition of the upper term on the robbery count. Court affirm the judgment because: (1) Application of the version of Penal Code section 1170 in effect at the time of sentencing, but not when the crimes were committed, is not a violation of the prohibition of ex post facto laws; and (2) Even if application of section 1170 implicated the prohibition against ex post facto laws, no prejudice has been shown because the trial court would be authorized to impose the upper term based upon the judicially revised sentencing scheme formulated in Peoplev.Sandoval (2007) 41Cal.4th 825 (Sandoval), and the court gave no indication whatsoever on the record it would impose any sentence less than the upper term.
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