P. v. Hinton 6/19/07 CA1/3

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A114057

Case Date: 08/29/2007

Preview:Filed 6/19/07 P. v. Hinton CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. GINA HINTON, Defendant and Appellant. (San Mateo County Super. Ct. No. SC060066) A114057

Defendant Gina Hinton appeals from a judgment convicting her of several offenses including assault with a deadly weapon on a police officer and second degree robbery. She contends that the trial court erred in failing sua sponte to instruct the jury on the lesser included offense of assault on a police officer and that there is insufficient evidence to support her robbery conviction. She also argues that the trial court's imposition of an upper term sentence violated her constitutional right to a jury trial under (Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 546 U.S.___ [127 S.Ct. 856] (Cunningham).) We conclude that the trial court did not err in instructing the jury and that substantial evidence supports defendant's robbery conviction, but that the imposition of an upper term sentence violated defendant's constitutional right to a jury trial as construed in Blakely and Cunningham. Accordingly, we affirm the conviction and remand for resentencing.

1

FACTUAL AND PROCEDURAL HISTORY
On December 20, 2005, defendant was charged by information with second degree burglary (Pen. Code,1

Download P. v. Hinton 6/19/07 CA1/3.pdf