Earley

1. Introduction

A jury convicted defendant of possession of marijuana for sale and misdemeanor vandalism. The court found true beyond a reasonable doubt that defendant had a prior serious and violent felony conviction that qualified as a strike and that he had served five prior prison terms. The court denied defendant’s motion to dismiss the strike and sentenced defendant to 10 years in prison. The court also charged defendant with five counts of contempt, for which the court summarily convicted him and sentenced him to 5 six-month consecutive jail terms to be served concurrently with the 10-year prison sentence.

Defendant appeals, arguing he was denied his constitutional right to testify; challenging the admission of evidence of a prior uncharged marijuana offense; charging the prosecutor committed misconduct; and attacking the contempt convictions. We reject the first three contentions but we agree the contempt convictions were invalid. We also reject defendant’s supplemental argument, relying on Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403 , 124 S.Ct. 2531 ], that the court could not impose the three-year upper term on defendant’s conviction of…