Gunter

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 915 OPINION Steven Gunter appeals from the judgment entered after his conviction by a jury for second degree robbery with a special finding by the court in a bifurcated proceeding he had served one prior separate prison term for a felony. Gunter argues as a matter of law the evidence at trial was insufficient to establish he used force or fear to take property from the immediate presence of the victim, a mall security guard. He also contends the trial court's imposition of the five-year upper term sentence for robbery based on factual determinations made by the trial judge, not the jury, violated his federal constitutional right to a jury trial under Cunningham v. California (2007) 549 U.S. ___ [ 166 L.Ed.2d 856 , 127 S.Ct. 856 ] ( Cunningham ) and Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403 , 124 S.Ct. 2531 ] ( Blakely ). We affirm. FACTUAL AND PROCEDURAL BACKGROUND The circumstances of Gunter's…