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Name: People v. Fernandez
Case #: E034306
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 10/19/2004
Subsequent History: Rev. granted 1/26/05: S129338

The record contained sufficient evidence to support a finding that victims of burglary and grand theft had suffered a loss within the meaning of Penal Code section 12022.6, subdivision (a)(2), even though the defendants only succeeded in moving the property in question to the receiving dock of the burglarized premises. The “loss” referenced in section 12022.6 is satisfied by any dispossession which constitutes theft of the property. Further, the appellate court rejected the argument that by imposing a longer sentence than that contemplated in a proposed plea bargain, the court improperly punished the defendants for going to trial. The court noted that United States v. Stockwell (9th Cir. 1973) 472 F.2d 1186 was not binding on California courts, and held that the record fully supported the sentences imposed. Finally, the court found that the trial court did not commit error under Blakely v. Washington (2004) 159 L.Ed.2d 403 when it imposed the upper term, because the defendants here waived the right to a jury trial and agreed to allow the court to decide their guilt or innocence as well as their sentences. In its capacity as a fact finder, the court occupied the same position as a jury and was similarly able to decide whether aggravating factors existed beyond a reasonable doubt.