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Name: People v. Guess
Case #: H029808
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 04/24/2007
Subsequent History: 6/27/07 Cunningham rev. gr/hold: S152877

Absent a qualifying admission by defendant or determination by at jury trial, the trial court may not rely on the fact that a defendant was on parole when the crime was committed to justify imposition of the upper term. Since the records proving the status involve action by the Department of Correction, there is no guarantee of requisite reliability inherent in a recidivism factor. (Almendariz-Torres v. United States (1998) 523 U.S. 224.) The 6th Amendment right to confrontation is a trial right and is not necessarily applicable at the probable cause preliminary hearing. Appellant requested a continuance of the preliminary hearing on the basis that he had received relevant discovery only two days earlier. In order to prevail on a claim that the trial court abused its discretion when it denied the continuance request, he had to demonstrate that as a consequence, he was denied a fair trial or the denial otherwise affected the ultimate judgement, which he was not able to do. Evidence Code section 1291 providing for admission of former testimonial statements at trial if the declarant is unavailable and the defendant has had a prior opportunity for cross-examination does not violate a defendant’s right to confrontation. (Crawford v. Washington (2004) 541 U.S. 36; People v. Seijas (2005)36 Cal.4th 291.)