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Name: People v. Linarez
Case #: C052722
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 10/05/2007
Subsequent History: rvw granted 1/16/08, S158154

A defendant can waive his 6th Amendment right to a jury trial on determination of aggravating factors necessary to justify an upper term sentence by entering a tailored Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.) Appellant pled guilty to assault and admitted a firearm enhancement. In entering his plea, he agreed to a Harvey waiver in which he stipulated that the trial court could consider defendant’s prior criminal history and the entire factual background of the case when imposing sentence. Appellant also acknowledged the court could sentence him to a maximum 14-year term. Referring to the probation report, the trial court found numerous factors in aggravation, including the nature of the offense and appellant’s prior juvenile criminal record. The appellate court found that with this broad Harvey waiver, appellant waived his 6th Amendment right to a jury trial and that the factors recited by the court justified the upper term. Further the court rejected the holding in United States v. Tighe (9th Cir. 2001) 266 F.3d 1187, and held that because the constitution permits the juvenile court judge to adjudicate delinquency without a jury trial, there is no constitutional impediment to the use of juvenile adjudications to later enhance a sentence for an adult conviction. (People v. Bowden (2002) 102 Cal.App.4th 387.)