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Name: People v. Picado
Case #: A102251
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 11/05/2004
Subsequent History: Rev. granted 1/19/05: S129826

Picado was convicted of five felony assaults. Counts two, three, six and seven involved different victims. Count five involved the same victim as count three, but was perpetrated with a different weapon. The trial court sentenced Picado consecutively on all five counts, finding that the crimes were independent of one another and involved separate acts of violence. On appeal, Picado argued that section 654 barred consecutive sentences because all of the convictions derived from a singular intent to bring the perpetrators of the assaults to the fight, and therefore Picado was merely an aider and abettor based on a single underlying act or objective. The appellate court found that the consecutive sentences were proper. There was ample evidence that from which the jury could have inferred that Picado intended to aid and abet each of the violations, even though he personally was not found to have used the weapons in the attacks. There was no showing that the jury necessarily based its verdicts on the natural and probable consequences theory. Picado also argued that under Blakely the trial court erred by imposing the aggravated term as to count three and ordering the terms to run consecutively, based on facts neither found by the jury nor admitted by him. The appellate court found that the issue was not waived because Blakely was decided after appellant was sentenced. Further, the sentence imposed did not violate Blakely. Nothing in Blakely precludes the trial court from choosing the upper term from among the alternatives within the sentencing range, nor is there a presumption in favor of concurrent sentencing.