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Name: People v. Stankewitz
Case #: F044592
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 02/09/2005
Subsequent History: 5/18/05: revw GRANTED: S132221
Summary

After the Supreme Court decided Blakely, appellant filed a supplemental brief contending that the court committed error by selecting the upper term for the basis of his sentence for gross vehicular manslaughter while intoxicated based on aggravating factors not admitted or found by a jury. The court based its choice of the upper term on appellant’s prior violent record, citing the increasing seriousness of the prior convictions and the fact that appellant had not performed well on probation or parole. The appellate court found the imposition of the upper term proper. Assuming Blakely applies to the imposition of upper terms, it does not require the existence of the prior convictions to be found by a jury. While none of the aggravating circumstances was precisely a fact of a prior conviction, all of them presupposed one or more prior convictions. When the court relied on them, it was also relying on the fact of the prior convictions. Even if the court’s reliance on facts other than the prior convictions was erroneous under Blakely, the error was harmless. Given the multiplicity of prior convictions, and the lack of mitigating factors, the trial court would likely have imposed the upper term even if the challenged findings had been excluded from consideration. Further, even if Blakely applies to consecutive sentencing (pending before the California Supreme Court), the issue need not be decided here because the choice of consecutive sentences was supported by the fact that the two crimes had different victims, a fact reflected in the jury verdict.