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Name: People v. Urbano
Case #: F044381
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 04/11/2005

The court did not err in admitting at trial evidence of a defendant’s gesture and comment to his attorney during his preliminary hearing, because the communications were not protected by the attorney-client privilege. In each challenged instance the defendant’s voice had been loud enough for spectators to overhear. Noting the limited scope of review and the fact that the trial court had excluded other communications that it had deemed to have been legitimate attorney-client communications, the appellate court found no error. The court next considered several Blakely issues, after first determining that the issues were reviewable absent an objection because those issues involved neither the admission nor exclusion of evidence and could thus be considered at the discretion of the appellate court even without an objection. The court went on to reject the defendant’s argument that a jury trial was required under Blakely before the trial court could deny defendant’s request to strike his strike prior and a criminal street gang enhancement. The former had been admitted and the latter had been found true by a jury, but the defendant argued that further jury findings were required in the context of a motion to strike under Penal Code section 1385. The appellate court rejected that argument, noting that Blakely does not apply to a downward sentencing departure, and likewise rejected the argument that Blakely applies to an order requiring a defendant to pay more than the minimum $200 restitution fine.