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Name: People v. Velasquez
Case #: B171476
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 07/06/2007
Summary

The trial court did not commit Cunningham error in imposing the upper term where two of the aggravating factors cited were recidivism related. Velasquez contended that the imposition of the upper term on count 3 for assault with a firearm, and the firearm enhancement related to that count was improper because the trial court failed to state on the record its reasons for imposing the upper terms. However, the appellate court found the issue waived for failure to object below. The trial court, however, stated reasons for imposing the sentence on count 3 consecutively with the sentence on count 9: the crimes involved great violence or injury, the victims were vulnerable, Velasquez was armed, he had a pattern of violent conduct which was a danger to society, and that he had served a prior prison term. The probation report and the prosecutor’s sentencing memorandum identified several other aggravating factors. The sentence was subsequently vacated and remanded for further consideration in light of Cunningham v. California. Even though the trial court did not state its reasons for imposing the upper term, it is apparent that two of the aggravating factors present in the case directly related to Velasquez’s recidivism, (the prior prison term and the numerous prior convictions), and those two factors alone justified the imposition of the upper term. Therefore, the trial court did not err.