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Name: People v. Vu
Case #: G033583
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 12/09/2004
Subsequent History: Rev. granted 2/16/05: S130656

Resentencing is required where three out of six aggravating factors should have been presented to a jury. The Court of Appeal rejected the Attorney General’s argument that error under Blakely v. Washington (2004) 124 S.Ct. 2531 was waived by defendant’s failure to object, since the record would not support a finding that any implied waiver was knowing and intelligent. The appellate court then found that under Blakely, a jury was required to return findings in support of three of the six aggravating factors: planning and sophistication, an attempted and actual taking of great monetary value, and defendant’s prior performance on probation. The court found that no jury finding was necessary for the remaining three factors in aggravation: the defendant’s prior convictions, his probationary status at the time of the offense, and the fact that the court could have imposed consecutive terms. As to the failure to obtain jury determinations on the first three factors, the court applied the Chapman standard and found the error not harmless beyond a reasonable doubt. As to whether the remaining factors were sufficient under California law to justify the upper term, the court applied the Watson standard and found that it was reasonably probable that absent the improper terms a different sentence would have been imposed. Finally, the court held that Blakely did not apply to the weighing of the factors in aggravation and mitigation, that process being the sole province of the sentencing judge.