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Name: People v. Dalby
Case #: C041880
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 11/02/2004
Subsequent History: Rev. granted 2/16/05: S129810

Where a defendant is charged with both continuous sexual abuse of a child as well as individual molestation offenses, the jury is not required to determine which of the alternative convictions should stand. After the jury returned a verdict convicting the defendant of violations of Penal Code section 288.5, subdivision (a), as well as individual violations of sections 269 and 288a, the trial court reversed the convictions of three counts of continuous sexual abuse. On appeal, appellant argued that under Blakely v. Washington (2004) 159 L.Ed.2d 403, the jury rather than the judge should have made the determination as to…

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Name: People v. Ackerman
Case #: H026899
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 11/18/2004
Subsequent History: Rev. granted 2/23/05: S130086

Appellant entered a guilty plea to failing to register, and admitted two prior strikes. The court granted his Romero motion and struck one of the strike priors, sentencing appellant to seven years in state prison, the upper term for the registration offense doubled, plus one year for the prison prior. One day prior to filing the opinion on appellant's Wende brief, the United States Supreme Court decided Blakely v. Washington. Appellant filed a petition for rehearing within which he argued that his sentence violated the standards set forth in Blakely and Apprendi because the court imposed the…

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Name: People v. Dove
Case #: E033907
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 11/15/2004
Subsequent History: Revw. den. 2/2/05

A trial court may sentence a defendant to prison rather than granting probation under Proposition 36 even where a jury has acquitted the defendant of possession of cocaine base for sale. Here the defendant was charged with possession, possession for sale, and transportation of cocaine base; the jury convicted him of possession and transportation but acquitted him of possession for sale. However, at sentencing the trial court refused to find that the defendant possessed the drugs for personal use, and accordingly sentenced him to prison rather than placing him on probation. The appellate court upheld the sentence,…

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Name: People v. Juarez
Case #: B165580
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 11/16/2004
Subsequent History: Rev. granted 1/19/05: S130032

A trial court violated the defendant’s right to a jury trial when it imposed an upper-term sentence based on its finding of factors in aggravation. A jury found defendant guilty of carjacking and personally using a firearm. The trial judge sentenced him to the upper term of nine years for the base offense with an additional ten years for the enhancement, based on findings that the crime involved planning and sophistication, that there was more than one participant, and that the victim was vulnerable. The court further found that the defendant’s testimony at trial was inherently not…

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Name: People v. Jones
Case #: C045277
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 10/18/2004
Subsequent History: Rhrg. granted 11/2/04, opn on rhrg not published; rvw den. 3/16/05

Where a defendant has entered into a valid plea bargain in which he agrees that he may be sentenced to the upper term, he necessarily admits that his conduct is sufficient to expose him to that punishment and he reserves only the exercise of the court’s discretion in determining whether to impose that sentence. The decision in Blakely v. Washington (2004) 159 L.Ed.2d 403 does not preclude the court’s exercise of discretion in this situation, so long as the sentence imposed is within the range to which the defendant was exposed by virtue of his admissions. Because he…

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Name: People v. Fernandez
Case #: E034306
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 10/19/2004
Subsequent History: Rev. granted 1/26/05: S129338

The record contained sufficient evidence to support a finding that victims of burglary and grand theft had suffered a loss within the meaning of Penal Code section 12022.6, subdivision (a)(2), even though the defendants only succeeded in moving the property in question to the receiving dock of the burglarized premises. The "loss" referenced in section 12022.6 is satisfied by any dispossession which constitutes theft of the property. Further, the appellate court rejected the argument that by imposing a longer sentence than that contemplated in a proposed plea bargain, the court improperly punished the defendants for going to trial.…

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Name: People v. Meeks
Case #: C036854
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 10/27/2004
Subsequent History: Rehrg. den. 11/17/04; revw. den. 1/26/05

In an earlier appeal, all of appellant's contentions were affirmed, including his sentencing for multiple violations of Penal Code section 290. The Supreme Court thereafter granted review and transferred the matter back for reconsideration in light of People v. Britt (2004) 32 Cal.4th 944. The appellate court again found that the separate convictions for failing to register upon a change of address and to register annually on appellant's birthday were lawful. Further, Penal Code section 654 does not prohibit punishment for both offenses. This matter is readily distinguishable from Britt, where the appellant committed only one…

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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…

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Name: People v. Vaughn
Case #: B165489
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 10/05/2004
Subsequent History: rev. gr. 12/15/04: S129050

The trial court’s imposition of consecutive sentences does not usurp the jury’s fact-finding powers or defendant’s due process rights under Blakely v. Washington (2004) 124 S.Ct. 2531. The court first found that the claimed error was not waived because the Blakely decision extended the Apprendi v. New Jersey (2000) 530 U.S. 466 rationale into a new area. Next, the court held that the factors used to impose the upper term in this case, namely the violence and multiplicity of appellant’s crimes, were inherent in the jury’s verdict and required no separate findings by the trial court. Finally,…

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Name: People v. Wagener
Case #: D042896
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 10/22/2004
Subsequent History: 1/12/05: Rev. GRANTED: S129579

Appellant argued that the imposition of the upper term was unlawful because the aggravating factors relied upon, including appellant's recidivism, were not found by a jury, in violation of Blakely v. Washington (2004) 542 U.S. ____. The appellate court here rejected the argument and affirmed. A defendant with a conviction for which there is a tripartite sentence understands the maximum sentence he is exposed to at the outset of the proceedings. Facts relevant to the defendant or the offense may be used in sentencing without implicating the right to a jury because they do not result in…

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