P. v. Murillo

Filed 11/29/04 P. v. Murillo CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
RUDY MURILLO,
Defendant and Appellant.
D042605
(Super. Ct. No. SCE222140)
APPEAL from a judgment of the Superior Court of San Diego County, Patricia K.
Cookson, Judge. Affirmed in part and reversed in part.
A jury convicted appellant Rudy Murillo of mayhem (Pen. Code, § 203),1 assault
with caustic acid (§ 244, subd. (a)(1)), arson causing great bodily injury (§ 451, subd.
(a)), battery with serious bodily injury (§ 243, subd. (a)), and corporal injury to a
cohabitant (§ 273.5, subd. (a)) in connection with his assault on the victim, Sheri Vargas
(Sheri). The jury found true the special allegations, appended to all the charged offenses
except the arson offense, Murillo personally used a dangerous weapon in committing the

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offenses (§ 12022, subd. (b)(1)) and he inflicted great bodily injury in connection with
the offenses within the meaning of section 12022.7 (the GBI enhancement). The court
sentenced Murillo on the mayhem count to the upper term of eight years, plus a
consecutive upper five-year term for the GBI enhancement, plus a consecutive one-year
term for the deadly weapon enhancement, for a total term of 14 years.2
On appeal, Murillo argues the court erred by imposing the upper term sentence on
the mayhem conviction and by imposing any term for the GBI enhancement. Murillo
also asserts that even if the court could impose a term for the GBI enhancement, it was
error to impose the upper term on the GBI enhancement.
I
FACTS
A. Prosecution Case
Murillo met Sheri and her sister, Olivia, when they were all children. As they
grew up together, Murillo and Olivia became romantically involved and had a baby
together in 1998. Murillo, Olivia and their baby lived with Olivia's family (including
Sheri) at the Vargases' family home in Riverside, California.
Shortly after the baby was born, Murillo and Sheri became romantically involved.
When Olivia discovered their relationship, she demanded that Murillo leave. Murillo and
Sheri left the Vargas home and moved in with Murillo's father. However, after
approximately eight months, Sheri moved out and returned to live with her ailing father
1 All further statutory references are to the Penal Code unless otherwise specified.

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in Riverside. While Sheri was in Riverside, Murillo dated both Sheri and Olivia. Sheri
stopped seeing Murillo when she learned he had resumed his relationship with Olivia, but
after Murillo terminated his relationship with Olivia, Sheri reconciled with Murillo and
returned to live with him at his father's home for several months before the assault.
On the morning of the assault, Murillo, Sheri, and Murillo's father drove to Pauma
Casino to check on a job for Murillo. They learned Murillo had been hired and, on the
drive home, celebrated by consuming two 18-packs of beer. By the early evening,
Murillo and Sheri had consumed approximately 15 beers each and, although they had
gotten along fine during the day, they began arguing in the early evening about Sheri's
plan to visit her mother in Riverside. During the argument, Sheri told Murillo she did not
want to be with him because he treated her poorly, and later told Murillo she planned to
leave him.
Murillo told Sheri to leave. However, when she started to gather her clothes,
Murillo grabbed them from her, walked outside, threw them on the ground and sprayed
lighter fluid on them. She confronted him, pushed him, and asked what he was doing.
He told her, "Shut up [or] I'll light you on fire, too," and Sheri replied, "Well, do it then"
because she did not believe Murillo's threat. Murillo reacted by spraying her with lighter
fluid, but Sheri continued arguing defiantly with Murillo, not believing he would light her
on fire.
2 The court imposed but stayed the sentences for the remaining counts under section
654.

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Murillo pulled a lighter from his pocket and moved to set the pile of clothes on
fire. Sheri pushed Murillo and a shoving match ensued. As she advanced on Murillo, he
lit the sleeve of her sweater on fire. The fire spread quickly despite their joint efforts to
extinguish the flames. Murillo shouted for his father, who brought water and eventually
extinguished the flames. Sheri went inside and asked for help from Felicia, the girlfriend
of Murillo's brother, telling Felicia that Murillo had thrown lighter fluid and a match on
her.
Before Murillo's father took Sheri to the hospital, Murillo told Sheri he was sorry
and she assured him she would not "tell on him" because she did not want him to get in
trouble. While in the hospital, Sheri told Olivia Murillo had deliberately set her on fire
but asked Olivia not to tell anyone because Sheri did not want Murillo to get in trouble.
Police only learned the incident was not an accident when they contacted Felicia in
response to her complaint that Murillo's brother had assaulted her. After telling the
deputy of Murillo's brother's assault on her, Felicia told the deputy Murillo had
deliberately set Sheri on fire.
Sheri suffered severe external burn injuries, and also suffered burn injuries to her
lungs, trachea and vocal chords. She has a poor prognosis and doctors believe it is "just a
matter of time" before her airway will irreparably close.
B. The Defense Case
The defense admitted Murillo set Sheri on fire but claimed it was an accident.
Murillo testified he was drunk and angry with Sheri. He took her clothes, piled them on
the ground, and soaked them with lighter fluid intending to light the clothing pile on fire.

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She grabbed the clothes, but he pulled them away from her, knocking her to the ground in
the process. When he lit the clothes pile on fire, the flames "went up and [Sheri] caught
fire as well." He helped extinguish the fire, and suffered burns in the process.
While Sheri was hospitalized, Murillo and Olivia resumed their romantic
relationship. Olivia testified that she visited Sheri in the hospital, and Sheri said she and
Murillo had been fighting when he burned her. A week later, Sheri told Olivia the fire
was an accident. However, Sheri also told Olivia that if she (Sheri) could not have
Murillo, nobody could, and she would try to have him imprisoned. Murillo's father
testified that when he drove Sheri to the hospital, she told him to tell Murillo she loved
him and it was only an accident.
II
THE SECTION 12022.7 ENHANCEMENT ISSUE
The information specially alleged that in connection with the charged offense of
aggravated mayhem, Murillo inflicted great bodily injury in connection with the offense
within the meaning of section 12022.7, subdivision (e).3 The jury found this allegation
true in connection with its verdict finding Murillo guilty of mayhem, a lesser-included
offense to the charged offense. The court sentenced Murillo on the mayhem conviction
to the upper term and imposed a consecutive five-year upper term for the GBI
enhancement. Murillo argues it was improper to impose any additional term for the GBI
3 Section 12022.7, subdivision (e) provides an enhanced term for "[a]ny person who
personally inflicts great bodily injury under circumstances involving domestic
violence . . . . As used in this subdivision, 'domestic violence' has the meaning provided
in subdivision (b) of Section 13700."

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enhancement because great bodily injury is an element of the offense of mayhem (People
v. Hill (1994) 23 Cal.App.4th 1566, 1575), and section 12022.7 ordinarily bars imposing
a GBI sentence enhancement when great bodily injury is an element of the underlying
offense. (People v. Pitts (1990) 223 Cal.App.3d 1547, 1558-1560.)
Section 12022.7 precludes imposing its sentence enhancement if great bodily
injury is an element of the underlying offense under most, but not all, of its specified
circumstances. Section 12022.7 imposes additional punishment for great bodily injury
(subdivision (a)), for great bodily injury causing the victim to be comatose or paralyzed
(subdivision (b)), for great bodily injury to an elderly victim (subdivision (c)) or to a
young victim (subdivision (d)), and for great bodily injury in a domestic violence context
(subdivision (e)). Subdivision (g) then specifies that "[s]ubdivisions (a), (b), (c), and (d)
shall not apply if infliction of great bodily injury is an element of the offense." Thus,
even if great bodily injury is an element of the underlying offense, the enhancement may
be imposed if the offense was committed under circumstances involving domestic
violence. (People v. Hawkins (2003) 108 Cal.App.4th 527, 531.)
Murillo concedes a sentence enhancement for a section 12022.7, subdivision (e)
violation is not barred by subdivision (g), but argues the jury did not find he violated
subdivision (e) because the court instructed the jury only on subdivision (a)'s general
elements and did not instruct on the additional "domestic violence" element required by
subdivision (e). The court did erroneously omit the "domestic violence" element when it
instructed on the GBI enhancement. However, not instructing on an element of an
enhancement, like not instructing on an element of a crime, does not require reversal of

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the true finding if the error was harmless beyond a reasonable doubt. (People v.
Sengpadychith (2001) 26 Cal.4th 316, 324-326.) A court may conclude the error was
harmless under this standard when it is clear beyond a reasonable doubt the omitted
element was uncontested and was supported by overwhelming evidence, or when a court
can determine beyond a reasonable doubt, based on jury findings that may be inferred
from other instructions, the instructional omission did not contribute to the verdict.
(People v. Garcia (2001) 25 Cal.4th 744, 761 (conc. & dis. opn. of Kennard, J.).)
The section 12022.7, subdivision (e) enhancement applies when a person inflicts
great bodily injury under circumstances involving domestic violence, and specifies the
term " 'domestic violence' has the meaning provided in subdivision (b) of Section 13700."
Section 13700, subdivision (b) defines domestic violence as abuse committed against a
person who is a "cohabitant . . . or person with whom the suspect has had a . . . dating . . .
relationship. For purposes of this subdivision, 'cohabitant' means two unrelated adult
persons living together for a substantial period of time, resulting in some permanency of
relationship." It is uncontested Murillo and Sheri were cohabitants at the time of the
assault and the existence of that relationship was supported by overwhelming evidence,
which supports the conclusion the omission of the element was harmless beyond a
reasonable doubt.
More importantly, other portions of the verdict convince us the instructional
omission did not contribute to the verdict. The same assault and injury that formed the
basis for the verdict on the mayhem and GBI enhancement charges also formed the basis
for the verdict on count 6, charging Murillo with corporal injury to a cohabitant (§ 273.5,

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subd. (a)), which caused great bodily injury to the victim. The jury was instructed that to
find Murillo guilty of count 6 and the appended GBI enhancement, it was necessary to
find that he willfully inflicted bodily injury "upon his cohabitant," and defined cohabitant
as "unrelated persons living together in a substantial relationship, one shown at least by
permanence and sexual or amorous intimacy." The jury, by its guilty verdict on count 6
and its true finding on the appended GBI enhancement, necessarily found beyond a
reasonable doubt Murillo and Sheri were cohabitants at the time of the assault that
produced the great bodily injury.4 We are therefore convinced beyond a reasonable
doubt the instructional omission did not contribute to jury's true finding on the section
12022.7, subdivision (e) enhancement.
III
THE IMPACT OF BLAKELY
A. Background
The prosecution sought the upper term on the mayhem conviction and filed a
statement listing numerous aggravating factors to support the upper term; the probation
report also recommended the upper terms on both the mayhem conviction and the GBI
enhancement, citing numerous aggravating factors. Murillo filed a statement seeking
either probation or the lower term, citing numerous mitigating factors. At sentencing,
4 Because the jury was instructed on and affirmatively found the facts necessary to
the enhanced punishment provided by section 12022.7, subdivision (e), we are also
convinced Blakely v. Washington (2004) 542 U.S ___ [124 S.Ct. 2531] (Blakely) does not
bar imposition of a term based on the true finding.

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Murillo argued the facts cited by the prosecution in aggravation did not support the upper
term, and the factors in mitigation outweighed the factors in aggravation.5
The trial court sentenced Murillo to the eight-year upper term on the mayhem
conviction, citing two aggravating facts: the crime involved great violence disclosing a
high degree of cruelty and viciousness (Cal. Rules of Court, rule 4.421(a)(1)),6 and
Murillo's criminal behavior was increasing in seriousness (rule 4.421(b)(2)). The trial
court also sentenced Murillo to a consecutive five-year upper term on the GBI
enhancement, citing five aggravating facts: the victim's injuries were so severe that her
life span was reduced (rule 4.408(a)); Murillo was armed with and used a deadly weapon
(rule 4.421(a)(2)); Sheri was particularly vulnerable (rule 4.421(a)(3)); Murillo evidenced
a high degree of cruelty, viciousness and callousness (rule 4.421(a)(1)); and Murillo's
convictions and true findings are increasing in seriousness (rule 4.421(b)(2)).
On appeal, Murillo initially argued resentencing was necessary because the court
relied on certain aggravating factors to impose the upper term on both the mayhem
conviction and the GBI enhancement in violation of the proscription against the so-called
"dual use of facts"; the Attorney General argued, among other things, the court did not
5 For example, the prosecution cited the particular vulnerability of the victim, but
Murillo argued Sheri was considerably larger than him and Sheri testified she never
"back[ed] down" when confronting Murillo. The prosecution also cited the "high degree
of cruelty, viciousness or callousness" factor, but Murillo's counsel contested this factor,
arguing that Murillo's intoxicated state led to a series of rash acts that produced
unintended results, and his efforts to put out the fire and his remorse showed this was not
a cold or calculated attack.
6 All further rule references are to the California Rules of Court.

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rely on elements of the offenses or enhancements and therefore did not violate the
prohibition against the dual use of facts. However, during the pendency of this appeal the
United States Supreme Court issued its decision in Blakely, which held a state trial court's
imposition of a sentence exceeding the statutory maximum of the standard range for the
charged offense on the basis of additional factual findings made by the court violated the
defendant's Sixth Amendment right to trial by jury. (Blakely, supra, 124 S.Ct. at
p. 2538.) Because the trial court imposed upper terms for the mayhem conviction and the
GBI enhancement true finding, we requested further briefing from the parties on the
effect of Blakely in this case.
In his brief, Murillo contends, pursuant to the analysis of Blakely, the court's
finding of facts to justify its imposition of upper term sentences violated his right to a
jury trial. The Attorney General responds that Murillo waived or forfeited the issue by
not raising a challenge to the sentences in the proceedings below, Blakely is inapplicable
to California's sentencing scheme, and even if Blakely might apply to some California
cases, its application was mooted here by Murillo's criminal history.
B. The Issue Is Preserved
In People v. Scott (1994) 9 Cal.4th 331, the California Supreme Court held a
defendant's failure to challenge in the trial court the imposition of an aggravated sentence
based on erroneous or flawed information waived that issue for purposes of appeal.
However, Scott's reasons for its waiver rule--it was necessary to facilitate the prompt
detection and correction of error in the trial court, thus reducing the number of appellate
claims and preserving judicial resources (id. at pp. 351-353)--is a pragmatic rationale that

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does not support the application of the waiver rule here. Prior to Blakely, California
courts and numerous federal courts consistently held there was no constitutional right to a
jury trial in connection with a court's imposition of consecutive sentences. (People v.
Groves (2003) 107 Cal.App.4th 1227, 1230-1231; U.S. v. Harrison (8th Cir. 2003) 340
F.3d 497, 500; U.S. v. Lafayette (D.C. Cir. 2003) 337 F.3d 1043, 1049-1050; U.S. v.
Hernandez (7th Cir. 2003) 330 F.3d 964, 982; U.S. v. Davis (11th Cir. 2003) 329 F.3d
1250, 1254; U.S. v. Lott (10th Cir. 2002) 310 F.3d 1231, 1242-1243; U.S. v. White (2d
Cir. 2001) 240 F.3d 127, 136.) No published case in California had held a different rule
applied in connection with the imposition of an upper term. Because of this state of the
law, an assertion of a constitutional challenge to the imposition of an upper term would
not have achieved the purpose of prompt detection and correction of error in the trial
court. Further, because Blakely was decided after Murillo's sentencing, Murillo cannot be
said to have knowingly and intelligently waived his right to a jury trial. (See Blakely,
supra, 124 S.Ct. at p. 2541 [noting that "[i]f appropriate waivers are procured," a state is
free to utilize judicial fact-finding in its sentencing scheme].)
The Attorney General argues Murillo forfeited his right to assert the sentence was
error because he did not object below.7 However, Murillo vigorously advocated in the
7 The Attorney General argues that U.S. v. Cotton (2002) 535 U.S. 625 held a
defendant's failure to object at trial can forfeit his right to assert improper sentencing
under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) even though Apprendi had
not been decided at the time of trial. The Attorney General argues that, by extension,
Murillo's failure to object at trial forfeited his right to assert improper sentencing under
Blakely even though his trial pre-dated Blakely. However, the Attorney General does not
articulate how the forfeiture doctrine is distinct from Scott's waiver doctrine, much less
why such distinctions should call for a different analysis. Moreover, Cotton evaluated a

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trial court for a mitigated sentence by filing a statement in mitigation urging the court to
impose a lesser sentence and, more significantly for purposes of the concerns expressed
in Blakely, by arguing the facts militated against affirmative findings on many of the
aggravating factors identified by the court. Under the circumstances, it would be
unreasonable to find Murillo forfeited a constitutional challenge of which he was
unaware, and we find the forfeiture rule to be inapplicable.
C. Blakely Applies to an Upper Term Determination
In Blakely, the United States Supreme Court held that " '[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' "
(Blakely, supra, 124 S.Ct. at p. 2356.) The question of whether Blakely precludes a trial
court from making findings on aggravating facts in support of an upper term sentence is
currently under review by the California Supreme Court. (People v. Towne, review
granted July 14, 2004, S125677; People v. Black, review granted July 28, 2004,
distinct claim--whether a grand jury indictment alleging conspiracy to possess and
distribute drugs but omitting any quantity allegation deprived the court of the ability to
sentence the defendant to the higher sentence based on the amount possessed when the
defendant did not object and it was " 'essentially uncontroverted' " the amount possessed
by the defendant qualified for the higher sentence. (535 U.S. at pp. 632-633.) Cotton
effectively concluded that the omission was harmless because, considering the evidence,
"[s]urely the grand jury, having found that the conspiracy existed, would have also found
that the conspiracy involved [the requisite amount]." (Id. at p. 633.) Thus, the forfeiture
analysis in Cotton turned on its conclusion that the omission was harmless to the
defendant's rights. Here, however, Murillo did contest the factual basis for the sentence
and it was not " 'essentially uncontroverted' " that the aggravating factors were present.

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S126182.) Pending resolution of the issue by the Supreme Court, we must determine
whether Blakely applies here.
Under California's determinate sentencing law, where a penal statute provides for
three possible prison terms for a particular offense, the court is required to impose the
middle term unless it finds, by a preponderance of the evidence, the circumstances in
aggravation outweigh the circumstances in mitigation. (§ 1170, subd. (b); rule 4.420(c),
(d).) The Attorney General argues that imposition of an upper term sentence under the
California determinate sentencing scheme is not the same as "the imposition of a penalty
beyond the standard range" and thus does not implicate Blakely. We conclude this
distinction is one without a difference. Although an upper term is a "statutory maximum"
penalty in the sense that it is the highest sentence a court can impose for a particular
crime, it is not necessarily the "maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or admitted by the defendant," which is the
relevant standard for purposes of applying Blakely. (Blakely, supra, 124 S.Ct. at p. 2357;
see Apprendi v. New Jersey (2000) 530 U.S. 466, 491-497 [state hate crime statute
authorizing the imposition of an enhanced sentence based on a judge's finding of certain
facts by a preponderance of the evidence violated the due process clause]; Ring v.
Arizona (2002) 536 U.S. 584, 592-593.)
As explained in Blakely, when the judge's authority to impose a higher sentence
depends on the finding of one or more additional facts, "it remains the case that the jury's
verdict alone does not authorize the sentence," as required to comply with constitutional
principles. (Blakely, supra, 124 S.Ct. at p. 2538.) The same is true here. Because the

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maximum penalty the court can impose under California law without making additional
factual findings is the middle term, Blakely applies. Thus, the question becomes whether
the trial court could properly rely on any of the cited factors as the basis for its decision to
impose the upper term without violating Blakely.
In the present case the trial court relied on a number of aggravating factors as the
basis for its decision to impose the upper term for the mayhem conviction and the GBI
enhancement. The court noted Sheri's injuries were severe, she was particularly
vulnerable, and Murillo evidenced a high degree of cruelty, viciousness and callousness.
Under Blakely, the constitution requires a jury to determine any fact the law makes
essential to the punishment other than the fact of the defendant's prior conviction.
(Blakely, supra, 124 S.Ct. at p. 2537, fn. 5, p. 2540 [any fact that pertains to whether the
defendant has a legal right to a lesser sentence].) Applying those standards to the present
case, there is no finding by the jury on which the trial court could rely for the selection of
the upper term. Accordingly, we find on this record the court's decision to select the
upper term for the mayhem conviction and the GBI enhancement violated the defendant's
Sixth Amendment right to a jury trial, as defined in Blakely.
D. The Attorney General's Argument
The Attorney General argues that, even if Blakely requires jury findings on facts
justifying selection of the upper term sentences in some cases, Murillo's prior criminal
record removes this case from Blakely's application. The Attorney General notes that
both Blakely and Apprendi expressly preserved Almendarez-Torres v. U.S. (1998) 523
U.S. 224, which held that a defendant has no right to have a jury determine the truth of a

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prior conviction allegation. The Attorney General argues Murillo's juvenile record
automatically qualified him for the upper term regardless of the presence of other
aggravating factors (because a single factor in aggravation may qualify a defendant for
the upper term, see People v. Cruz (1995) 38 Cal.App.4th 427, 433), and under
Almendarez-Torres a court may determine the truth of this "upper-term-eligible" factor
for sentencing purposes without offending the federal Constitution. The Attorney
General's argument is that because the combined impact of the jury's verdict and the
court's Almendarez-Torres finding makes the upper term a permissible sentence, the trial
court's remaining decision of whether to impose the maximum term may be guided by
consideration of traditional sentencing factors unencumbered by Blakely's requirements
for jury findings. Stated another way, the Attorney General argues if there is one
aggravating factor that does not require a jury finding under Blakely, the upper term
becomes the maximum term and consideration of Blakely aggravating factors then is
irrelevant because the upper term sentence is within the maximum.
We are not persuaded by the Attorney General's argument because it is founded on
the legal predicate that, under rule 4.421(b)(2) [prior convictions are numerous or of
increasing seriousness], Murillo's prior juvenile adjudication is a sentence aggravation
factor allowing imposition of the upper term.8 The legal predicate is not correct in this
8 There is a split of authority on the second aspect of the Attorney General's
argument, e.g. whether or not the "numerous" or "increasing seriousness" issues are
Blakely issues. (Compare People v. George (2004) 122 Cal.App.4th 419, 425-426
[increasing seriousness is a Blakely issue] with People v Sample (2004) 122 Cal.App.4th
206, 221-225 [increasing seriousness is within Almendarez-Torres exception].) Although
Blakely did reaffirm the Almendarez-Torres rule that a defendant has no Sixth

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case under the language of rule 4.421(b)(2). That rule provides a circumstance in
aggravation can include the fact that "[t]he defendant's prior convictions as an adult or
sustained petitions in juvenile delinquency proceedings are numerous or of increasing
seriousness." (Ibid., italics added.) The plain language of rule 4.421(b)(2) requires an
evaluation of the quantity or quality of a defendant's prior offenses, and therefore has no
application to a defendant who does not have at least two prior convictions or juvenile
adjudications to serve as the grist for the quantitative or qualitative determination
described by rule 4.421(b)(2). The Attorney General cites no authority holding that a
defendant like Murillo--one whose prior record is limited to a single prior offense--is
"upper term eligible" under rule 4.421(b)(2). Accordingly, even apart from applicability
of Blakely, there is no showing Murillo was "upper term eligible" based on a sustained
petition for a single offense when he was 14 years old, and he thereafter successfully
completed his probation and remained "clean" during the ensuing six years. Therefore,
Amendment right to have a jury determine the truth of a prior conviction allegation for
sentencing purposes, the core of Blakely is premised on the notion a defendant has a
constitutional right under the Sixth Amendment to a jury trial as to any other factual
determination increasing the sentence that could be imposed based on the finding of guilt
on the offense alone. Under California's determinate sentencing law, the mere fact of one
or more prior convictions (although relevant for Three Strikes purposes) does not alone
serve as an aggravating factor; instead, there must be an additional quantitative finding
(the defendant's prior convictions are "numerous") or qualitative determination (the
defendant's prior convictions are "of increasing seriousness") before a defendant's
criminal history qualifies as an aggravating factor. (Rule 4.421(b)(2).) Whether these
quantitative or qualitative determinations may be beyond the limited Almendarez-Torres
exception preserved by Blakely and, as such, remain factual determinations within the
province of a jury, are questions we need not in this case resolve because we conclude the
language of rule 4.421(b)(2) precludes its application in this case even if these
quantitative or qualitative determinations were within the Almendarez-Torres exception.

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the Attorney General's argument is not applicable to this case because there is no
aggravating factor that does not require a jury finding under Blakely.
DISPOSITION
The sentence, insofar as the court imposed the upper terms for the mayhem
conviction and the GBI enhancement, is vacated; in all other respects, the judgment is
affirmed. The case is remanded to the superior court to conduct a new sentencing hearing
consistent with the principles discussed in this opinion.
McDONALD, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.

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