P. v. Perez

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Filed 10/28/04 P. v. Perez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
TONY PEREZ,
Defendant and Appellant.
E034462
(Super.Ct.No. FSB 038094)
OPINION
APPEAL from the Superior Court of San Bernardino County. Kenneth R. Barr,
Judge. Affirmed in part; reversed in part.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Senior Assistant Attorney General, Lynn G. McGinnis and
David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Tony Perez appeals from judgment entered following a jury conviction
for assault with a deadly weapon, a knife (Pen. Code, § 245, subd. (a)(1).)1 The court
also found true that defendant had two prior prison term convictions (§ 667.5, subd. (b).)
The jury found not true the allegation that defendant inflicted great bodily injury (§
12022.7, subd. (a)). The trial court sentenced defendant to six years in prison.
Defendant contends there was insufficient evidence to support his conviction for
assault with a deadly weapon. He also asserts that the trial court erred in admitting a
photograph of him handcuffed at the time of his arrest. In addition, he complains the trial
court erred in not sua sponte instructing the jury that, when determining guilt, it must
disregard the image of defendant handcuffed when arrested.
We conclude there was no error and affirm the judgment.
1. Background Facts
On February 7, 2003, at 8:00 p.m., police officer Outlaw responded to a dispatch
call to investigate a stabbing at apartment C in the Meadowbrook Towers apartment
complex in San Bernardino. The police located the victim, Gabriel Perez, who is
defendant’s brother, in the park across the street from the apartment complex. Outlaw
approached Gabriel in the park and noticed he had a cut over his eyebrow and blood on
his forehead, hands, and sweatshirt. Gabriel also had a puncture wound in his chest.
Outlaw was notified that two security guards at Meadowbrook Towers had
detained defendant in the parking structure. Outlaw went to the parking structure and
1 Unless otherwise noted, all statutory references are to the Penal Code.

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spoke to defendant, who gave a false name. Outlaw noticed dried blood on defendant’s
hands but did not see any injuries on defendant. Defendant denied knowing anything
about a stabbing or knowing anyone in apartment C.
Outlaw went to apartment C. He saw a trail of blood droplets from the base of the
stairs leading to the entrance of the apartment complex. Gina Perez, defendant and
Gabriel’s sister, answered the door at apartment C. She refused to give Outlaw and other
officers permission to enter until she was advised that, if she was hiding something, she
could be charged with a crime. Gina reluctantly permitted the officers to enter her
apartment.
When Outlaw entered Gina’s kitchen, he found a white polo shirt soaking in the
sink among some dishes. The shirt had blood stains on the front of the shirt. At the
bottom of the sink, Outlaw found a knife handle with a missing blade.
Other police officers arrived at the crime scene and spoke to defendant. Defendant
told Officer Sandoval he had been visiting a friend at Meadowbrook Towers but claimed
he was unable to recall the friend’s name or address. When asked about the blood on his
hands, defendant said he cut himself on glass. Sandoval did not see any cuts on defendant
or glass nearby.
At trial Gabriel testified he was stabbed on February 7, 2003, by “two Chinese
dudes.” As he was walking down the street, four Chinese men asked him for money.
When Gabriel said he did not have any, two of the men attacked him. Gabriel walked
toward Gina’s apartment after the stabbing. When he got to the landing in front of her
apartment, defendant noticed Gabriel was wounded and tried to help him. Defendant

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insisted he go to the hospital but, since Gabriel was a fugitive from parole, he did not
want to go to the hospital. Gabriel fled to the park. He repeatedly testified that defendant
did not stab him.
Officer Combado testified that he contacted Gabriel in the park after the stabbing
and asked Gabriel what had happened. Gabriel told him a Chinese man had jumped out
of the bushes, yelled “fuck you,” and stabbed him. Combado took Gabriel to the
hospital. While at the hospital, Sergeant Filson called Combado and told him defendant
was in custody. When Combado told Gabriel defendant was in custody, Gabriel said,
“How did you know it was him?” When Combado asked Gabriel how the stabbing
occurred, Gabriel said, “He should have never done this.” Gabriel refused to say
anything else about the stabbing.
Gina testified she did not hear or see the stabbing. She also did not know why the
shirt was soaking in the sink or who put it there. She said defendant had been in her
apartment earlier in the evening and later on had walked in but she did not see him there
within an hour or two before the police arrived. Sometime during the evening, he had
walked inside while she was looking the other way, eating. Defendant walked straight to
the sink and then out without saying anything. Gina admitted telling officers she was
“sick and tired” of everything, including her brothers.
Outlaw testified that Gina told him Gabriel was stabbed in the corridor outside her
apartment and that she saw her brothers fighting out there the night of the stabbing. She
also said she heard Gabriel cry out that defendant had stabbed him. Gina told Outlaw

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that when Gabriel got drunk, he started fights with defendant. Gina also said that
defendant had taken off the white shirt and put it in the sink of water.
2. Sufficiency of Evidence
Defendant contends there was insufficient evidence to support his conviction for
assault with a deadly weapon under section 245, subdivision (a)(1). We disagree.
Our review of an insufficiency of evidence claim is limited. “In assessing a claim
of insufficiency of evidence, the reviewing court’s task is to review the whole record in
the light most favorable to the judgment to determine whether it discloses substantial
evidence--that is, evidence that is reasonable, credible, and of solid value--such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”
(People v. Rodriguez (1999) 20 Cal.4th 1, 11, citing People v. Johnson (1980) 26 Cal.3d
557, 578; see also People v. Bolin (1998) 18 Cal.4th 297, 331.)
If the verdict is supported by substantial evidence, we are bound to give due
deference to the trier of fact and not retry the case ourselves. (Jackson v. Virginia (1979)
443 U.S. 307, 319, 326; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) It is the
exclusive function of the trier of fact to assess the credibility of witnesses and draw
reasonable inferences from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303;
People v. Hale (1999) 75 Cal.App.4th 94, 105.) The standard of review applies even
“when the conviction rests primarily on circumstantial evidence.” (People v. Kraft
(2000) 23 Cal.4th 978, 1053.) Here, the record discloses ample evidence to support the
trial court’s verdict.

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Defendant argues the People failed to establish that he was the one who stabbed
Gabriel and there is evidence establishing someone else was the perpetrator. Gabriel
testified that defendant did not stab him. Rather, two Chinese men did. Gina also
testified she did not see or hear the stabbing incident.
Defendant asserts that, even assuming the jury did not find Gabriel and Gina
credible witnesses, the People failed to meet their burden of proving defendant
committed the stabbing offense. We disagree. Although there was no direct evidence,
there was ample circumstantial evidence from which a reasonable juror could infer
defendant stabbed Gabriel. Such evidence included Officer Combado’s testimony that,
when he told Gabriel defendant was in custody, Gabriel exclaimed, “How did you know
it was him” and “He should have never done that.” Officer Outlaw testified Gina said
she saw defendant and Gabriel fighting in the corridor outside her apartment and heard
Gabriel cry out that defendant had stabbed him.
Outlaw also testified that shortly after arriving at Gina’s apartment to investigate
the stabbing, he saw a trail of blood leading to Gina’s apartment and found a knife handle
and white shirt with blood stains in Gina’s sink. In addition, defendant fled the scene,
gave the police an alias, denied knowing anyone in Gina’s apartment, and had blood on
his hands.
This evidence is more than sufficient to support defendant’s conviction for
stabbing his brother with a knife in a fit of rage, despite his brother and sister’s denial that
he did it.

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3. Admissibility of Photograph of Defendant Handcuffed
Defendant contends the trial court abused its discretion in admitting into evidence,
over defendant’s objection, a photograph of defendant handcuffed, with bloody hands.
The photograph was taken at the time of defendant’s arrest. Defendant argues the
photograph unfairly portrayed him as a violent and lawless man thereby undermining any
notion of his innocence. Defendant argues the photograph should have been excluded
under Evidence Code section 352 as being more prejudicial than probative.
The admission of photographs of defendant lies within the broad discretion of the
trial court. (People v. Smithey (1999) 20 Cal.4th 936, 974; see also People v. Crittenden
(1994) 9 Cal.4th 83, 134.) “The court’s exercise of that discretion will not be disturbed
on appeal unless the probative value of the photographs clearly is outweighed by their
prejudicial effect. [Citations.]” (Crittenden, supra, at p. 134.) The evidence is
prejudicial in the context of the Evidence Code section 352 analysis when it has only
slight probative value but tends to create an undue emotional bias against the defendant.
(Ibid.)
Here, the trial court’s admission of the photographs into evidence did not amount
to a manifest abuse of discretion. The probative value of the photographs was great. The
photographs corroborated the officers’ testimony that defendant had blood on his hands
and provided circumstantial evidence that defendant was involved in the stabbing.
Defendant argues the photograph was highly prejudicial because it showed
defendant handcuffed and this infringed his presumption of innocence. But the jury was

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well aware that defendant had been arrested and thus showing a photograph of defendant
in handcuffs at the time of his arrest was not highly prejudicial.
In addition, the jury was instructed on the presumption of innocence (CALJIC No.
2.90) and was aware that, even though the defendant had been arrested, handcuffed,
charged with a crime, and tried, he was presumed innocent unless proven guilty. It must
be presumed, there being no evidence to the contrary, that the jury followed CALJIC No.
2.90 and did not find defendant guilty based on the photograph showing defendant
handcuffed at the time of his arrest. (Weeks v. Angelone (2000) 528 U.S. 225, 234;
People v. Green (1980) 27 Cal.3d 1, 29.)
Defendant cites several cases holding that the trial court committed reversible
error by requiring the defendant to appear in court in shackles or in jail clothes. (Estelle
v. Williams (1976) 425 U.S. 501, 512, 518-519; People v. Taylor (1982) 31 Cal.3d 488,
494; People v. Duran (1976) 16 Cal.3d 282, 288, fn. 5; People v. Bradford (1997) 15
Cal.4th 1229, 1336.) The courts reasoned in those cases that requiring a defendant to
wear jail clothes or handcuffs at trial constituted a constant reminder to the jury that the
defendant was in custody.
In Duran the court reasoned that shackling a defendant during his trial “is likely to
lead the jurors to infer that he is a violent person disposed to commit crimes of the type
alleged. [Citations.] The removal of physical restraints is also desirable to assure that
‘every defendant is . . . brought before the court with the appearance, dignity, and self-
respect of a free and innocent man.’ [Citations.]” (People v. Duran (1976) 16 Cal.3d
282, 290.) The Duran court added that physical restraints should be used only as a last

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resort during a trial because shackling a defendant is an affront to the dignity and
decorum of judicial proceedings. (Ibid.)
The instant case is not analogous in that defendant was not required to appear in
front of the jury in jail garb or handcuffs throughout the trial.
Here, showing the photograph of defendant handcuffed during his arrest did not
establish that defendant was violent nor was the photograph a constant reminder to the
jury that defendant was a dangerous, violent individual. Furthermore, admitting the
photograph into evidence did not affront the dignity and decorum of the judicial
proceedings. It is commonly known that a defendant tried for a crime is oftentimes
handcuffed at the time of his arrest regardless of whether he is violent or dangerous and
the fact an individual is handcuffed is not evidence of guilt.
Defendant argues that the photograph constituted unnecessary cumulative
evidence that should have been excluded since there was less prejudicial evidence
available establishing that defendant had blood on his hands. Officers Outlaw and
Combado testified defendant had blood on his hands. Nevertheless, the court was not
required to exclude the photographic evidence since it provided probative evidence and
corroborated the officers’ testimony. (People v. Sims (1993) 5 Cal.4th 405, 452; People
v. Price (1991) 1 Cal.4th 324, 441.) The trial court had broad discretion in determining
the admissibility of the photograph and there was no abuse of discretion in admitting it
into evidence.

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4. Cautionary Instruction
Defendant contends the trial court committed reversible error in failing to instruct
the jury sua sponte to disregard that the photograph showed defendant handcuffed at the
time of his arrest. We conclude there was no instructional error.
Defendant relies on People v. Duran, supra, 16 Cal.3d at pages 291-292, in which
the California Supreme Court held that, when a defendant is tried in visible restraints, the
court has a sua sponte duty to instruct the jury that the restraints have no bearing on the
determination of the defendant’s guilt. Defendant argues that this instruction is also
required when the jury is shown a photograph of the defendant in handcuffs. We
disagree. The circumstances in Duran are not analogous to those in the instant case.
Here, defendant was not in restraints at trial and the photograph showed him
handcuffed only at the time of his arrest, which is generally known to occur regardless of
whether a suspect is violent. Because of the benign nature of the photograph, there was
no requirement the court sua sponte instruct the jury to disregard the fact the photograph
showed defendant handcuffed during his arrest. A photograph of defendant in handcuffs
at the time of arrest is by no means analogous to shackling a defendant throughout the
defendant’s trial. The trial court thus was not required sua sponte to instruct the jury to
disregard that defendant was handcuffed when arrested.
5. Blakely Error
Defendant contends that his upper-term sentence for assault, which was based on
factors that were neither tried nor found true by a jury, violated his Sixth Amendment

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right to a jury trial and Fourteenth Amendment due process right to a verdict based on
proof beyond a reasonable doubt.
While this appeal was pending, defendant obtained leave of this court to file a
supplemental brief alleging sentencing error based on Blakely v. Washington (2004) ___
U.S. ____, 124 S.Ct. 2531. Defendant contends the trial court violated Blakely by
imposing an upper-term sentence for his assault conviction. The People filed a
supplemental response, and both parties waived oral argument.
A. Waiver
The People argue that defendant forfeited his Blakely sentencing objection by
failing to raise it in the trial court during sentencing. We find no waiver or forfeiture for
the reasons succinctly stated in People v. Butler (2004) __ Cal.App.4th __ [2004 WL
2153559, *12]: “Because of the constitutional implications of the error at issue, we
question whether the forfeiture doctrine applies at all. (See People v. Vera (1997) 15
Cal.4th 269, 276-277 [claims asserting deprivation of certain fundamental, constitutional
rights not forfeited by failure to object].) Furthermore, there is a general exception to this
rule where an objection would have been futile. [Citation.] We have no doubt that, at the
time of the sentencing hearing in this case, an objection that the jury rather than the trial
court must find aggravating facts would have been futile. (See Pen. Code, § 1170, subd.
(b); rules 4.409 & 4.420-4.421.) In any event, we have discretion to consider issues that
have not been formally preserved for review. [Citation.] Since the purpose of the
forfeiture doctrine is to ‘encourage a defendant to bring any errors to the trial court’s
attention so the court may correct or avoid the errors,’ [citation], we find it particularly

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inappropriate to invoke that doctrine here in light of the fact that Blakely was decided
after Butler was sentenced.” (See also People v. George (2004) __ Cal.App.4th __ [18
Cal.Rptr.3d 651, 654] and People v. Barnes (2004) __ Cal.App.4th __ [2004 WL
2137361, *19]; People v. Lemus 2004 WL 2093427, *1.)
Here, also, Blakely was decided after defendant was sentenced. There was thus no
waiver of defendant’s Blakely objection.
B. Application of Blakely
Relying on Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the United States
Supreme Court in Blakely v. Washington (2004) ___ U.S. ___, [124 S.Ct. 2531, 2537],
held that sentencing factors, other than a prior conviction, that increased a sentence for a
crime beyond the prescribed statutory maximum must be submitted to a jury and proved
beyond a reasonable doubt.
The Blakely court defined the term “statutory maximum” as the maximum
sentence imposed based on the facts specifically found by the jury or admitted by the
defendant. (Blakely, supra, ___ U.S. at p. ___, [124 S.Ct. at p. 2537].) The Blakely court
explained that “the relevant ‘statutory maximum’ is not the maximum sentence a judge
may impose after finding additional facts, but the maximum he may impose without any
additional findings. When a judge inflicts punishment that the jury’s verdict alone does
not allow, the jury has not found all the facts ‘which the law makes essential to the
punishment,’ [citation], and the judge exceeds his proper authority.” (Blakely, supra, ___
U.S. at p. ___, [124 S.Ct. at p. 2537].)

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Whether Blakely precludes the sentencing judge from making the required
findings on aggravating factors supporting an upper-term sentence is an issue under
review by the California Supreme Court in People v. Towne, review granted July 14,
2004, S125677. In the meantime, we follow recent case law holding that Blakely requires
a jury determination of aggravating factors, other than those arising out of a prior
conviction. (People v. Barnes, supra, __ Cal.App.4th at p. ___ [2004 WL 2137361, *20];
People v. Lemus, supra, ___ Cal.Rptr.3d at p. ___; People v. George, supra, __
Cal.App.4th at p. __ [18 Cal.Rptr.3d 651, 655]; People v. Butler, supra, __ Cal.App.4th
at p. __ [2004 WL 2153559, *12].)
In the instant case, the trial court imposed an upper-term sentence of four years for
defendant’s assault conviction, plus two years for his two prison priors. Citing California
Rules of Court, rule 4.421, which enumerates various aggravating factors, the trial court
imposed the upper term based on the following five aggravating factors: (1) the crime
involved GBI, (2) defendant engaged in violent conduct which indicates a serious danger
to society, (3) defendant’s prior convictions are numerous and of increasing seriousness,
(4) defendant was on parole when the crime was committed, and (5) defendant’s prior
performance on probation or parole was unsatisfactory. The sentencing judge did not
find any mitigating factors.
We conclude that the trial court violated Blakely by relying on the first two factors
listed above to impose the upper term for defendant’s assault conviction. As to the GBI
factor, the jury found the special GBI allegation was not true. (§ 12022.7, subd. (a).)

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Under Blakely, the trial court’s reliance on that factor was improper since the jury
rejected the GBI allegation.
The second aggravated factor, that defendant engaged in violent conduct
indicating a serious danger to society, also required a jury finding under Blakely. Since
there was no such finding, the trial court erred in relying on this factor.
As to the three remaining aggravating factors, we conclude a jury finding was not
required since they fall within the prior conviction exception mentioned in Blakely.
Those three recidivism factors are: (1) defendant’s prior convictions are numerous and of
increasing seriousness, (2) defendant was on parole when the crime was committed, and
(3) defendant’s prior performance on probation or parole was unsatisfactory.
Although these three factors are not based solely on defendant’s prior convictions,
as explained in People v. George, supra, 18 Cal.Rptr.3d 651, this does not preclude them
from falling within the prior conviction exception. In applying Blakely to the defendant’s
aggravated sentence in George, the court concluded a jury finding was not required as to
the aggravating factor that the defendant was on probation at the time of the charged
offense. The George court reasoned that, “Because this fact arises out of the fact of a
prior conviction and is so essentially analogous to the fact of a prior conviction, we
conclude that constitutional considerations do not require that matter to be tried to a jury
and found beyond a reasonable doubt. As with a prior conviction, the fact of the
defendant’s status as a probationer arises out of a prior conviction in which a trier of fact
found (or the defendant admitted) the defendant’s guilt as to the prior offense.
[Citations.] As with a prior conviction, a probationer’s status can be established by a

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review of the court records relating to the prior offense. Further, like a prior conviction,
the defendant's status as a probationer ‘does not [in any way] relate to the commission of
the offense, but goes to the punishment only . . . .’ (Almendarez-Torres v. U.S. (1998)
523 U.S. 224, 244, italics in original.) Thus, in accordance with the analysis of Blakely,
the trial court was not required to afford George the right to a jury trial before relying on
his status as a probationer at the time of the current offense as an aggravating factor
supporting the imposition of the upper term.” (George, supra, __ Cal.App.4th at p. ___
[18 Cal.Rptr.3d 651, 656].) Likewise, in the instant case, a jury finding was not required
as to the aggravating factor that defendant was on parole when he committed the assault.
Although the court in George assumed the aggravating factor, that defendant’s
unsatisfactory probation or parole performance, required a jury finding, the court did not
address the matter. We conclude, however, this factor, as well as the other two
recidivism factors, falls within the prior conviction exception based on the reasoning
stated above in George. Since defendant’s three recidivism factors are premised on
defendant’s prior convictions and verifiable by means of the court record, which includes
defendant’s criminal history, a jury trial is not required as to these three factors.
(Almendarez-Torres v. U.S. (1998) 523 U.S. 224, 246; People v. Thomas (2001) 91
Cal.App.4th 212, 216-223; People v. George, supra, __ Cal.App.4th at p. __ [18
Cal.Rptr.3d 651, 656]; People v. Butler, supra, __ Cal.App.4th at p. __ [2004 WL
2153559, *13].)

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C. Prejudicial Error
Although under Blakely the trial court erred in relying on the two “non-recidivist”
factors to impose an aggravated sentence for defendant’s assault conviction, such error is
not reversible per se. We must determine whether there was harmless error.
As concluded in Butler, the Chapman error analysis applies as to whether the jury
would have made the two “non-recidivist” findings: (1) the crime involved GBI and (2)
defendant engaged in violent conduct which indicates a serious danger to society. The
Butler court explained: “Since the Blakely court rested its holding on Apprendi, we apply
the standard of prejudice applicable to Apprendi errors which is the ‘Chapman test.’
[Citation.] Applying that test, we must determine whether the failure to obtain jury
determinations as to the aggravating factors discussed above was harmless beyond a
reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)” (People v. Butler,
supra, __ Cal.App.4th at p. __ [2004 WL 2153559, *12].)
Certainly, in the instant case, as to the first non-recidivism factor, the jury, in fact,
did reject the finding of GBI. As to the second factor, we do not find that, beyond a
reasonable doubt, a jury would have found defendant’s assault on his brother indicated he
was a danger to society.
Next we must determine whether the trial court would have imposed the
aggravated sentence even in the absence of these two factors. As explained in Butler, in
making this determination, we apply the Watson harmless error test: “Although Blakely
error is evaluated under the Chapman test, under California law, ‘[w]hen a trial court has
given both proper and improper reasons for a sentence choice, a reviewing court will set

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aside the sentence only if it is reasonably probable that the trial court would have chosen
the lesser sentence had it known that some of its reasons were improper.’ [Citations.]”
(People v. Butler, supra, __ Cal.App.4th at p. __ [2004 WL 2153559, *13].) A single
aggravating factor is sufficient to support an upper-term sentence. (People v. Osband
(1996) 13 Cal.4th 622, 728; People v. Butler, supra, __ Cal.App.4th at p. __ [2004 WL
2153559, *13].)
Applying the Watson harmless error standard, we cannot say it is reasonably
probable that, had the court not relied on the GBI and serious danger to society factors,
the court would have imposed the upper term, rather than the middle term, based solely
on the recidivism factors. Although in Butler the court found that the trial court’s
improper reliance on four out of the five aggravating factors was harmless error, Butler is
distinguishable. In Butler, the trial court expressed its intent to impose the upper term
even if only one aggravating factor was proper. Here, the trial court did not make such a
statement and we cannot assume it. We thus cannot say it is reasonably probable the trial
court would have imposed the upper term, as opposed to the middle term, based on
defendant’s recidivism factors.
6. Disposition
The judgment is affirmed in part and reversed in part. Defendant’s assault
conviction is affirmed and his sentence is reversed. The matter is remanded solely for

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resentencing to enable the trial court to exercise its discretion in determining whether to
impose an aggravated sentence based on proper aggravating factors.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Gaut
J.
I concur:
s/Ward
J.

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HOLLENHORST, J.
I dissent from part 5. of the opinion and from the partial reversal.
In People v. Wagener (Oct. 22, 2004, D042896) __ Cal.App.4th __ [2004 WL
2368025], Division One of this court held that “California’s sentencing scheme is
consistent with and does not offend the constitutional concerns addressed in Apprendi [v.
New Jersey (2000) 530 U.S. 466, 483 [120 S.Ct. 2348]] and its progeny, Blakely [v.
Washington (2004) 542 U.S. __ [124 S.Ct. 2531]].” (Id. at __ [2004 WL 2368025, at
*__, fn. omitted].) Thus, the court held, California’s sentencing scheme, unlike
Washington State’s that was under review in Blakely, does not require jury findings of
aggravating factors before the defendant may be sentenced to the upper term for an
offense.
I find the reasoning and conclusion of the majority in Wagener compelling, and I
would adopt that position to affirm the conviction. I therefore dissent in part.
HOLLENHORST
Acting P. J.

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