P. v. Rivera
Jesus Rivera appeals from his conviction of attempted murder, assault with a firearm, and shooting from a motor vehicle. He argues that his conviction for assault with a firearm should be reversed because that crime is a lesser included offense to the offense charged in count 3, discharging a firearm from a motor vehicle, and to the offense charged in count 1, attempted murder. Appellant also argues that the imposition of the upper terms on counts 2 and 3 and the enhancement on count 2 violated his right to jury trial under Blakely v. Washington (2004) 542 U.S. 296. Court find merit in appellants argument that assault is a lesser included offense to discharging a firearm from a motor vehicle, but conclude that it is not a lesser included offense to attempted murder as charged. Court also conclude that any error in the imposition of the upper terms on counts 2 and 3 and the enhancement was harmless beyond a reasonable doubt in light of the factors relating to appellants recidivism, as to which there is no right to jury trial.
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