PEOPLE v. DIAZ Part II
Appellate challenge to sentence as being based on judicial factfinding in violation of federal constitutional right to jury trial was not waived by lack of objection in trial court, where such objection would have been futile according to then-controlling California Supreme Court precedent and challenge would not have been viable but for subsequent U.S. Supreme Court ruling. Jury's implicit determination that victim was incapable of resisting defendant's sexual advances due to intoxication or influence of a controlled substance could not be used both to find the defendant guilty of specific sexual offenses having use of intoxication, anesthesia or a controlled substance as an element and to find that defendant was "particularly vulnerable" for sentencing purposes. Judicial determination that crimes involved "great violence" and involved "great danger to society" because victim was forced into sex did not support upper term because such factors were inherent in the crimes themselves. Imposition of upper term based on aggravating factors that might not have been found by reasonable jury was prejudicial. Imposition of consecutive sentences based on judge's finding that violent sex crimes were committed on separate occasions did not violate right to trial by jury where judge had discretion to impose such sentences regardless of any judicial factfinding. Where upper term sentence was reversed as violating right to trial by jury, and trial court lacked discretion to impose upper term on remand because no aggravating factors were admitted by defendant or found true by the jury beyond a reasonable doubt, nor did defendant have any prior convictions, trial court was required on remand to impose middle-term sentence.
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