P. v. Romero
In October 2004, appellant, Israel Romero, pled no contest to felony possession of PCP (Health & Saf. Code, 11377, subd. (a)), and admitted allegations that he had (1) suffered a strike and (2) served a prison term for a prior felony conviction (Pen. Code, 667.5, subd. (b)). In January 2005, the court struck the strike and placed appellant on probation. In May 2006, appellant suffered a conviction of misdemeanor driving a motor vehicle while under the influence of alcohol or drugs (Veh. Code, 23152, subd. (a)), and based on that conviction, and on appellants admission of an allegation that he violated his probation by not remaining in contact with the probation department, the court denied reinstatement on probation and imposed a prison term of three years. At sentencing, the court also stated, Ill lift the stay on the 1202.44 fine of $200, given the violation and the state prison sentence.
Court turn now to an issue not raised by the parties, viz., whether the imposition of an upper term based on circumstances in aggravation not found by a jury beyond a reasonable doubt violates a defendants constitutional right to trial by jury. Court deem it appropriate to address this issue because (1) it has been the subject of recent decisions by both the United States and California Supreme Courts; (2) this court, by its order of February 16, 2007, deemed this issue raised without further briefing; and (3) the court in the instant case imposed an upper term sentence based on factors in aggravation found not by the jury, but by the court. The superior court is directed to issue an amended abstract of judgment which omits all reference to a fine under section 1202.44. In all other respects, the judgment is affirmed.
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