P. v. Garcia
Defendant appeals a judgment after jury trial, following his conviction of making criminal threats (Pen. Code, 422),corporal injury to a child's parent ( 273.5, subd. (a)), forcible oral copulation ( 288a, subd. (c)(2)), sexual battery by restraint ( 243.4, subd. (a)), and forcible rape ( 261, subd. (a)(2)). The court imposed an aggregate state prison term of 24 years and 8 months, which included an upper term sentence of 8 years for the forcible oral copulation count, and the upper term of 8 years for the forcible rape count. The court ruled that those sentences run consecutively.
Court conclude the trial court did not err by imposing consecutive sentences for Garcia's convictions of forcible oral copulation and forcible rape, but it exceeded its jurisdiction by imposing the upper term for the rape conviction by relying on sentencing factors which were not tried by a jury. Court vacate the sentence and remand for resentencing, but otherwise affirm.
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