Martinez

Defendant was convicted of torture, rape, assault and other crimes after a horrific three-day ordeal in which he repeatedly hit and kicked, tried to bum, and sexually assaulted his girlfriend. This court affirmed the judgment, which included a sentence of 54 years eight months to life, in People v. Martinez (2005) 125 Cal.App.4th 1035 [ 23 Cal.Rptr.3d 508 ] (Martinez). Defendant appeals from the denial of his motion for a “New Sentence.” He contends the trial court violated his Sixth Amendment right to trial by jury by imposing upper term and consecutive sentences based on factors not found by a jury. We find no error. Defendant had no right to a jury trial on the factors used to impose consecutive sentences and the trial court’s selection of the upper term on stayed counts is supported by at least one aggravating factor that the jury would have found hue beyond a reasonable doubt.

FACTUAL AND PROCEDURAL BACKGROUND

We take the facts of the offense from our prior opinion:

“A jury convicted defendant Kenneth Lee Martinez of torture (count 1; Pen. Code, § 206; undesignated section references are to the Penal Code); five counts of assault by means of force likely to…