Velasquez

Certified for Partial Publication. [*]

Cesar Velasquez appeals from the judgment entered after a jury convicted him of 10 offenses ranging from petty theft to attempted murder that was willful, deliberate and premeditated. In our original opinion, filed February 16, 2005, we affirmed Velasquez's convictions on all counts but reversed the sentence imposed on count 3 for assault with a firearm and the enhancement related to that count and remanded for resentencing consistent with our understanding of the constitutional requirements for trial by jury articulated in Blakely v. Washington (2004) 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 ( Blakely ). We also directed the trial court on remand to strike the firearm enhancements under Penal Code section 12021.5, subdivision (a), [1] imposed on counts 5,10 and 12.

On June 8, 2005 the California Supreme Court granted the People's petition for review (S132402, petition for review filed March 21, 2005) and deferred further action in the matter pending consideration and disposition of a related issue in People v. Black (S126182, review granted July 28, 2004) and People v. Towne (S125677, review granted July 14, 2004). On…

*1506 Opinion

Cesar Velasquez appeals from the judgment entered after a jury convicted him of 10 offenses ranging from petty theft to attempted murder that was willful, deliberate and premeditated. In our original nonpublished opinion, filed February 16, 2005, we affirmed Velasquez’s convictions on all counts but reversed the sentence imposed on count 3 for assault with a firearm and the enhancement related to that count and remanded for resentencing consistent with our understanding of the constitutional requirements for trial by jury articulated in Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403 , 124 S.Ct. 2531 ] {Blakely). We also directed the trial court on remand to strike the firearm enhancements under Penal Code section 12021.5, subdivision (a), 1 imposed on counts 5, 10 and 12.

On June 8, 2005 the California Supreme Court granted the People’s petition for review (SI32402, petn. for review filed Mar. 21, 2005) and deferred further action in the matter pending consideration and disposition of a related issue in People v. Black (2005) 35 Cal.4th 1238 [ 29 Cal.Rptr.3d 740 , 113 P.3d 534 ] {Black) and People v. Towne, review granted July 14, 2004, S125677. On…

I concur in all portions of the majority opinion, with the exception of part 3b. of that opinion which upholds imposition of upper term sentences despite the U.S. Supreme Court’s opinion in Cunningham v. California 1 I do so for reasons recited previously in both majority and dissenting opinions and repeat here only because the California Supreme Court already has or is likely to grant review, as it appears to have done in all Cunningham cases.

In my view, on this record we cannot conclude the trial court would have imposed the high terms on each and all of these counts based solely on its *1518 assumed, findings appellant had served a prior prison term and had “numerous” convictions. Indeed, because the trial court failed to put its findings on the record, we have to speculate whether it would have made those findings and also whether it would have considered them worthy of mention to say nothing of determinative of its decision to impose the high term sentences on these counts.

For purposes of this dissent, I accept the test the California Supreme Court announced in People v. Avalos. 2 That is, in reviewing a sentence based on both proper and improper aggravating factors we…