In Re Consiglio

In this case, we reject petitioner’s contention the United States Supreme Court’s decision in Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403 , 124 S.Ct. 2531 ] (Blakely) applies retroactively to cases that were final when the decision was issued. We also reject petitioner’s contention the sentencing judge did not realize he had discretion to sentence concurrently.

BACKGROUND

In Blakely , the United States Supreme Court held any fact (other than the fact of a prior conviction) that increases the punishment for a crime beyond the “statutory maximum” must be found by a jury, rather than a sentencing judge. (Blakely, supra, 542 U.S. at p. 303 [ 124 S.Ct. at p. 2537 ].) California's sentencing scheme permits a court to impose an upper term sentence if a judge finds the aggravating factors outweigh the mitigating factors and to impose consecutive sentences based on facts not necessarily found by a jury. (Pen. Code, §§ 1170, subd. (b), 669.) Petitioner states he is serving a 33-year prison term that includes both upper terms and consecutive sentences.

DISCUSSION

I

Retroactivity of Blakely

When a decision of the United States Supreme Court results in a “ ‘new…