People v. Zamora-Canada CA3

Filed 1/27/25 P. v. Zamora-Canada CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C099995

Plaintiff and Respondent, (Super. Ct. No. 16FE021333)

v.

GERMAN ZAMORA-CANADA,

Defendant and Appellant.

Defendant contends the trial court erred by selecting an upper term sentence for his attempted murder conviction based on aggravating facts that were not proven to a jury, in violation of Penal Code1 section 1170, subdivision (b)(2) and the Sixth Amendment to the United States Constitution. Defendant has not disputed the truth of any of these aggravating facts, which were proven by certified records from the

1 Undesignated statutory references are to the Penal Code.

1

Department of Corrections and Rehabilitation. Accordingly, we “conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify [the] upper term sentence.” (People v. Lynch (2024) 16 Cal.5th 730, 768.) Hence, the error was harmless and we affirm. FACTUAL AND PROCEDURAL BACKGROUND In 2019, a jury found defendant guilty of second degree murder, attempted murder, and possessing a firearm having been convicted of a felony. The jury also found true allegations that defendant personally and intentionally discharged a firearm causing great bodily injury in the commission of the murder and the attempted murder. In a bifurcated proceeding, the trial court found that defendant was previously convicted of assault with a firearm and robbery, both of which are serious felonies within the meaning of the “Three Strikes” law. The trial court originally sentenced defendant to a determinate term of 19 years four months and an indeterminate term of 80 years to life in prison. On appeal, this court affirmed defendant’s convictions but vacated his sentence and remanded for resentencing. (People v. Zamora-Canada (Nov. 18, 2022, C090890) [nonpub. opn.].) On remand, defendant filed a brief arguing the trial court could no longer select an upper term sentence for attempted murder because no aggravating circumstances had been proven in accordance with the recently amended sentencing statute. The prosecution argued that the trial court could consider aggravating facts in defendant’s criminal history, which could be proven by certified records, to impose an upper term sentence in compliance with the statute and therefore the Sixth Amendment to the United States Constitution. At the resentencing hearing, the trial court denied defendant’s requests to strike the prior serious felony convictions and the firearm enhancements. The prosecution asked the court to impose an upper term sentence for attempted murder. The parties then discussed how the prosecution could prove the aggravating facts needed to impose the