P. v. Castaneda
Abel Castaneda appeals from his conviction on charges of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1))[1], which was found to be a hate crime committed wholly or partially because of the victims race or ethnicity ( 422.55 and 422.75, subd. (a)); and of making a criminal threat ( 422). Castaneda admitted he had three prior felony convictions within the meaning of section 667.5, subdivision (b). He was sentenced to the upper term of four years on the assault charge, plus a three year enhancement for the hate crime. He was also sentenced to the midterm of two years, concurrent, for the criminal threat, and his sentence was enhanced an additional year for each of the three priors.
Finally, although Castaneda correctly predicted that our Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238, would be disapproved by the United States Supreme Court in Cunningham v. California (2007) U.S. [127 S.Ct. 856], we nonetheless conclude the trial court could properly sentence him to the upper term for the assault charge, based upon his history of recidivism. The judgment is affirmed.
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