P. v. Gebhardt
A jury convicted defendant of driving under the influence, causing injury (Veh. Code, 23153, subd. (a)), driving with a blood alcohol level of 0.08 percent or greater (Veh. Code, 23153, subd. (b)) and leaving the scene of an accident (Veh. Code, 20001, subd. (a)), during all of which he inflicted great bodily injury on the victim. (Pen. Code, 12022.7, subd. (a).) In bifurcated proceedings, he admitted suffering two felony convictions for which he served prison terms (Pen. Code, 667.5, subd. (b)) and the trial court found that he suffered a third.[1] He was sentenced to prison for 17 years 4 months, and appeals, claiming the trial court erred in allowing him to represent himself, in excluding evidence and in sentencing him. After the case was fully briefed, the United States Supreme Court decided Cunningham v. California (Jan. 22, 2007, No. 05-6551) U.S. [2007 D.A.R. 1003]. Therein, the court held that the California determinate sentencing law violates a defendants Sixth and Fourteenth Amendment rights to trial by jury by allowing the trial court to impose the upper term based on facts found by it, applying a preponderance of the evidence standard.
Under the compulsion of Cunningham, Court reverse the sentence for count 1 and remand the matter to the trial court to permit the People to have an opportunity to present what they believe are factors justifying the imposition of an upper term to a jury. In the event they opt not to do so, or if a jury does not find such factors, the trial court shall resentence defendant, imposing either the mid or low term for driving while under the influence, causing injury (count 1).
Court reject defendants remaining contentions and affirm his convictions and sentences on counts 2 and 3 and the prior convictions/prison enhancments.
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