P. v. Lockman
A jury convicted Defendant of two counts of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1); counts 1 & 5), vandalism over $400 ( 594, subd. (a)(b)(1); count 2), hit and run (Veh. Code, 20002, subd. (a); count 3), and two counts of reckless driving (Veh. Code, 23103, subd. (a); counts 4 & 6). The jury also found true allegations as to counts 1 and 5 that Lockman had personally used a deadly weapon in those crimes ( 1192.7, subd. (c)(23)). Lockman then admitted allegations he had previously suffered a prior conviction for a serious or violent felony ( 667, subd. (a)(1), 668, 1192.7, subd. (c)), which also constituted a strike under the Three Strikes law ( 667, subd. (b)-(i); 1170.12). After denying Lockman's motion for a new trial and granting his motion to strike his prior strike, the trial court sentenced Lockman to prison for a total of 10 years, consisting of an upper four year term for the count 1 assault with a deadly weapon, one year consecutive for the count 5 deadly weapon assault (one-third the midterm), plus five years for the serious prior.
Defendant appealed, contending there was insufficient evidence to support his count 5 assault with a deadly weapon conviction, the trial court abused its discretion in denying his new trial motion directed to count 5 based on modifying a previously submitted jury instruction at the People's request after the jury had already been instructed, and he was denied a fair trial by the jurors being given a transcript of a 911 call containing a prejudicial statement, which the trial court had ordered redacted before the playing of the call. Subsequent to the filing of his opening brief, the United States Supreme Court in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham) determined that California's Determinate Sentencing Law (DSL), which permits a court to impose an upper term sentence based on aggravating facts not found true by a jury or beyond a reasonable doubt, is unconstitutional and violates the holdings in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and United States v. Booker (2005) 543 U.S. 220 (Booker). Defendant has filed a supplemental brief claiming the imposition of his upper term sentence for count 1 is unconstitutional under Cunningham. Court affirm Defendant's convictions and sentence.
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