P. v. Rupp
On a 100-degree day in August 2004, defendant William Matthew Rupp rode a power mower to trim weeds on his property in rural Shasta County. The resulting fire destroyed over 10,000 acres and 80 homes. A jury convicted defendant of unlawfully and recklessly causing a fire of a structure or forest (count 1; Pen. Code, 452, subd. (c)) and of negligently using a lawnmower and causing a fire, a misdemeanor (count 2; Pub. Resources Code, 4435). In a bifurcated proceeding, the trial court found the allegation true as to count 1 that defendant unlawfully and recklessly caused multiple structures to be burned ( 452.1, subd. (a)(4)). The court sentenced defendant to an aggregate state prison term of four years, consisting of two years (the midterm) on count 1 plus two years (also the midterm) on the enhancement. The record is silent as to the courts disposition of count 2, if any. Defendant contends: (1) The trial court prejudicially misinstructed the jury as to the presumption of negligence. (2) The trial court erred reversibly by [g]iving an [i]mpromptu [a]mplification of the [r]easonable [d]oubt [i]nstruction[.] (3) The trial courts imposition of an additional term based on an enhancement not tried to the jury is unconstitutional in light of Cunningham v. California (2007) 549 U.S.[166 L.Ed.2d 856] (Cunningham). Court reject these contentions and affirm the judgment. However, Court remand the matter to the trial court for resentencing as to count 2.
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