P. v. ODell
A jury convicted defendant Mark ODell of corporal injury to a former cohabitant, Terri Lynn Lapado (count 2; Pen. Code, 273.5, subd. (a); undesignated statutory references are to the Penal Code) and found as to that count that he personally inflicted great bodily injury ( 12022.7, subd. (e)). The jury also convicted him of assault by means likely to produce great bodily injury on Alia Espy (count 3; 245, subd. (a)(1)) and making criminal threats (count 4; 422).
Sentenced to a total state prison term of nine years (the upper term of four years on count 2, plus three years for the enhancement, plus one year (one third the midterm) on count 3, plus eight months (one third the midterm) on count 4), defendant contends: (1) The judgment must be reversed because the trial court failed to suspend proceedings before trial and obtain an evaluation of defendants competency to proceed. ( 1368.) (2) The trial court violated defendants due process rights by refusing to appoint counsel at defendants request on the day of trial, given the substantial evidence of his incompetency. (3) The upper-term sentence on count 2 is unconstitutional under Cunningham v. California (2007) 549 U.S.[127 S.Ct. 856; 166 L.Ed.2d 856] (Cunningham). Agreeing only with the last contention, Court affirm defendants convictions, vacate the sentence on count 2, and remand to the trial court for further proceedings.
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