P. v. Knox
Defendant was charged together with codefendants James Knox (James) and Mark Booker with three counts of attempted murder (Pen. Code, 187, subd. (a)). With regard to each count, Knox was also alleged to have discharged a handgun which proximately caused great bodily injury to each victim ( 12022.53, subd. (d)). A jury found Defendant guilty of attempted voluntary manslaughter (Pen. Code, 664/192, subd. (a)), a lesser crime as to counts 1 and 2, and found him not guilty of the count 3 offense.
The trial court sentenced Knox to a total prison term of six years, six months, consisting of the upper term of five years, six months on count 1 plus a consecutive one-year middle term on count 2.
Defendant appeals, contending his convictions must be reversed because the trial court prejudicially erred when it required he be shackled during his jury trial, when it refused to allow him to introduce relevant character evidence for violence of the major prosecuting witness/victim, and when it refused to allow him to impeach that same witness with evidence of a recent uncharged stabbing. Defendant also claims the court's imposition of the upper term for count 1 violated his federal constitutional rights to proof beyond a reasonable doubt and jury trial under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and United States v. Booker (2005) 543 U.S. 220 (Booker) because the aggravating factors were not found true by a jury.
During the pendency of this appeal, the United States Supreme Court in Cunningham v. California (Jan. 22, 2007, No. 05-6551) 549 U.S. [2007 WL 135687] (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, supra, 542 U.S. 296, and Booker, supra, 543 U.S. 220. Although Court find no prejudicial error to reverse Defendant's convictions, Court reverse his sentence and remand for resentencing in light of Cunningham.
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