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People v. Bartow6/28/1996
ANDERSON, P. J.
Rodney J. Bartow (appellant) was found guilty by jury of the following offenses: (1) driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)); (2) driving under the influence of an alcoholic beverage with a blood-alcohol level of .08 percent or above (Veh. Code, § 23152, subd. (b)); and (3) hit-and-run driving, a misdemeanor (Veh. Code, § 20002, subd. (a)). In the second phase of a bifurcated trial the jury also found the following prior convictions true: (1) reckless driving involving alcohol (Veh. Code, § 23103.5); and (2) willful discharge of a firearm with gross negligence in which the appellant personally used a firearm in the commission of that offense (Pen. Code, § 246.3). The latter section 246.3 allegation was also found by the court to be a prior "serious felony" conviction within the meaning of sections 667 and 1192.7, subdivision (c)(8).
Appellant was sentenced to state prison for four years as follows: two years for the first driving under the influence conviction, doubled to four years pursuant to section 667, subdivision (e)(1), six months for the hit-andrun driving conviction, to be served concurrently, and an additional two years for the other driving under the influence violation, which was stayed.
I. FACTS AND PROCEDURAL BACKGROUND
A. The Present Conviction
Appellant, driving with a blood-alcohol level of 0.19 percent, backed into a car in a parking lot. He left hurriedly, causing two bystanders to jump aside to avoid being hit. Appellant accelerated down the street, attempted to turn a corner at more than 50 miles per hour, lost control and spun broadside into a truck, knocking it into a building. His passenger, his wife, was injured.
B. The Prior Conviction
The prosecution alleged that appellant's conduct in violating section 246.3 included the "personal use" of a firearm, even though the definition of that offense does not explicitly contain a "personal use" element. Appellant claimed, on the other hand, that neither the language of his plea nor the actual facts of commission of the offense support a finding of personal use of a firearm. He was originally tried by jury for this offense after having been held to answer following a preliminary hearing. At that trial his companion apparently testified that it was she who fired the gun; that jury deadlocked and a mistrial was declared. Appellant had been in custody for almost one year when the mistrial occurred, and he then decided to plead nolo contendere to the charge.
The court herein initially informed the jury that the second phase of the trial required the same jury to "determine . . . the enhancement phase, as it is, of the allegations and in the information . . . by the evidence provided, the arguments made and the matter [will be] submitted to you."
Following a recess the court reconvened outside the presence of the jury and, without explanation, announced that "the matter would proceed on paper." The court then discussed how one proves "personal use of a firearm" within the meaning of section 1192.7, subdivision (c)(8). After citing People v. Guerrero (1988) 44 Cal. 3d 343 [243 Cal. Rptr. 688, 748 P.2d 1150], People v. Piper (1986) 42 Cal. 3d 471 [229 Cal. Rptr. 125, 722 P.2d 899], and People v. Gomez (1994) 24 Cal. App. 4th 22 [29 Cal. Rptr. 2d 94], the court determined "that there would be a limitation on the presentation of evidence to the record and that would be expended [ sic ] by Gomez. . . from Gu [ errero ] to include the preliminary hearing transcript."
At this juncture the court ruminated that although witnesses for both sides were ready to testi
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