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People v. Harris8/10/2005
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant Richard Allen Harris was charged with gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) with an allegation that he fled the scene of the crime (Veh. Code, § 20001, subd. (c)), felony driving under the influence of alcohol (Veh. Code, § 23153, subd. (a)) with an allegation that he had previously been convicted of driving under the influence (Veh. Code, § 23540), hit and run resulting in death or injury (Veh. Code, § 20001), and misdemeanor driving on a suspended or revoked license for driving under the influence (Veh. Code, § 14601.2, subd. (a)). Defendant pled guilty to all the charges and admitted all the allegations. The trial court imposed an aggregate term of 15 years in state prison, including the upper term of 10 years for gross vehicular manslaughter. On appeal, defendant claims that imposition of the upper term violated the Sixth Amendment of the United States Constitution. We affirm.
BACKGROUND
On August 12, 2003, defendant was making a left turn from State Route 88 into his driveway when he hit an on-coming motorcyclist. Defendant abandoned his pickup truck and went to a nearby market, where he requested and received a ride from a friend to a different address. The motorcyclist died within 20 minutes of being transported to the hospital. Officers later found defendant asleep on a couch. Approximately five hours after the accident, a blood test revealed defendant had a blood alcohol content of .13 percent.
The criminal complaint was filed on August 14, 2003. The prosecution did not make a pretrial offer to reduce or dismiss charges or limit defendant's sentence in exchange for a plea. At the May 24, 2004, jury trial assignment proceedings, defense counsel indicated that defendant was deciding whether to enter guilty pleas and admit the enhancements. The trial court explained to defendant his two options, to enter a plea, obtain a presentence report and have a sentencing hearing, or go to trial and "see what happens after trial." The trial court also commented: "The Court does recognize an early consciousness of guilt; in other words, the earlier a case is resolved I can take that into consideration. But I don't want -- make sure you understand, I'm in no way telling you you're not entitled to a jury trial, `cause you are entitled to a jury trial. But the law also allows the judges to take into consideration if somebody steps forward and takes responsibilities for their acts at an earlier stage, I can consider that, and that's something that I would consider if you were willing to plea. But I certainly don't want to use that as hammer to discourage you from having your jury trial because you are entitled to that also. But those are decisions you have to make." The trial court warned defendant that the maximum sentence for the charged offenses was 15 years and that the prosecution was seeking that sentence.
After consulting with counsel, defendant pled guilty to all the charges and admitted all the enhancements. The presentence probation report noted defendant had three prior convictions for driving under the influence and was on active probation for at least one of them at the time of the current offense. Defendant had a total of one prior felony and seven prior misdemeanor convictions and two probation violations. The report listed the following factors in aggravation: the crime invol
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