MAXIMUM SENTENCE AFFIRMED IN CALIFORNIA DUI HOMICIDE OVER CUNNINGHAM OBJECTION
Note: This is another Unpublished opinion showing the insurmountable obstacles DUI defendants must rise above to gain some justice.
Defendant John Randolph Shanks entered a negotiated plea of no contest to evading a pursuing peace officer, a felony (California Vehcile Code §2800.2), and driving under the influence of alcohol and/or drugs, a misdemeanor (VC §23152(a)).
In exchange for the pleas and a Harvey waiver (People v. Harvey (1979) 25 C3d 754), another count and a prior prison term allegation were dismissed.
The trial court sentenced defendant to the upper term of three years in state prison for evading a pursuing peace office and a concurrent term of six months in jail for driving under
the influence of alcohol and/or drugs.
On appeal, defendant contends that the upper term sentence contravenes the holding of Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (hereafter Cunningham). Defendant acknowledges that we are bound by the California Supreme Court’s holding in People v. Black (2007) 41 Cal.4th 799 (hereafter Black II) but raises the issue to preserve it for federal court review.
We shall affirm the judgment.
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Here, in imposing the upper term, the trial court found in aggravation that (1) defendant’s prior convictions were numerous, (2) he had served prior prison terms, (3) he was on parole at the
time of the offense, and (4) his prior performance on probation or parole was unsatisfactory. In mitigation, the court found that “defendant acknowledged guilt early on and that the defendant
suffered from mental illness and drug and alcohol addiction in the past.”
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