People v. Ortiz-Sanchez CA3

BACKGROUND

A. Pretrial proceedings The People’s complaint charged defendant with a single count of involuntary manslaughter (§ 192, subd. (b)). The People later moved to amend the complaint to allege that if defendant were found guilty of involuntary manslaughter, it would be considered a serious felony (§ 1192.7, subd. (c)(23)), a violent felony (§ 667.5, subd. (c)(8)), that defendant would be presumptively ineligible for probation (§ 1203, subd. (e)(2)), and for a local prison commitment (§ 1170, subds. (f), (h)(3)). Defendant opposed the motion, arguing the “intentional use” required for conduct falling under section 1192.7, subdivision (c)(23)3 would be inconsistent with the charge of involuntary

We nonetheless note that should the trial court determine that defendant used a gun within the meaning of section 1203, subdivision (e)(2), and elects to reimpose the upper term of four years, the court also should clarify whether its lack of candor determination included a finding that defendant actually committed perjury or was based on his refusal to accept responsibility for his actions. (See People v. Howard (1993) 17 Cal.App.4th 999, 1003-1005 [federal Constitution…