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P. v. Carruth
P. v. Carruth
08/10/06

P. v. Carruth



Filed 8/9/06 P. v. Carruth CA2/5






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS







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 This opinion has not been certified for publication or ordered published for purposes of rule 977.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION FIVE










THE PEOPLE,


Plaintiff and Respondent,


v.


LEV CARRUTH,


Defendant and Appellant.



B184263


(Los Angeles County


Super. Ct. No. MA028840)



APPEAL from a judgment of the Los Angeles County Superior Court, Thomas R. White, Judge. Affirmed.


Marilee Marshall & Associates, Inc., Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.


Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Jonathan J. Kline, Deputy Attorney General, for Plaintiff and Respondent.


INTRODUCTION


A jury convicted defendant and appellant Lev Carruth (defendant) of inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)[1]). The jury found defendant not guilty of discharging a firearm with gross negligence (§ 246.3) and the trial court declared a mistrial on a charge of assault with a semiautomatic firearm (§ 245, subd. (b)) after finding the jury hopelessly deadlocked. The trial court sentenced defendant to the middle term of three years in state prison.


On appeal, defendant contends that the trial court abused its discretion in denying his motion to reduce his conviction of inflicting corporal injury on a cohabitant to a misdemeanor. Defendant also contends that the trial court violated his state and federal constitutional rights to a jury trial and due process by relying on facts found not true by the jury to deny him probation and sentence him to state prison. We affirm the judgment.


BACKGROUND


Gilda Brown and defendant began dating in 1994. In 1999, they moved into a house at 1815 Hart Street in Lancaster. In 2003, defendant, a truck driver, moved to Arkansas because that was â€

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