P. v. Fullbright
In June 2005 a jury found Norman Lionel Fullbright guilty of first degree murder (Pen. Code,[1] 187, subd. (a); count 1), possession of forged items ( 475, subd. (a); count 2), resisting a peace officer ( 148, subd. (a)(1); count 3), and three counts of battery on a peace officer ( 243, subd. (b); counts 4-6). On the count 1 murder charge the jury also found that Fullbright personally and intentionally discharged a shotgun within the meaning of section 12022.53, subdivision (d). The court sentenced Fullbright to a prison term of 50 years to life, plus three years, consisting of a term of 25 years to life on count 1, a consecutive 25 year-to-life term for the personal use of a shotgun allegation, and an upper term of three years on count 2.
On appeal Fullbright asserts that (1) the court erred under Crawford v. Washington (2004) 541 U.S. 36 (Crawford) by admitting an affidavit the victim gave to police describing a previous domestic violence assault Fullbright committed against the victim as it violated his Sixth Amendment right to confront witnesses; (2) the court erred in instructing the jury under CALJIC No. 4.51; (3) the court erred by refusing to sever the resisting arrest and battery upon a peace officer counts; (4) the prosecutor committed prejudicial misconduct by speculating as to what the victim would have said if she had testified; and (5) under Cunningham v. California (2007) U.S. [127 S.Ct. 856] (Cunningham), he was entitled to a jury trial on the factors used by the court to impose the upper term on count 2.
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