P. v. Garibay
A jury convicted Ana M. Garibay of two counts of gross vehicular manslaughter while intoxicated (Pen. Code, 191.5, subd. (a)) and one count of hit and run with injury (Veh. Code, 20001, subd. (a)). The jury also found true allegations that Garibay fled the scene of the crime (Veh. Code, 20001, subd. (c)) and inflicted serious bodily injury in the course of committing a felony (Pen. Code, 12022.7, subd. (a), 1192.7, subd. (c)(8)). The trial court sentenced Garibay to 18 years eight months in state prison. On appeal, Garibay challenges her convictions and sentence. She contends that her convictions are invalid because the trial court instructed the jury with Judicial Council of California Criminal Jury Instructions (2006), CALCRIM No. 224, which references the defendant's "innocence," as opposed to the "constitutionally correct terminology" of the government's failure to prove guilt beyond a reasonable doubt. Garibay contends that her sentence is invalid because the trial court: (i) relied on an inapplicable rule of court[2]in denying her request for probation; (ii) failed to strike the great bodily injury enhancement findings; and (iii) violated her Sixth Amendment right to a jury trial by relying on aggravating factors, including her "unsatisfactory" performance on probation, to impose an upper term. For the reasons discussed below, Court conclude that Garibay's challenge to her convictions is without merit, but she is correct that resentencing is required.
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