P. v. Garcia
A jury convicted defendant Ben Garcia of four felony convictions: two counts of assault with force likely to produce great bodily harm (Pen. Code, 245, subd. (a)(1)),[1] one count of driving under the influence of alcohol and causing injury (Veh. Code, 23153, subd. (a)) and one count of driving with a blood-alcohol level of greater than 0.08 percent and causing injury (Veh. Code, 23153, subd. (b), collectively referred to as DUI with injury). On appeal he contends the trial court prejudicially erred in finding one of the victims of the assault unavailable as a witness and thereby allowing the introduction of the witnesss preliminary hearing testimony. We disagree. He also contends both Vehicle Code sections must be stayed under section 654. He goes on to argue that one of them must be stayed for all purposes. We agree as to the first contention, but not the second. In bifurcated proceedings, two prior conviction enhancements were also found true. Defendant appeals those true findings as well, contending he gave no waivers whatsoever of his trial rights. On this point, we agree with defendant. Court shall reverse and remand on these enhancement allegations.
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