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The People v. David Lyndel Eichor

May 16, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DAVID LYNDEL EICHOR, DEFENDANT AND APPELLANT.



(Super. Ct. No. CR026807)

The opinion of the court was delivered by: Hull , Acting P. J.

P. v. Eichor

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant David Lyndel Eichor appeals from a judgment sentencing him to prison after he drove drunk and caused an accident in which three elderly people were injured. On appeal, he argues the trial court erred in failing to state reasons for its decision to deny him probation and impose the aggravated term of imprisonment, and that the error was not harmless. We agree with the People that defendant forfeited his claim of error.

FACTS AND PROCEEDINGS

Turning left from Highway 395 into a rest area, defendant struck Leroy Cramer's truck, sending it spinning into the path of a vehicle driven by James G., and causing a 55-gallon drum containing scrap metal to bounce out of Cramer's truck bed and onto James G.'s. Cramer's truck and James G.'s vehicle were totaled. Cramer suffered a spinal injury and major head trauma, and incurred over $700,000 in medical expenses; James G. suffered major lacerations to his lower extremities, and James G.'s wife Juanita suffered a lacerated spleen, and required a hip replacement.

At the scene, defendant failed field sobriety tests, and preliminary screening tests indicated his blood alcohol content was 0.21 to 0.25 percent.

At the time of the accident, defendant was on probation from a conviction for a misdemeanor DUI. Defendant later reported he had also suffered a DUI conviction in Oklahoma in approximately 1980, for which he served 30 days in jail. He expressed remorse, and his belief the accident "would have happened even if I [were] not drinking."

In April 2010, in exchange for a sentence "lid" of nine years, defendant pleaded guilty to driving under the influence, causing injury (Veh. Code, § 23153, subd. (b)), and admitted that, in so doing, he inflicted great bodily injury upon the three victims (Pen. Code, § 12022.7, subd. (a)).

Prior to sentencing, defendant submitted a statement in mitigation, characterizing his life as "almost unblemished" and urging the court to grant probation.

The presentence probation report conceded defendant was statutorily eligible for probation, but recommended the court impose a prison sentence. Regarding the court's sentencing choice, the report recommended the aggravated prison term and identified three circumstances in aggravation: the victims' sustained medical and related costs exceeding $700,000 (Cal. Rules of Court, rule 4.421(a)(9); subsequent references to rules are to the California Rules of Court), defendant was on probation when the crime was committed (rule 4.421(b)(4)), and his prior performance on probation was poor (rule 4.421(b)(5)). It also acknowledged two circumstances in mitigation: defendant's insignificant prior criminal record (rule 4.423(b)(1)) and his voluntarily admission of guilt and expression of concern for the victims in his presentence interview (rule 4.423(b)(3)).

The presentencing report contained statements from Cramer's family on his behalf and from James and Juanita G., all to the effect that defendant destroyed their lives and robbed them of their independence. It also contained several letters ...


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