P. v. Wise
Defendant Damon Wayne Wise was found guilty by a jury of attempted first degree robbery (Pen. Code, 211, 664; further statutory references are to this code), first degree burglary ( 459), assault with a deadly weapon ( 245, subd. (a)(1)) and elder abuse. ( 368, subd. (b)(1).) The jury also found allegations true that defendant knew or should have known the victim was age 65 or older ( 667.9, subd. (a)) and that he inflicted great bodily injury on a person age 70 or older. ( 368, subd. (b)(2), 12022.7, subd. (c).) Probation was denied and defendant was sentenced to a term of nine years in state prison, consisting of an upper term of four years for assault with a deadly weapon plus a five-year enhancement for inflicting great bodily injury. Pursuant to section 654, the court imposed but stayed sentences on the remaining counts.
Defendant appeals, claiming the trial court violated the prohibition against dual use of facts at sentencing and that his upper term sentence violated the holding in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham). Court affirm the judgment.
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