P. v. McPeters
A jury found appellant and defendant Gill McPeters guilty of burglary (Pen. Code,[1] 459, count 1), and petty theft with a prior ( 666, count 2). The trial court found true the allegations that defendant had served three prior prison terms ( 667.5, subd. (b)). The court initially sentenced him to a total term of six years in state prison, which consisted of the upper term of three years on count 1, three years on count 2, stayed under section 654, plus one year on each of the prison priors. However, defense counsel requested defendant be sent to the California Rehabilitation Center (CRC), since he was addicted to narcotics. Both sides stipulated that defendant was an addict, so the court suspended execution of the sentence and committed him to the CRC. On appeal, defendant contends that 1) the trial court abused its discretion in denying his request for an updated supplemental probation report, and 2) the imposition of the upper term violated his right to a jury trial under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856; 166 L.Ed.2d 856] (Cunningham). Court affirm.
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