When a person is initially committed to the California Rehabilitation Center, the sentence imposed is, for practical purposes, only an interim sentence. Pursuant to a negotiated plea agreement in two cases, appellant was sentenced to five years in prison, with the term, in part, comprised of an upper term sentence for second degree burglary. Imposition of sentence was suspended and appellant was committed to the California Rehabilitation Center. Several years later, the commitment was vacated and the five year term was imposed. The appellate court rejected the People’s argument that appellant’s Cunningham claim was untimely as it was not made at the initial sentence. Under the CRC scheme, the initial sentence is only an interim sentence that is not entered until the defendant is discharged from CRC and is returned for further proceedings.
The trial court may determine and rely on the defendant’s probation or parole status to justify imposition of the upper term. The trial court rejected appellant’s objection that the upper term violated appellant’s right to a jury trial (Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]), noting that appellant was on probation at the time of the instant offense. The court found that because probationary status is an issue of recidivism, the defendant does not have a right to a jury trial and proof beyond a reasonable doubt as to whether he is on probation or parole