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Name: People v. Yim
Case #: B189955
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 06/21/2007

Appellant’s prior performance on parole was a recidivism-related factor which did not require a jury finding in order to impose the upper term. Appellant was sentenced to the upper term for his convictions for two reasons: he was on parole when he committed the new offense, and he had performed poorly on parole. On appeal, he argued error based on Cunningham v. California. He also contended that the imposition of the upper term was an improper dual use of facts because it made dual use of his prior conviction when it relied on his parole status and unsatisfactory performance on parole to impose both an upper term sentence and a prior prison term enhancement under section 1170, subd. (b). The dual use argument was rejected. Parole status and performance on parole are distinct aggravating factors. The factors were also recidivism-related factors which need not be found by a jury, so there was no Cunningham error.