P. v. Chokr
Defendant appeals from the judgment sending him to prison for five years eight months following a jury trial in which he was convicted of two separate counts of indecently exposing himself after already having been convicted of that crime. (See Pen. Code, 314, subd. (1).) The charges were enhanced by two years because Chokr committed the new offenses while he was conditionally released pending trial on other felony charges. (See Pen. Code, 12022.1, subd. (b).)
Chokr contends that his convictions for indecent exposure must be reversed because the court instructed the jury as to the definition of the reasonable doubt burden of proof by using the new instruction on that topic published by the Judicial Council of California (CALCRIM). Alternatively, he requests a remand for resentencing because the trial court failed to follow the probation officers recommendation to refer the case for a diagnostic evaluation to the Department of Corrections (CDC) and because he alleges the upper term was selected in violation of the dictates of Cunningham v. California(2007) 549 U.S. [127 S.Ct. 856]. Court affirm.
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