P. v. McQuiller
Appellant Donald R. McQuiller was arrested at a Wal-Mart store after obtaining a cash refund of $203.58 for a foam mattress. McQuiller had not paid for this mattress and it had not left the store. McQuiller testified that he did not receive any money in exchange for the mattress when he gave it to the clerk at the customer service counter.
McQuiller was convicted after jury trial of commercial burglary (count I) and petty theft with a prior theft conviction (count II). (Pen. Code, 459, 666.) He was sentenced to the upper term of three years imprisonment for count I; the upper term was imposed and stayed for count II.
Appellant argues that the trial court erroneously admitted of evidence of uncharged misconduct. Also, he cites imposition of the upper term as Blakely/Cunningham error. Neither argument is persuasive; Court affirm.
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