P. v. Battershell
Defendant was convicted of two counts of aggravated assault (Pen. Code,[1] 245, subd. (a)(1)), one count of mayhem, a count of burglary, and true findings were made as to great bodily injury enhancements ( 12022.7, subd. (e)) relating to two of the counts. Defendant challenges the trial courts decision to impose the upper term for the unstayed enhancement to the principal term, arguing that it violates the federal constitutional guarantee of a jury trial, where the statute governing terms for enhancements ( 1170.1, subd. (d)), mandates a presumptive middle term, under the rule of Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856]. Respondent concedes the error. Court agree.
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