Yim

Yano Yim appeals after his conviction, by jury, of second degree burglary of a vehicle. (Pen. Code, §§ 459, 460, subd. (b).) Appellant waived his right to a jury trial on whether he had sustained two prior felony convictions for which he served prison terms. (§ 667.5, subd. (b).) The trial court found these allegations to be true. It sentenced appellant to prison for an aggregate term of four years: the upper term of three years on the second degree burglary plus one year for one of the prior prison terms served. The trial court struck the remaining prior prison term allegation. Appellant contends imposition of the upper term was an improper “dual use of facts.” He also argues error based on Cunningham v. California (2007) 549 U.S. 270 [ 166 L.Ed.2d 856 , 127 S.Ct. 865 ], We disagree. The trial court imposed the upper term for two reasons only: Appellant was on parole when he committed the new offense and he had performed poorly on parole. As we shall explain, these are recidivism-related, factors that need not be found by a jury. (Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435 , 120 S.Ct. 2348 ].)

Facts and Procedural History

Appellant used a screwdriver…