Reyes

Defendant Ivan Reyes appeals from his convictions in case No. 06F3055 for making criminal threats and misdemeanor spousal battery. He contends Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 852 violated his right to due process because it allowed the jury to find him guilty based solely on uncharged acts found by a preponderance of the evidence. In the published portion of this opinion, we reject this claim.

Defendant also appeals from the sentence imposed following his conviction in case No. 06F3055 and the true finding he violated his probation in case No. 06F516. He argues the imposition of the upper term sentence violated Cunningham v. California (2007) 549 U.S. 270 [ 166 L.Ed.2d 856 , 127 S.Ct. 856 ]. Alternatively, he contends if the sentence did not violate Cunningham because of the existence of a prior conviction, then the same offense was improperly used to impose a consecutive sentence. We are not persuaded by these claims.

RELEVANT FACTUAL BACKGROUND

Mary Shaulis and defendant lived together with their three minor children. Defendant and Mary had lived together for approximately 15 years.

On June 23, 2004, defendant and Shaulis…