What are the implications of a middle term sentence for assault with a deadly weapon in violation of section 245, subdivision (a)(1) of the Criminal Code?

Defendant argues the trial court abused its discretion in imposing the middle term on count 1 (assault with a deadly weapon in violation of section 245, subdivision (a)(1)) because in doing so, it made an impermissible dual use of facts in basing the sentence on infliction of great bodily harm, which also formed the basis of enhancement under section 12022.7, subdivision (a) on the same count. He further argues that even if we were to find the trial court properly relied on the separate facts of callousness, viciousness and degree of cruelty of the crime, because those facts were not found by a jury, the court's use of them violated Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166

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