Error and/or relief
It was error to rely on the same facts to impose an enhancement and the upper term.
First Holding:
Generally, error occurs when the same facts are considered both to aggravate the base term and to impose an enhancement.
Authority:
1170(b)(5) [The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law]
People v. Scott (1994) 9 Cal.4th 331, 350
Second Holding:
Where there is an improper dual or overlapping use of facts, remand is required if it is reasonably probable the defendant would obtain a more favorable result absent the error.
Authority:
People v. Barker (1986) 182 Cal.App.3d 921, 941
Third Holding:
A trial court may impose an upper term sentence based on a single, properly proven aggravating circumstance only, if, in the court’s discretion, that circumstance alone justifies a sentence exceeding the middle term.
Authority:
People v. Lynch (2024) 16 Cal.5th 730, 764