California, United States of America
The following excerpt is from People v. Rajskup, F070819 (Cal. App. 2016):
"'A fact that is an element of the crime shall not be used to impose the upper term.' However, where the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence." (People v. Castorena (1996) 51 Cal.App.4th 558, 562.) "The essence of 'aggravation' relates to the effect of a particular fact in making the offense distinctively worse than the ordinary." (People v. Moreno (1982) 128 Cal.App.3d 103, 110.)
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