Does a judge improperly rely on the same facts to impose the upper base term and enhancement?
California, United States of America
The following excerpt is from People v. Espinoza, 140 Cal.App.3d 564, 189 Cal.Rptr. 543 (Cal. App. 1983):
This is not a case in which the judge improperly relied on the same facts to impose the upper base term and enhancement. In such a situation, the judge has exercised his discretion and should have a chance to decide whether to reimpose the same sentence without a dual use of facts. (See People v. Roberson (1978) 81 Cal.App.3d 890, 893, 146 Cal.Rptr. 777.)
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