California, United States of America
The following excerpt is from People v. Bradley, A145227 (Cal. App. 2016):
Thus, the court may not use a fact that is an element of the crime as an aggravating factor, nor may the court impose a greater term based on the use of a firearm or any other factor if that is also the basis of an enhancement. Additionally, the court cannot rely on the same fact to impose a consecutive sentence and to impose the aggravated term. "Improper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if '[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.' " (People v. Coleman (1989) 48 Cal.3d 112, 166.)
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