When a defendant claims the trial court made an impermissible dual use of a fact to support both an enhancement and an aggravating factor in his conviction for assault, what is the test for determining whether the sentence should be increased or reduced?

California, United States of America

The following excerpt is from People v. Solis, B269472 (Cal. App. 2017):

When a defendant claims the trial court made an impermissible dual use of a fact to support both an enhancement and an aggravating factor, "the reviewing court looks at whether the trial court could have based the aggravating factor on evidence other than that which gave rise to the enhancement. If so, the sentence may stand. [Citation.]" (People v. Garcia (1995) 32 Cal.App.4th 1756, 1775.) If the trial court could only have based the aggravating factor on the evidence giving rise to the enhancement, that aggravating factor cannot stand. (See ibid.)

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