California, United States of America
The following excerpt is from People v. Harvey, 163 Cal.App.3d 90, 208 Cal.Rptr. 910 (Cal. App. 1984):
Harvey also attacks the court's use of the "viciousness and callousness" factor. He asserts that such qualities are inherent in any attempted murder by use of a firearm where the defendant willfully inflicts great bodily injury. He cites the general rule that it is improper to impose the upper term based on facts which are an inherent part of the charged offense. (See, e.g., People v. Cortez (1980) 103 Cal.App.3d 491, 495-496, 163 Cal.Rptr. 1.)
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