CALIFORNIA CRIMINAL LAWYER NEWS: CALIFORNIA COURTS CANNOT USE PRISON PRIORS TO ADD TIME AND CHOOSE UPPER TERM
DUAL USE OF PRISON PRIORS IN CALIFORNIA CRIMINAL CASES-REJECTEDThe court here imposed the upper term based on the defendant's priors. The court used those very same priors as prison priors under PC 667.5(b) to add time as well.
Question: Does this violate the dual use ban?
The Attorney General argues that the upper term was based on the fact of the priors, while the extra time for the prison priors was based on the fact that the defendant had served time in prison.
This Court of Appeal correctly recognizes the Supreme Court authority rejecting this distinction. (See, Jones, 5 Cal.4th 1142.) The California Penal Code sec.667.5(b) enhancement IS based on the fact of the prior conviction. Therefore, the trial judge couldn't add time twice for the same priors.
People v. McFearson; 2008 DJ DAR 156; DJ, 1/8/08; C/A 5th
