CALIFORNIA CRIMINAL DEFENSE: YOU CAN'T USE ONE PRIOR TWICE IN SENTENCING
The court used the same prior conviction to impose upper term and to impose an extra year under PC 667.5(b). What about the rule barring the use of a single fact twice? The DA's theory is that the upper term is based on the fact of the conviction, while the 667.5(b) year is based on
the fact that the def. served time in prison.
The Court of Appeal cites the cases which have already settled this issue. (e.g., Jones, 5 Cal.4th 1142), and concludes that the court can't do this.
People v. McFearson; 2008 DJ DAR 17096; DJ, 11/20/08; C/A 5th
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