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Name: People v. McFearson
Case #: F051882
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 01/07/2008
Subsequent History: 4/9/08 Rev. granted: S160601

The trial court erred when it used a fact that resulted in an enhanced sentence to also impose an aggravated term. The trial court used appellant’s three prior convictions to impose an aggravated sentence, and used the same convictions to increase his sentence by three years pursuant to section 667.5, subdivision (b). Respondent contended that the facts were different in each instance: that the fact of the prior conviction was used to impose the aggravated sentence, and the fact of a prior prison term was used to enhance the sentence, citing People v. Hurley. The appellate court rejected respondent’s argument, finding that two Supreme Court cases decided after Hurley have cast doubt on this distinction. The section 667.5, subdivision (b) enhancement is based on the fact of a prior conviction, not a prior prison term. Therefore, the trial court here erred, and remand is required to determine whether the court would have imposed the aggravated sentence if it did not consider the prior convictions.