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Name: Base Term Selection

The Court of Appeal agreed with the parties that the trial court relied on improper aggravating factors in imposing the upper term. The trial court (1) relied on the same factor to impose both the upper term and a consecutive sentence, (2) considered a fact that was an element of the offense when choosing the upper term, and (3) relied on the appellant’s prior felony convictions, as opposed to his current convictions, in finding that he was sentenced to concurrent terms when he could have been sentenced to consecutive terms. The errors were not harmless. The sentence was vacated and the case remanded for resentencing.