P. v. Turner CA5
This appeal is from a resentencing on remand following an earlier appeal. At issue is whether the court erred in reimposing two one-year enhancements based on prior prison terms, pursuant to Penal Code section 667.5, subdivision (b).
It did err. One of these one-year enhancements was based on the same prior offense as a five-year enhancement the court imposed under section 667, subdivision (a). This was a prohibited dual use. The other one-year enhancement was based on an offense that had been reduced to a misdemeanor prior to the resentencing hearing, pursuant to section 1170.18 (Proposition 47). At the time of the resentencing, this offense thus could no longer support the enhancement, which requires a felony conviction. Both enhancements, consequently, were unauthorized and are subject to correction at any time. We direct the trial court to strike them.
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