Does the fact of great bodily injury need to be used to support both the upper term and the great bodily injuries enhancement for count six?

California, United States of America


The following excerpt is from People v. Valenzuela, B247658 (Cal. App. 2014):

We need not decide whether the trial court violated these provisions by using the fact of great bodily injury to support both the upper term and the great bodily injury enhancement for count six because appellant cannot show prejudice and therefore cannot show ineffective assistance of counsel. "'Improper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if "'"[i]t is not reasonably probable that a more favorable sentence would have been imposed in absence of the error."'" (People v. Osband (1996) 13 Cal.4th 622, 728 (Osband).)

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