What is the test for determining whether an element of the crime may not be used to impose the upper term?
California, United States of America
The following excerpt is from People v. Smith, D070299 (Cal. App. 2017):
that is an element of the crime may not be used to impose the upper term].) The court's discretion to identifying aggravating circumstances is otherwise limited only by the requirement that they be 'reasonably related to the decision being made.' " (People v. Sandoval, supra, 41 Cal.4th at p. 848.)
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