P.

INTRODUCTION

Defendant Antonio Ruiz appeals from the judgment entered when he was resentenced after the trial court found on habeas corpus that the original sentence violated the dual use enhancement prohibition under Penal Code section 1170.1, subdivision (f). We conclude that by resentencing Ruiz without a hearing, the trial court violated his constitutional and statutory rights to be present and represented by counsel. Therefore we remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Crime On June 11, 2002 Ruiz shot at homes as he drove through the city of Lawndale, California. Shortly thereafter, he demanded “money and gold” at gunpoint from a man sitting in his car outside a convenience store. When the man refused, Ruiz threatened to shoot him in the head. The police apprehended Ruiz around 3:00 a.m. and found him in possession of methamphetamine. Ruiz was a member of the North Side Redondo gang and committed these acts in a rival gang’s territory.

B. The Initial Sentencing Ruiz was charged with seven counts: (1) criminal threats (Pen. Code,2 § 422); (2) assault with a firearm (§ 245, subd. (a)(2)); (3) attempted second degree robbery…