Levell

Defendant was convicted, after a jury trial, of petty theft with a prior, a violation of Penal Code sections 484 and 666. The prior conviction, robbery, had resulted in the service of a state prison term of more than one year. When imposing judgment in the present case, the court sentenced defendant to the upper term of three years for theft and enhanced the sentence by one year for the prior prison term, pursuant to section 667.5, subdivision (b). On appeal, defendant contends that this sentence involves improper multiple punishment since his prior robbery conviction was relied on to increase the theft offense from a misdemeanor to a felony, and his prior prison term resulting from that conviction was relied on to add one year onto his sentence. We do not agree.

Analysis

The Framework for Review

If defendant is correct in his contentions, the enhancement is invalid. We therefore may entertain the issue even though no objection was made in the trial court. (People v. Loera (1984) 159 Cal.App.3d 992, 998 [ 206 Cal.Rptr. 60 ].)

On the substantive point, we must evaluate the present status of a rule prohibiting the dual use of certain facts in the imposition of sentence.…