Harris

The issues in this appeal concern whether the trial court committed sentencing error following remand from this court for resentencing. Of first impression is the issue whether the court erred when it imposed an enhancement for service of a prior prison term (Pen. Code, *494 § 667.5, subd. (b)), which appellant would not have served were it not for an unconstitutional conviction.

The Case

In 1988 a jury convicted appellant of robbery. The trial court imposed the aggravated term of five years, with a five-year enhancement based upon a prior robbery conviction and a one-year enhancement for a prior prison term for grand theft. This court vacated the sentence and remanded for resentencing because in stating its reasons for imposing the aggravated term the trial court improperly relied upon a prior serious felony conviction (robbery/kidnap) 1 which it had stricken for the purpose of enhancement because appellant had received no assistance of counsel and no constitutional advisements at the time of his conviction.

On remand, the trial court again sentenced appellant to the aggravated term with a five-year enhancement for having previously been convicted of a serious felony…