Because lewd conduct within the meaning of Penal Code section 288, subd. (a) already has an age-range factor for the victim as an element of the offense, the trial court erred by relying on the victim’s age by itself in setting the defendant’s upper term sentence. (See Penal Code section 1170, subd. (b)). The Court of Appeal, therefore, vacated the defendant’s sentence and remanded the matter for resentencing.
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