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P. v. Schwenk

Defendant was convicted following a second jury trial of two counts of lewd acts upon a child (Pen. Code, § 288, subd. (a)), and admitted that he suffered a prior conviction of the same offense for purposes of sentence enhancement pursuant to Penal Code sections 667.51, subdivision (a), and 667, subdivisions (b) through (i).[1] He was sentenced to an aggregate term in state prison of 30 years. In this appeal he claims that double jeopardy principles barred retrial of the prior conviction allegations, his admission of the prior conviction was invalid, imposition of the five-year enhancements for the prior conviction under sections 667, subdivision (a), and 667.51, subdivision (a), was error, and an upper term for the conviction of lewd acts upon a child was improper.
We conclude that double jeopardy did not attach to retrial of the prior conviction, and defendant’s admission of the prior conviction at his second trial was knowing and voluntary. No sentencing error occurred in the imposition of an upper term for the conviction of lewd acts upon a child, or the five-year enhancement under 667.51, subdivision (a). The trial court erred by imposing of a five-year enhancement under section 667, subdivision (a), as defendant was neither charged with nor admitted that allegation. The judgment must be modified to strike the five-year section 667, subdivision (a), enhancement. In all other respects we affirm the judgment.

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