PEOPLE v. SWEARINGTON (1983)

Upon two consolidated informations a jury convicted defendant of one count of first-degree burglary (Pen.Code, § 459) and seven counts of second-degree burglary;  defendant admitted serving three prior prison terms.  (Pen.Code, § 667.5, subd. (f).)  The court sentenced defendant to the upper term of six years for first-degree burglary and seven consecutive terms of eight months for the seven second-degree burglaries resulting in an aggregate term of ten years and eight months.   Defendant appeals contending the court violated the prohibition against dual use of facts.  (Cal.Rules of Court, rule 441(b).)   The People contend the court erred in failing to impose sentence for the prior prison terms admitted by defendant.  (See Pen.Code, § 1170.1, subd. (f).)

The court imposed the upper term because:  (1) defendant planned the crimes (rule 421(a)(8));  (2) defendant occupied a position of dominance in the commission of the crime in that he was the sole participant (rule 421(a)(5));  (3) defendant's prior convictions were numerous and of increasing seriousness (rule 421(b)(2));  and (4) defendant committed the crime for profit.

The court imposed consecutive sentences because:  (1) the convictions for which sentences were imposed were numerous (rule 425(a)(5));  (2) defendant's prior convictions were numerous and of increasing seriousness (rules 425(b);  421(b)(2));  (3) defendant had an unstable work history (rule 408);  (4) defendant committed the crimes for profit;  (5) defendant played a dominant role in the commission of the offenses (rules 425(b);  421(a)(5));  and (6) defendant planned the crimes (rules 425(b);  421(a)(8)).

 Before addressing defendant's contentions we find that two of the court's reasons for both imposing the upper term and consecutive sentences were improper.   Rule 421(a)(5) provides:  “Circumstances in aggravation include:  [¶] (a) Facts relating to the crime, including the fact that:  ․ [¶] (5) The defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission.”   The court found defendant was the sole participant in each and every crime of which he was convicted.   Consequently, defendant could not have occupied a position of leadership or dominance.  (People v. Edwards (1981) 117 Cal.App.3d 436, 446, 172 Cal.Rptr. 652.)

 Also, the court found that defendant committed the crimes for profit.   Generally, all acquisitive crimes are committed for the purpose of economic gain.   Nothing in the record suggests the defendant committed these crimes for any other reason.¹  The court's observation that defendant committed the crimes for profit is a mere truism and fails to illuminate how defendant is more culpable thereby.   The court erred in relying on these factors.

 Four of the six reasons the court gave for imposing consecutive sentences were the very same reasons it gave for imposing the upper term.   The law is well-settled that a sentencing court may not impose consecutive terms for the same reasons it imposes an upper term.  (Rule 441(b);  People v. Skenandore (1982) 137 Cal.App.3d 922, 924, 187 Cal.Rptr. 368;  People v. Cheeks (1982) 135 Cal.App.3d 826, 830, 185 Cal.Rptr. 496;  People v. Ibarra (1982) 134 Cal.App.3d 413, 426, 184 Cal.Rptr. 639;  People v. Kozel (1982) 133 Cal.App.3d 507, 540, 184 Cal.Rptr. 208;  People v. Ratcliffe (1981) 124 Cal.App.3d 808, 821, 177 Cal.Rptr. 627;  People v. Lawson (1980) 107 Cal.App.3d 748, 752, 165 Cal.Rptr. 764.) ²

 The People contend that the court erred in failing to impose sentence for the prior prison terms defendant admitted.³  The court was required to impose sentence for the enhancement (Pen.Code, § 1170.1, subd. (d), formerly, subd. (c)) unless it stated circumstances in mitigation for striking the punishment.  (Pen.Code, § 1170.1, subd. (h), formerly (g).)   The People may raise the issue of an unauthorized sentence without appealing.   (People v. Benton (1979) 100 Cal.App.3d 92, 102, 161 Cal.Rptr. 12, but see People v. Gaines (1980) 112 Cal.App.3d 508, 511–514, 169 Cal.Rptr. 381.)   We assume the court will correct this error on remand.

The judgment is affirmed.   The cause is remanded for resentencing in accordance with the views expressed herein.

FOOTNOTES

1.   The probation report indicates defendant committed the crimes to obtain money to buy heroin.

2.   This court is called upon, with unremitting frequency, to review sentencing proceedings wherein sentencing courts contravene relevant rules of court or settled principles of law.   Often the prejudice resulting from the error is merely hypothetical, but legally significant.   The remands for further proceedings such errors engender wastes scarce judicial resources.   Trial court judges could mitigate the problem by familiarizing themselves with the relevant rules and legal principles.  (See, e.g., Greer and Rosen (1982) Felony Sentencing Manual.)   Counsel for both the defendant and the People often contribute to the problem by standing, literally, mute in the face of plain error.   Defense counsel provides an additional contention on appeal of incompetency (see People v. Cropper (1979) 89 Cal.App.3d 716, 719–720, 152 Cal.Rptr. 555) while the prosecutor fails to ensure that justice is properly dispensed.  (See ABA Standards For Criminal Justice (2d ed. 1982) The Prosecution Function, pp. 93–94.)

3.   The People correctly note that imposition of sentence for any more than one of those enhancements would violate twice the base term limitation imposed by Penal Code section 1170.1, subdivision (g), formerly subd. (f).

CARR, Associate Justice.

REGAN, Acting P.J., and EVANS, J., concur. Hearing denied;  BIRD, C.J., dissenting.