Simpson

On appeal from judgments of conviction for burglary, appellant contends that the trial court abused its discretion in imposing the upper term under the Determinate Sentencing Act (DSL). In particular, it is argued that the court erred in finding as circumstances in aggravation (1) that appellant was going to receive concurrent terms, and (2) that appellant’s prior record was poor. It is further argued that the court failed to consider as circumstances in mitigation (1) that the crime was minor, and (2) that appellant’s conduct was partially excused and his culpability reduced by alcoholism, We conclude that the judgments must be reversed because the court erred in three respects: (1) Under the peculiar facts of this case the court improperly considered the fact that appellant would receive concurrent terms as a circumstance in aggravation; (2) The court failed to consider appellant’s alcoholism as a mitigating factor; and (3) The court, in fact, viewed appellant’s alcoholism as an aggravating factor.

In two separate actions appellant pled guilty to burglary of the same liquor store in Santa Cruz. The probation report in action No. 62648 states that shortly after midnight…