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People v. Leung4/9/1992
ed that it was selecting consecutive terms for a particular reason. "Select" means to make a choice. (Webster's 9th New Collegiate Dict. (1983) p. 1064.) A discretionary act is one which involves judgment and choice. (Black's Law Dict. (1979) p. 467.) The trial court's statement that it was "selecting" consecutive terms evidenced that it was aware of its discretion to make a different Disposition. Furthermore, had the court believed that consecutive terms were mandatory, it would not have stated reasons for their imposition since none would have been required. The trial court's awareness of its
discretion to sentence any of the defendants to concurrent rather than consecutive terms is manifestly shown by the record. As Jeffrey Leung makes no other contentions, the judgment against him is affirmed.
2. David Leung
Defendant David Leung argues that the trial court erred in imposing consecutive sentences because it "utilized inappropriate and inapplicable factors in making its sentence choice of consecutive terms ..."
a. Sentencing Proceedings
Probation was denied and the aggravated term was imposed. The court stated numerous reasons for each of these choices. The court then imposed consecutive one-third the midterm sentences for counts II, III and IV. "They were separate offense, separate victims, each of whom suffered separate losses and being armed. The separateness of those offenses mandates there be consecutive sentences imposed ..." (Italics added.) The court imposed a two-year consecutive term for the personal use enhancement pursuant to Penal Code section 12022.5. The arming enhancement under Penal Code section 12022, subdivision (a) was stayed. Sentence on counts V, VI, VII and VIII, and the enhancements related thereto were stayed pursuant to Penal Code section 654. A total sentence of nine years eight months in state prison was imposed.
b. Analysis
David argues that the counts for which consecutive terms were imposed did not involve separate offenses, separate victims or separate losses because the offenses took place at the same time and place and no single count charged defendant with an offense against more than a single victim. Instead, David contends that the crimes were all part of a single episode of aberrant behavior such as would preclude a finding that the offenses were temporally or spatially separate. (Cal. Rules of Court , rule 425(a)(3).) He therefore concludes that the trial court's utilization of the circumstance of multiple victims as a justification for imposing consecutive terms was invalid.
In People v. Humphrey (1982) 138 Cal. App. 3d 881 [188 Cal. Rptr. 473], the Third District concluded that the multiple victims factor set forth in rule 425(a)(4) was inapplicable where defendant was convicted of two counts of
robbery, each of which involved only a single victim. (138 Cal. App. 3d at pp. 882-883.) "We find the rule applies only to a situation where a defendant is convicted of two or more counts or crimes and at least one of those counts involves multiple victims." (138 Cal. App. 3d at p. 882.)
In Humphrey, Justice Regan of the Third District declined to follow the opinion he had authored in People v. Fowler (1980) 109 Cal. App. 3d 557 [167 Cal. Rptr. 235]. Fowler had been convicted of driving under the influence and two counts of vehicular manslaughter. Refusing to accept a restrictive interpretation o
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