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People v. Leung4/9/1992
f the multiple victims factor that would preclude its use where multiple crimes of violence arose out of the same transaction, the court held that the circumstance of multiple victims could be used in such cases to justify the imposition of consecutive terms. In his one paragraph analysis of this issue in Humphrey, Justice Regan rejected Fowler as a misinterpretation of the sentencing rule. Since the Rules of Court are propounded for the guidance rather than the restriction of trial courts and are not exclusive statements of the criteria applicable to sentencing choices, the "statutory interpretation" analysis engaged in in Humphrey (cf. People v. Humphrey, supra, 138 Cal. App. 3d at p. 883.) was inappropriate. (rule 408.) As we shall explain, Humphrey 's rejection of Fowler was ill- advised, since Fowler cogently analyzed and resolved the issue. The Third District, nevertheless, reaffirmed Humphrey in People v. Coulter (1983) 145 Cal. App. 3d 489 [193 Cal. Rptr. 476]. The Second District joined suit in People v. Levitt (1984) 156 Cal. App. 3d 500 [203 Cal. Rptr. 276]. "Sentences cannot be made consecutive on the basis of multiple victims if, as here, there is but one victim per count." (156 Cal. App. 3d at p. 517.)
Universal agreement was not, however, achieved. In People v. Birmingham (1990) 217 Cal. App. 3d 180 [265 Cal. Rptr. 780], the Fourth District, citing Coulter, determined that " 'multiple victims' refers to multiple victims of a single crime or crimes committed during a single transaction." (217 Cal. App. 3d at p. 185, italics added.) Because "the two crimes occurred in a single transaction," the court found that the multiple victims factor was a proper reason for imposing consecutive terms. (217 Cal. App. 3d at p. 185.) We rejected Coulter in People v. Blade (1991) 229 Cal. App. 3d 1541 [281 Cal. Rptr. 161].
In 1991, the "multiple victims" factor was removed from rule 421's list of aggravating circumstances as a result of confusion over its meaning. The factor had apparently been frequently misapplied to aggravate an offense committed against a single victim. (Advisory Com. Comment, rule 421.) At the same time, the Judicial Council, without comment, removed the "multiple victims" factor from rule 425's list of criteria relevant to the imposition of consecutive terms.
Our task is to determine whether the fact that there were multiple victims of defendant's offenses is an aggravating circumstance which can be utilized as a justification for imposing consecutive terms. "The essence of 'aggravation' relates to the effect of a particular fact in making the offense distinctively worse than the ordinary." (People v. Moreno (1982) 128 Cal. App. 3d 103, 110 [179 Cal. Rptr. 879]; accord People v. Young (1983) 146 Cal. App. 3d 729, 734 [194 Cal. Rptr. 338].) In choosing between consecutive and concurrent terms, the court must decide whether the particular circumstance at issue renders the collective group of offenses distinctively worse than the group of offenses would be were that circumstance not present.
The choice between concurrent and consecutive terms arises only where the defendant had been convicted of multiple offenses. To determine whether the existence of multiple victims merits the imposition of consecutive terms, the court must compare between the gravity of (1) multiple offenses being committed against a single individual a
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