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People v. Calhoun11/2/2004
ing circumstance and a criterion affecting concurrent and consecutive sentences, respectively, the fact that 'The crime involved multiple victims.' The reason for its inclusion in these rules was to further the intent of the Legislature that prison terms be proportionate to the seriousness of the offense. [Citation.]" [FN12] *1049 (People v. Valenzuela (1995) 40 Cal.App.4th 358, 363, 46 Cal.Rptr.2d 715, fn. omitted.)
FN12. The fact that an aggravating circumstance is deleted from the rule expressly listing certain aggravating circumstances does not necessarily preclude its future use by a trial court as an aggravating circumstance. California Rules of Court, rule 4.408(a) provides: "The enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made. Any such additional criteria shall be stated on the record by the sentencing judge."
In the line of cases rejecting the assertion that a multiple-victim aggravating circumstance can apply when there is only one victim charged for each count, People v. Humphrey (1982) 138 Cal.App.3d 881, 188 Cal.Rptr. 473 stated:
"The trial court improperly relied on the multiple-victim factor under [former] California Rules of Court, rule 425(a)(4), in sentencing defendant consecutively on the two robbery counts, each count involving only one victim.... [W]e 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. Because the multiple-victim factor refers to the singular 'any of the crimes' and **550 whereas other factors listed in rule 425 refer to the plural 'crimes,' the Legislature must have intended the (a)(4) factor not to apply to a multiple-conviction situation where no one count involves more than one victim. Our statutory interpretation ... is harmonious with the Fifth District Court of Appeal decision in People v. Lawson (1980) 107 Cal.App.3d 748, 758 [165 Cal.Rptr. 764]." (Id. at pp. 882-883, 165 Cal.Rptr. 764, fn. omitted.)
Humphrey's holding was favorably cited in People v. Arviso (1988) 201 Cal.App.3d 1055, 1059, 247 Cal.Rptr. 559["[T]he crimes did not involve multiple victims within the meaning of [former] rule 425(a)(4), as each count alleged only a single victim."]; People v. McNiece (1986) 181 Cal.App.3d 1048, 1061, 226 Cal.Rptr. 733 (disapproved on another ground in People v. McFarland (1989) 47 Cal.3d 798, 804-805, 254 Cal.Rptr. 331, 765 P.2d 493); and People v. Levitt (1984) 156 Cal.App.3d 500, 517, 203 Cal.Rptr. 276.) In People v. Lawson, supra, 107 Cal.App.3d 748, 165 Cal.Rptr. 764, cited in Humphrey, the Court of Appeal rejected the trial court's reliance on an aggravating circumstance of multiple victims in imposing the upper term for a robbery conviction, stating: "[T]he crime ... did not involve multiple victims. It involved one victim. The court may not find that the crime at issue, singular not plural, involved multiple victims (see [former] Cal. Rules of Court, rule 421(a)(4)) by adding victim(s) from independent crimes." (Id. at p. 758, 165 Cal.Rptr. 764.)
In the line of cases accepting the assertion that a multiple-victim aggravating circumstance can apply when there is only one victim charged for each count, People v. Valenzuela, supra, 40 Cal.App.4th 358, 46 Cal.Rptr.2d 715 relied on a "transactionally related" theory as support for imposition of consecutive sentences for multiple crimes, each of which involved only one victim, stating:
"Without the 'transactionally related' analysis, this trial court would be unable to impose a consecutive term for the killing of the husband and would be faced *1050 with the u
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