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People v. Calhoun11/2/2004
npleasant reality of being forced to allow his death to go unpunished.... Valenzuela's drunk driving resulted in the death of two people, not just one. The trial court should have the discretion to make Valenzuela 'pay' for both deaths." (Id. at p. 365, 46 Cal.Rptr.2d 715.)
Although we do not disagree with Valenzuela's general desire to support the imposition of greater (e.g., consecutive) punishment when a defendant is convicted on two counts of gross vehicular manslaughter, we disagree with its interpretation of the multiple-victim aggravating circumstance. Valenzuela quoted another case to describe the "transactionally related" theory:
"[T]he Court of Appeal in People v. Coulter (1983) 145 Cal.App.3d 489 [193 Cal.Rptr. 476] held: 'Where ... multiple crimes are so closely connected in time and place as to comprise a single criminal transaction a sentencing court may impose the aggravated term for one of the crimes based upon a finding of multiple victims involved in the entire criminal transaction.... [ ] [Cases subsequent to People v. Guevara (1979) 88 Cal.App.3d 86 [151 Cal.Rptr. 511] have found the phrase 'transactionally related' convenient in distinguishing between those cases where a finding of multiple victims is proper because of the circumstantial cohesiveness of multiple crimes each involving a single victim, and those cases where the crimes are sufficiently separated in time and circumstance such that a multiple victim finding is unwarranted.' (**551 145 Cal.App.3d at pp. 491-492 [193 Cal.Rptr. 476].)" (Valenzuela, supra, at pp. 363-364, 46 Cal.Rptr.2d 715.)
We are unpersuaded by Valenzuela, cases cited therein and by the People in this case that a multiple-victim aggravating circumstance can apply when there is only one victim per conviction. With respect to imposition of a sentence for a particular offense for which there is only one victim, that particular "crime" did not "involve multiple victims." (People v. Humphrey, supra, 138 Cal.App.3d at pp. 882-883, 188 Cal.Rptr. 473; People v. Arviso, supra, 201 Cal.App.3d at p. 1059, 247 Cal.Rptr. 559; People v. McNiece, supra, 181 Cal.App.3d at p. 1061, 226 Cal.Rptr. 733; People v. Levitt, supra, 156 Cal.App.3d at p. 517, 203 Cal.Rptr. 276; People v. Lawson, supra, 107 Cal.App.3d at p. 758, 165 Cal.Rptr. 764.) Accordingly, the trial court in this case erred by relying on the multiple-victim aggravating circumstance to impose the upper six-year term for each of Waller's two gross vehicular manslaughter offenses.
C
Although the trial court erred by relying on the multiple-victim aggravating circumstance to impose the upper six-year terms, the record could support an inference that was not the only aggravating circumstance on which the court relied in imposing the upper term for each of Waller's two gross vehicular manslaughter offenses. As the People note, the trial court expressly noted it could have imposed consecutive sentences for those two offenses, yet chose to impose concurrent, upper terms. In imposing the upper terms, the court stated: "[I]n aggravation, the Court would cite that this *1051 defendant was convicted of other crimes for which consecutive sentences could have been imposed, and there are separate victims of the crime involving violence." California Rules of Court, rule 4.421(a) (7) lists as an aggravating circumstance relating to the crime the fact that: "The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed." Therefore, the record could support an inference the trial court may have relied on two separate aggravating circumstances in imposing the upper terms: (1) "multiple victims;" and (2) the fact it could have imposed consecutive terms fo
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