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People v. Calhoun11/2/2004
f vehicular manslaughter with gross negligence (Pen.Code, § 192, subd. (c)(1)) and two counts of reckless driving causing bodily injury (§ 23104, subd. (a)). At Waller's sentencing, the trial court received and considered the probation department's report that listed one aggravating circumstance--Waller's prior performance on probation was unsatisfactory (Cal. Rules of Court, rule 4.421(b)(5)). [FN10] The probation report recommended the court impose the middle term of four years for Waller's first gross vehicular manslaughter conviction and a consecutive 16- month term (one-third the middle term of four years) for his second gross vehicular manslaughter conviction. The court also received and considered Waller's statement in mitigation and the prosecutor's statement in aggravation. The prosecutor argued there were four aggravating circumstances relating to the crimes and three aggravating circumstances relating to Waller. [FN11] The prosecutor requested the trial court impose the upper six-year term for Waller's first gross vehicular manslaughter conviction, a consecutive 16-month term for his second gross vehicular manslaughter conviction, and consecutive six-month terms for each of his two convictions for reckless driving causing bodily injury.
FN10. The probation report also listed one mitigating circumstance-- Waller had not sustained any other criminal convictions since 1995 (Cal. Rules of Court, rule 4.408(a)).
FN11. However, none of those alleged seven aggravating circumstances were subsequently cited by the trial court when it explained its reasons for imposing the upper terms for Waller's two convictions of gross vehicular manslaughter.
*1048 The trial court noted consecutive sentencing was "theoretically possible" because there were separate victims in a violent crime. However, the court sentenced Waller to the upper six-year term **549 for the first count of vehicular manslaughter with gross negligence, a concurrent upper six-year term for the second count of vehicular manslaughter with gross negligence, and concurrent terms of 180 days for the two counts of reckless driving causing bodily injury, for a total term of six years. The court explained its reasoning for selecting the upper six-year term for each of Waller's two gross vehicular manslaughter convictions:
"In selecting the upper term, the Court has to weigh circumstances in mitigation as provided by the sentencing rules, as against those in aggravation. And I think the mitigants, in Mr. Waller's case, have already been talked about, in some respect, his lack of significant criminal record ... [a]nd his background[.] [I]n aggravation, the Court would cite that this defendant was convicted of other crimes for which consecutive sentences could have been imposed, and there are separate victims of the crime involving violence.
"I am using that aggravating factor as a basis for imposing the aggravated term. I think it outweighs all of the mitigation referred to by counsel and by the probation department. I am ordering terms to run concurrently." (Italics added.)
B
Waller contends the trial court erred by imposing the upper six-year term for each of his two gross vehicular manslaughter convictions based on the aggravating circumstance of multiple victims. He asserts that a multiple-victim aggravating circumstance should not apply when, as in this case, there is only one victim per criminal count.
As Waller notes, there is a split of authority on the issue of whether a multiple-victim aggravating circumstance applies if there is only one victim charged for each criminal count. "Before they were amended in 1991 to delete references to multiple victims, California Rules of Court, [former] rules 421(a)(4) and 425(a)(4) provided as an aggravat
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