People v. Humphrey

Opinion

REGAN, Acting P. J.

A jury convicted defendant of two counts of robbery (Pen. Code, § 211), with findings he personally used a firearm during the commission of each robbery (Pen. Code, § 12022.5), and a third count of automobile theft (Veh. Code, § 10851). The trial court sentenced defendant to a consecutive term of five years for one robbery, two years for the firearm use, and one year for the other robbery.

On appeal, defendant objects to the imposition of consecutive sentences for the two robbery convictions. We shall remand for resentencing but otherwise affirm the judgment.

The trial court improperly relied on the multiple-victim factor under California Rules of Court, rule 425(a)(4), in sentencing defendant consecutively on the two robbery counts, each count involving only one victim. Upon critical reexamination of our decision in

People

v.

Fowler

(1980) 109 Cal.App.3d 557, 566-567 [167 Cal.Rptr. 235], and careful inspection of the language in rule 425(a)(4), 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. Because the multiple-victim factor refers to

[883]

the singular “any of the crimes” and 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.

1

Our statutory interpretation requires this court no longer to follow

Fowler

on the point yet it is harmonious with the Fifth District Court of Appeal decision in

People

v.