Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F08903327, Gary R. Orozco, Judge.
Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
Vartabedian, A.P.J., Hill, J., and Kane, J.
OPINION
PROCEEDINGS
Appellant, Derrick Deundre White, was charged with 35 counts of first degree burglary (Pen. Code, §§ 459 & 460, subd. (a)), one count of attempted burglary (§§ 664, 459 & 460, subd. (a)), and one count of burglary. On June 17, 2008, the prosecutor made an oral motion, granted by the trial court, to amend count 38 to be attempted burglary. Subsequent entries in the clerk’s minutes, however, showed count 37 to be an attempted burglary allegation and count 38 to be a burglary allegation. A jury trial commenced for appellant and six codefendants on August 25, 2008. On September 18, 2008, appellant entered into a plea agreement, executing a felony advisement, waiver of rights, and plea form (plea form). Appellant waived his constitutional rights pursuant to Boykin/Tahl. Under the agreement as set forth in the plea form, appellant would admit he received stolen property (§ 496, subd. (a)) in counts 20, 21, 22, 23, 24, and 25 and would admit count 38 as a violation of first degree burglary. The parties agreed to a lid of 10 years on appellant’s sentence.
Unless otherwise noted, all statutory references are to the Penal Code.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl).
Appellant acknowledged understanding and executing the plea form. Appellant further acknowledged consulting with counsel. The court advised appellant, and appellant waived, his constitutional rights pursuant to Boykin/Tahl. Appellant pled no contest to committing burglary in count 38 and to possession of stolen property in counts 20 through 25. The parties stipulated to, and the court found, a factual basis for the pleas. The remaining allegations were dismissed.
Appellant stipulated to a factual basis for his plea, admitting in counts 20 through 25 that he received stolen property. The seven counts pertinent to appellant alleged the following seven burglaries: count 20, a residence on N. Bonadelle on December 27, 2007; count 21, a residence on E. Heaton on January 1, 2008; count 22, a residence on Monticello Circle on January 16, 2008; count 23, a residence on Coventry on January 17, 2008; count 24, a residence on Santa Ana on January 17, 2008; count 25, a residence on Glen Kippen on January 25, 2008; count 38, a residence on Lind on February 23, 2008. Each offense admitted by appellant was committed on different victims. In light of appellant stipulation to a factual basis to his plea, we do not recount the evidence adduced at trial prior to appellant changing his plea.
On November 17, 2008, the court sentenced appellant to the midterm of four years on count 38, the burglary allegation. On counts 20 through 25, the court imposed consecutive sentences of one-third the midterm of two years, or, six consecutive eight-month sentences. Appellant’s sentence is eight years in prison. The court awarded custody credits and imposed a restitution fine. Appellant filed a timely notice of appeal, but did not secure a certificate of probable cause.
Appellant contends the trial court erred in sentencing him consecutively. Appellant also contends the trial court violated his Sixth Amendment right to a jury trial in sentencing him consecutively on each count.
CONSECUTIVE TERMS FOR SEPARATE VICTIMS
Appellant contends the trial court erred in sentencing consecutively on each count. Appellant challenges the reasoning of People v. Leung (1992) 5 Cal.App.4th 482 (Leung) which held that the presence of separate victims justified consecutive sentences. We find the reasoning of Leung persuasive and apply its holding here.
Leung noted that on appeal, 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 to a sentence. The essence of “aggravation” relates to the effect of a particular fact in making the offense distinctively worse than the ordinary. In choosing between consecutive and concurrent terms, the court must decide whether the particular fact at issue renders the collective group of offenses distinctively worse than the group of offenses would be were that fact not present. (Leung, supra, 5 Cal.App.4th at p. 504.)
Leung noted 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 and (2) multiple offenses being committed against multiple individuals. If multiple offenses against multiple individuals is “distinctively worse” than multiple offenses against a single individual, the existence of multiple victims is a circumstance which justifies the imposition of consecutive terms. (Leung, supra, 5 Cal.App.4th at p. 504.)
Leung reasoned multiple offenses committed against different individuals are distinctively worse than multiple offenses committed against a single individual. Offenses against persons, such as robberies or rapes, are crimes which, by their nature, are significantly more serious when they are committed against more than one person. Usually, the total impact of singular offenses against different victims will exceed the total impact on a single individual who is victimized multiple times. Furthermore, the culpability of the defendant who victimizes multiple individuals is greater than the culpability of a defendant who victimizes a single individual. (Leung, supra, 5 Cal.App.4th at p. 504.)
Leung held that “the existence of multiple victims of the group of crimes at issue in this case justified imposing consecutive terms.” (People v. Leung, supra, 5 Cal.App.4th at p. 505; accord People v. Gutierrrez (1992) 10 Cal.App.4th 1729, 1739 [court properly considered multiple victims in imposing consecutive sentences].)
Similarly, in the instant case, appellant victimized a different person in each of the possession of stolen property offenses and the burglary offense. Appellant and his codefendants were on a crime spree that continued unabated for months until they were arrested. These offenses involved dozens of separate victims. The trial court did not abuse its discretion in sentencing appellant consecutively on each count. Furthermore, we note the trial court’s sentence of eight years was less than the lid term of ten years appellant had bargained for in the plea agreement. We reject this contention on appeal.
RIGHT TO JURY TRIAL
Appellant contends that his Sixth Amendment right to a jury trial was violated when the trial court sentenced him to consecutive sentences on counts one and three. Appellant challenges the holding of the California Supreme Court in People v. Black (2007) 41 Cal.4th 799, 820-823 that consecutive sentencing is not subject to the Sixth Amendment. The constitutional arguments appellant makes on appeal were recently rejected by the United States Supreme in Oregon v. Ice (2009) ___ U.S. ___; [129 S.Ct. 711]. No jury finding is required for a trial court to impose a consecutive sentence. (Ibid; People v. Quintanilla (2009) 170 Cal.App.4th 406, 414.) We therefore reject appellant’s contention.
DISPOSITION
The judgment is affirmed.