(concurring) — I write separately to express my view that determining whether the multiple offense *349policy results in a clearly excessive sentence is not necessarily a question of comparing the effects of the first crime to the effects of all the others, but may also be a comparison of the difference between the cumulative effects of multiple small thefts versus the effect of one large theft. In State v. Calvert, 79 Wn. App. 569, 903 P.2d 1003 (1995), the defendant was charged with five counts of forgery. Calvert's approach was to examine the difference between the effects of one forgery, and the effects of five smaller forgeries reaching the same total. The court held that given the circumstances of the crimes, the trial court was within its discretion to determine that “the minimal cumulative effects of the crimes were substantial and compelling reasons for imposing an exceptional sentence” because the multiple offense policy of RCW 9.94A.400 resulted in a sentence that was clearly excessive under former RCW 9.94A.390(l)(g) (1990). Calvert, 79 Wn. App. at 583.
This is a sensible application of the Sanchez9 test in theft cases. In multiple drug offense cases like Sanchez and Hortman,9 10 the comparison is like to like — the transactions were legally identical, were solicited by police officers, took place over a short time, and involved similar amounts of contraband. It is not surprising the sentencing courts believed the differences in cumulative effects were minimal.
It is useful to recall that the Sanchez analysis proceeds from the decision in State v. Batista, 116 Wn.2d 777, 808 P.2d 1141 (1991), in which the court considered whether the multiple offense policy resulted in a sentence that was clearly too lenient. The Batista court held two bases exist for an aggravated sentence under this policy: the “egregious effects” of the multiple offenses or the level of defendant’s culpability, either of which must be “beyond what is accounted for in presumptive sentencing.” Batista, 116 Wn.2d at 787-88. Those are the same factors that must be trivial or trifling in order to justify a mitigated sentence on grounds *350the multiple offense policy results in a sentence that is clearly excessive. Sanchez, 69 Wn. App. at 260-61.
Applying this analysis in a case of multiple drug transactions, the Sanchez court chose to ignore the first transaction, becasue its effects would be suffered regardless, and looked to see whether the later transactions added measurably to the harm caused by the first. This is consistent with Batista. But this approach poses special problems in multiple theft offense cases because the comparison cannot be like to like — the amount taken in the first theft will always be smaller than the total, and the thefts will often not be identical crimes. Where the charges include multiple counts of first degree theft and multiple counts of second degree theft, examining only the first transaction versus the total of all the others leads to serendipitous results depending on the size of the first transaction. Under the “first act” approach, the thief who steals a large amount early in the scheme has an odd advantage.
The first act analysis is not the only means of satisfying Batista, and here it seems artificial without the balancing advantage of a more just result. The Calvert court simply examined the cumulative effects of stealing the money all at once, versus stealing it over time. This too is consistent with Batista.
In Calvert, the difference was trivial. Here, it was not. In 67 different transactions over 16 months, Kinneman stole over $200,000. The cumulative effects of this protracted scheme included the foreclosures of several of the properties for which he was acting as escrow agent. The thefts thus had significant cumulative consequences over time, and the evidence does not support the trial court’s finding that the cumulative effect was “virtually nonexistent.” Clerk’s Papers at 404.1 therefore agree that the exceptional sentence must be reversed.
Review denied at 152 Wn.2d 1022 (2004).
State v. Sanchez, 69 Wn. App. 255, 848 P.2d 208 (1993).
State v. Hortman, 76 Wn. App. 454, 886 P.2d 234 (1994).