Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C147838
Jenkins, J.
This is an appeal from a final judgment following the conviction of appellant Lance C. Morton, Jr. by a jury for willful, deliberate and premeditated attempted murder, assault with a deadly weapon, first degree burglary, and corporal injury to a spouse. For the reasons stated below, we remand this matter to the trial court for the limited purpose of resentencing appellant, but in all other regards affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On July 15, 2004, an information was filed charging appellant with willful, deliberate and premeditated attempted murder of “Jane Doe” (Penal Code § 187, subd. (a), § 664) (count 1), assault with a deadly weapon (§ 245, subd. (a)(1)) (count 2), first degree burglary (§ 459) (count 3), and corporal injury to a spouse (§ 273.5) (count 4). The information further alleged as to counts 1 and 4 that appellant personally inflicted great bodily injury (§ 12022.7, subd. (e)); as to counts 1, 2 and 4 that appellant used a deadly weapon (§§ 12022, subd. (b)(1) and 1192.7, subd. (c)(31)); as to count 4 that appellant had suffered a prior conviction for a violation of section 273.5 within the past seven years (§ 273.5, subd. (e)); and as to count 1 that appellant had sustained seven prior convictions and served three prior prison terms (§ 667.5, subd. (b)).
Unless otherwise stated, all statutory citations herein are to the Penal Code.
A jury trial commenced March 20, 2007.
I. The Prosecution’s Evidence.
A. Appellant’s Relationship With Carla Moore.
Appellant and Carla Moore had a volatile, on-again-off-again six year relationship that produced a daughter in 2000. In January 2004, Moore ended the relationship, although she remained in contact with appellant, particularly with respect to child care and custody issues. At that time, Moore was living in an apartment complex in the City of Alameda. Appellant helped Moore move into the apartment five months earlier, and she had given him a key during the move, but later got the key back from him and gave it to one of her daughters.
To enter Moore’s apartment two keys were required – the first to enter the apartment complex, which had doors that remained locked, and the second to enter her apartment. A person without a key would have to use a key pad outside the entrance to the complex to call Moore’s apartment to be “buzzed in.” The person would then have to gain entry to the door of Moore’s individual apartment. Moore’s apartment had two doors – a screen door and a wooden door.
The apartment complex could be entered from a parking lot, which was surrounded by a six-foot gate opened with a gate opener.
At lease twice before the night in question, appellant had arrived at Moore’s apartment door without having called her apartment to be buzzed into the complex. On one of these occasions, appellant told Moore that a neighbor had let him into the complex.
B. The Day of the Crimes.
On February 13, 2004, Moore spent time with Jerry Fairley, whom she had met the previous day. Moore also spoke with appellant several times by telephone. Appellant had repeatedly called to ask Moore to spend Valentine’s Day with him, but she had declined, telling him their relationship was over. At 4:30 p.m. that day, Moore and Fairley went to her apartment to be alone. At about 6:15 p.m., appellant called to ask Moore to come to his house. At that time, appellant began calling about every 10 to 15 minutes. At some point, appellant heard Fairley’s voice in the background and demanded to know who she was with. Moore said she had a house guest, but did not disclose Fairley’s name. Appellant’s calls became more frequent, tying up both her cell phone and her house phone. To get appellant to stop calling, Moore eventually told him she would come to his house, although she had no intention of doing so. Fairley asked Moore if she wanted him to talk to appellant, but she declined.
Ultimately, phone records revealed appellant called Moore from his cell phone 24 times between 7:51 p.m. and 11:04 p.m. At one point, appellant told Moore he was outside her apartment in his truck and could see what she was doing. Later, during the last call, appellant told Moore he was in San Francisco at his son’s game, but Moore knew he was lying and told him so.
Three or four minutes after appellant’s last call, Moore, who was in bed with Fairley, heard a knock at the front door. Moore went to the door dressed in only her robe, and tried unsuccessfully to see who was there by looking through the front door peep hole and through the window in her kids’ bedroom. Moore then asked who was there, and a voice replied, “Management.” She repeated her question, and the voice repeated, “Management.”
Moore then opened the door, keeping her foot at the bottom of the door. Appellant immediately placed his foot in the opening and blocked Moore, who was trying to close it. Appellant threw open the door, causing Moore to fly backwards. He then came toward her with a knife in his raised hand, saying: “Now what, [expletive].” Appellant proceeded to stab Moore on the left side of her chest and, when she tried to escape while simultaneously warning Fairley that appellant had a knife, he stabbed her several more times in the abdomen, chest, arms and back. Moore also sustained numerous abrasions and other wounds as she tried to stop appellant. Eventually, the knife’s handle fell off, but appellant did not stop stabbing Moore until she fell to the ground, at which point he went toward the bedroom. At that point, Moore, who was gushing blood and thought she was dying, got off the floor and locked herself in the kids’ bathroom.
When appellant first entered the apartment, Fairley was undressed and in bed. After hearing Moore’s screams, however, Fairley got out of bed and began putting on his pants. At that point, appellant appeared at the bedroom door, bringing the knife blade toward Fairley with his raised hand. Fairley struggled with appellant and was able to knock the blade away, but in doing so he sustained a knick on his face and an injury to his shoulder. Then, when Fairley went to retrieve the fallen blade, appellant kneed him in the groin and fled the room. Fairley tried to chase after him, but was slowed by the groin injury, and appellant jumped over the railing and down the stairs to escape.
When Fairley returned to the apartment distressed and yelling for help, he could not find Moore. Fairley then saw blood coming from below the bathroom door, and so knocked, pleading with Moore to open it. Eventually, Moore realized it was Fairley and not appellant, so let him in. Fairley called 911, but was so panicked and hysterical that Moore had to speak to the dispatcher. Moore relayed the relevant details of the attack in a 911 call made at 10:01 p.m. that lasted about three minutes, by which time Officer Eric Klaus had arrived at the scene.
Officer Klaus found Fairley standing in the middle of the apartment screaming and Moore speaking to her eldest daughter, Caron, on the telephone, covered in blood. Just after Moore ended the call with her daughter, appellant called her, and Officer Klaus heard Moore tell him: “[Expletive], you just stabbed me.” A police officer told Moore to hang up, and she did, but, according to phone records, appellant then called back three or four more times between 10:08 p.m. and 10:10 p.m.
Moore called her daughter immediately after hanging up with the 911 dispatcher and told her that appellant had stabbed her. Moore explained that, if she died, she wanted her daughter to know what had happened.
C. Events Following the Crimes.
Between 10:00 p.m. and 10:30 p.m. on the night in question, Julie F. saw appellant, whose face was shiny with sweat, run diagonally across the street in front of her car as she was driving to a friend’s house. Later that night or the next day, police showed Julie F. appellant’s photo, and she responded that she was certain he was the person she had seen. On March 6, 2004, Julie F. participated in a police line-up and could not positively identify appellant as the person she had seen in front of her car, but indicated by writing a question mark that it could have been appellant or another individual. At trial, Julie F. positively identified appellant as the person she saw in front of her car on the night in question.
Before being taken to the hospital, Moore told police that appellant had stabbed her, and gave them appellant’s contact information. At the hospital, Moore was treated for a six-inch stab wound to her upper left arm, a two-inch stab wound to her left abdomen, and stab wounds to her upper left chest and back. Moore also sustained several bruises and abrasions. Moore had surgery to repair the more serious injuries, which included an operation on her stomach and removal of part of her colon. She remained in the hospital for eight days.
Police officers later found a knife blade in the bathroom, a knife handle on the kitchen floor, and a butter knife and some pieces of plastic that could have been part of a knife handle in the entryway. Police also photographed Fairley’s injuries, which included cuts or scratches on his cheek, left shoulder, armpit, back, chest and right thumb. A physician at the hospital told Officer Klaus that Fairley had also sustained an injury to the groin area.
They also discovered a few days later that the tires on Moore’s car had been slashed while parked in the garage of the apartment complex.
Fairley, who had never seen appellant or his photograph before the incident, later identified appellant as his attacker in a photo lineup, in an actual lineup and at trial.
On the night of the crimes, Fairley was initially unable to give a description of the attacker. In addition, at the actual line-up, Fairley also placed a question mark above the entry for another individual.
Phone records from appellant and from Friendly Cab Transportation, appellant’s employer, reflected that appellant called for a cab at 10:15 p.m. on February 13, 2004, for immediate pickup from an address about one mile from Moore’s apartment. A cab was dispatched to that location and the cab’s meter was turned on at 10:19 p.m., but then turned off at 10:20 p.m. Cab records did not show where appellant was dropped off and the driver did not remember the call or why the meter was turned off.
On February 17, 2004, appellant was arrested at his residence. A search of the premises revealed red roses in the refrigerator, shredded red roses in the trash can, and a Valentine’s Day card addressed to Moore, stating: “You will never know just how special you R 2 me. I love U.”
D. Appellant’s Prior Acts of Domestic Violence.
Moore, as well as two other of appellant’s former girlfriends, testified regarding appellant’s prior acts of domestic violence against them.
II. The Defense’s Evidence.
A. Appellant’s Relationship With Moore.
Appellant, testifying in his own defense, described his volatile, on-again-off-again relationship with Moore, which he claimed to have ended in January 2004. Appellant painted Moore as a jealous, moody, sometimes violent person who was never pleased and who isolated him from his family and friends. Appellant claimed their relationship “took a turn” when Moore discovered he was having a child with another woman, Crystal J. Appellant claimed that, since his breakup with Moore, he had begun to put his life back together.
Appellant admitted prior convictions for felony grand theft, unlawful taking of a car or receipt of stolen goods, and misdemeanor domestic violence.
Soon after their breakup, Moore called appellant to tell him she was sleeping with someone else. She then asked for money for their daughter, to which appellant responded, “get it from the [expletive] you was with.” Generally, however, appellant had no problem with Moore seeing other men, and held no animosity toward them. According to appellant, Moore repeatedly called to ask him to watch the kids while she went out of town for Valentine’s Day, but he declined.
B. The Day of the Crimes.
On February 13, 2004, appellant worked at Friendly Cab until noon, then stopped on his way home to buy two dozen roses for Flachez Bush, one dozen roses for Moore, one stuffed animal for Bush and one for himself, and three bottles of wine for Bush and one for himself. Bush and appellant had known each other for nine years, and were having an intimate relationship.
Once home, appellant had a glass of wine and a beer, and then called Moore to see if she was going to his son’s basketball game, as she had promised. Moore replied that she was going to a funeral, and asked appellant to call her later to remind her. Appellant then spent from 2:00 p.m. to 4:00 p.m. with Bush at her home.
Appellant told Sergeant Dwyer on February 17, 2004, that he mentioned to Moore on the phone at this time that he had roses for her, but denied doing so at trial, and explained he was nervous during the police interview, so may have misspoke.
Appellant called Moore’s cell phone at about 7:30 p.m., speaking to her for about two minutes regarding his son’s game. He called her again two minutes later from Walgreen’s, but did not reach her and did not leave a message.
Appellant returned home just after 8:00 p.m. At about 8:20 p.m., appellant called Moore from his home phone and they had a friendly conversation lasting about ten minutes. Appellant then left his home and called Moore again from his cell phone to continue their conversation, talking for another ten minutes as he walked to Bush’s home, about six blocks away.
On direct examination, appellant testified they discussed his son’s game during this call, but on cross-examination he said they discussed Moore’s brother.
Appellant arrived at Bush’s home about 8:45 p.m. and left 25 minutes later to go to Walgreen’s. A short time later, Bush left her home to play pool with her sister. Appellant called Moore at 9:10 p.m. from Walgreen’s and then again at about 9:15 p.m. after leaving another store across the street from Walgreen’s, both times discussing Moore’s brother.
Appellant admitted on cross examination telling Sergeant Dwyer on February 17, 2004, that he arrived at Bush’s home at 9:00 p.m. and stayed all night, and that Bush left about 11:00 p.m. to play pool. Appellant explained that he was nervous and had misunderstood Sergeant Dwyer’s questions.
Appellant arrived home about 9:25 p.m. and stayed there until about 10:25 p.m. He called Moore from his cell phone when he first got home, and they discussed her brother again for about ten minutes. Afterwards, appellant called Moore several more times from his cell phone because she kept telling him to hold on, but her house phone would then disconnect, so he’d call again. At this point, appellant was using both his cell phone and house phone to call Moore because “When I tried to call her on her house phone, I kept getting the answering service. So I called her on the cell phone and said, ‘You know, something’s wrong with your phone. Every time you put me on hold, it hangs up.’ ”
Appellant reached Moore on his cell phone at about 9:40 p.m., talking to her for five to ten minutes, and then again at about 9:50 p.m., talking to her for three to five minutes in a friendly manner about retrieving some of his clothes from her apartment. During that call, appellant heard a man talking in the background, and he told Moore, again in a friendly manner, that he’d call her back as he did not realize she had company.
Appellant called Moore again from his cell phone at 9:55 p.m. to discuss retrieving a bike he had left at her apartment, which Moore offered to bring to him within an hour. During this call, appellant heard Moore say to someone, “I pay the [expletive] bills here and I talk to whoever the [expletive] I want to talk to.” Appellant was not surprised by Moore’s changed mood because it was consistent with her character.
Appellant did not talk to Moore again until 10:07 p.m., when he called her again on his cell phone (and several additional times afterwards) to discuss her delivery of his bike.
Appellant did not mention his efforts to retrieve his bike to Sergeant Dwyer on February 17, 2004.
Appellant denied having called for a cab on the night of February 13, 2004, but said he had called his employer, Friendly Cab, from his cell phone to report he would not appear for work the next day.
Appellant remained at his house until about 10:30 p.m., when he left for Bush’s house. On the way there, appellant called four people – Bush to tell her he would be there soon, his son in San Francisco, Moore on both her cell phone and house phone to report the outcome of his son’s game, and his employer to confirm receipt of his earlier message that he would not be working the next day.
After arriving in front of Bush’s house, appellant called Moore twice, at 11:04 p.m. and 11:06 p.m., to see whether she had gone to his house to deliver the bike.
At 11:28 p.m., Moore’s eldest daughter, Caron, called appellant to ask whether he had seen Moore. Appellant told her that Moore was at home, waiting for her call. Appellant called Caron four times between 11:30 p.m. and 11:34 p.m., explaining that her call had been dropped and that he was trying to reach her again to discuss his bike. Appellant then called Moore’s mother at 11:35 p.m., talking to her for 11 minutes while he was still outside Bush’s house to discuss her son’s fiancée.
At about 11:45 p.m. or 11:50 p.m., Bush arrived at her house, and she and appellant went inside, sat down, had a few drinks, and then had an “intimate relationship.” During this time frame, appellant also made several cell phone calls.
Bush recalled on direct examination that appellant was at her house when she arrived home at 11:30 p.m. or 11:45 p.m., but testified on cross-examination that appellant had arrived about a minute after she did. She recalled that appellant had brought beer to her house and did not seem upset or nervous. The couple had some drinks and then engaged in intercourse. Afterward, they showered, and Bush saw no injuries on appellant.
At 11:46 p.m., appellant called directory assistance asking for the number to an Alameda hospital or Alameda hospice because he had received a message on his home answering machine to call there. Appellant was given the number for the emergency room, which he called, asking whether someone had called him from there and being told no. Appellant then called directory assistance again at 11:48 p.m., requesting the number for a Hayward hospital, which he called, leaving a message without speaking to anyone (although the call lasted four minutes). At 11:52 p.m., appellant unknowingly called Highland Hospital because he had received a call from there on his cell phone. He did not speak to anyone.
Between 11:53 p.m. and 11:58 p.m., appellant called Caron twice and Moore’s mother three times, but did not reach them. At 11:58 p.m., appellant made a two minute call to Highland Hospital because the number kept appearing on his cell phone. Appellant asked whether someone there was trying to contact him, and was told no.
Appellant did not mention these calls to Highland Hospital to Sergeant Dwyer because it did not dawn on him to do so.
Appellant called Caron again at 12:15 a.m., but again did not reach her.
At 1:04 a.m., appellant called Bush, who had gone to the store, to ask that she buy him a Pepsi. On direct examination, Bush confirmed she left her house around that time to go to the store, and that appellant called her while she was out. On cross examination, however, Bush said she went to the store with her sister before returning home that night, and that she did not leave home again after appellant arrived.
C. The Days Following the Crimes.
On February 14, 2004, appellant called in sick and spent the day with Bush. In the afternoon, appellant went to his house to pick up gifts for Bush, calling Bush from there at 4:27 p.m. before returning to her house to enjoy the rest of the day. At 7:15 p.m., appellant drove his sister to the airport in her car.
On February 15, 2004, appellant left Bush’s house to take the bus to work at 6:15 a.m., returning there after work at 12:45 p.m. He was still wearing the same clothes, which Bush washed for him. Appellant called his employer at 6:28 p.m., 8:22 p.m. and 8:45 p.m., and was told during the 8:22 p.m. call by a dispatcher that his name was in the newspaper. Appellant then walked with Bush to the BART station to buy the newspaper, which had an article stating that he was last seen fleeing his former girlfriend’s apartment at about 12:15 a.m. on February 14, 2004. Appellant, shocked by this news, then returned to Bush’s house to spend the night.
Bush testified that she did not recall appellant working during the period from February 13 to February 17, 2004, and that appellant was with her for “five whole days.” Bush did not recall telling police on February 17, 2004, that appellant had worked on February 15, 2004, and found it sneaky and insulting that the police had videotaped their conversation. On redirect, Bush testified that a stroke she had suffered in 2006 affected her memory.
On February 16, 2004, appellant called the police, arranging to meet Sergeant Dwyer at his house the next morning. Appellant thus left Bush’s house to meet Sergeant Dwyer the next morning, remaining at home until 9:29 a.m., when he went around the corner and was arrested.
A subsequent police investigation failed to uncover identifiable fingerprints on the weapons taken from the crime scene. The blade recovered from the scene was from an Ecco brand knife, however a search of appellant’s residence failed to reveal any other Ecco brand knives, or any traces of blood on items in the residence, including on appellant’s work uniform.
Blood was found, however, on both of Fairley’s pant legs.
A police dog exposed to items with appellant’s scent found in his residence failed to locate a scent trail anywhere in the area of Moore’s apartment.
D. Appellant’s Prior Incidents of Domestic Violence.
Appellant acknowledged his involvement in prior incidents of domestic violence. Following a 1999 incident of domestic violence involving a former girlfriend, appellant was ordered to take anger management classes. After completing 36 such classes, appellant was charged for an incident involving Moore, requiring him to start the classes over again.
The latter incident involved an accusation by Moore that appellant had stabbed her with a knife after she accused him of drinking her wine and having a hickey on his neck. Appellant explained that, during the altercation, Moore began throwing flower pots at him, at which point he noticed a knife on the porch and asked why it was there: “Ms. Moore was standing at the sink drinking the rest of her beer. And as I was putting the knife in the sink, Ms. Moore grabbed me with her left hand. I couldn’t let the knife go. [¶] My other hand was interlocked with her fingers, so when I told her, I said, ‘I’m trying to put this knife down.’ [¶] Her finger started sliding down the knife. [¶] I said, ‘Look, you’re cutting yourself. You’re bleeding.’ [¶] We went from the kitchen to the bathroom and I was trying to find some band aids. Her sisters showed up [and thought he had cut Moore.]” The police later came to appellant’s house, and he did not open the door. As a result, his probation was revoked, he was ordered to take more anger management classes, and he was sentenced to 30 days.
On two other occasions, appellant was arrested for domestic violence following altercations with Moore. In August 2001, Moore became angry when she went to appellant’s house and found him with another girlfriend. Appellant’s girlfriend and Moore had words and, according to appellant, when he then asked Moore to leave, she pulled a railing out of his wall, threw food at him, pulled a fish tank off the wall and bit him twice. After Moore left, she called the police to appellant’s house. Appellant explained to the police what had happened, but they arrested him anyway.
On another occasion, Moore again found appellant at his house with his other girlfriend. The two women again exchanged words and, when appellant asked Moore to leave, she hit him in the eye with a squeegee and hit him with a boot. Appellant was again arrested after telling his roommates to call the police.
In addition, on two occasions, appellant filed police complaints against Moore. During the first, in 2001, Moore had come to appellant’s house to pick up his daughter’s laundry, and became angry when he would not let her use a video game system. Moore accused appellant of calling her the wrong name, and began slapping him, refusing to leave until he threatened to call the police (which he eventually did). During the second incident, in 2002, Moore again became angry after accusing appellant of calling her the wrong name. She began throwing things at him and refused to leave until he again threatened to (and did) call the police.
Bush testified that appellant had never hit or assaulted her, and that she had never seen appellant assault Moore.
A domestic violence expert testified that men and women frequently file false police complaints against their spouse or partner for reasons including jealousy and retaliation. The expert further testified that it was possible for a female spouse to falsely accuse her partner of committing a heinous crime as a way of exercising control, although he had seen few incidents of that nature. Further, the expert opined that in cases of domestic violence, it is twice as likely for a female victim to experience injuries as a male victim.
E. Testimony Regarding Moore’s Character.
Bush testified regarding an incident when she had been with her sister at appellant’s house when Moore was there. Bush’s sister and appellant had an altercation, during which her sister tried to burn appellant with a cigarette and he slapped her. The police were called and appellant was arrested when, according to Bush, Moore made a false statement to police regarding the incident.
Appellant’s aunt testified that Moore had told her that appellant claimed she sexually molested him when he was a boy. Both appellant and his aunt denied that any sexual molestation had occurred, and appellant claimed he never told Moore otherwise. Appellant’s cousins testified that appellant became isolated from his family due to Moore’s lies about his aunt.
III. The Verdict and Sentencing.
On June 5, 2007, the jury found appellant guilty on all four counts, found true the enhancements for personal infliction of great bodily injury and use of a deadly weapon, and found true that appellant had suffered a prior conviction for a violation of section 273.5 within the past seven years. Following a bench trial, the trial court found that appellant had sustained five prior convictions and had served three prior prison terms.
On October 12, 2007, the trial court sentenced appellant to a total of 21 years to life in state prison consecutive to a determinate term of ten years. Specifically, as to count 1 (willful, deliberate and premeditated attempted murder), the trial court imposed an indeterminate term of 15 years to life, plus six years for the great-bodily-injury and use-of-a-deadly-weapon enhancements, for a total indeterminate term of 21 years to life to run consecutively to the determinate term imposed with respect to counts 2 through 4. With respect to counts 2 through 4 (assault with a deadly weapon, first degree burglary and corporal injury to a spouse), the trial court deemed count 3 (first degree burglary) as the principal term and imposed the upper term of six years. The trial court then imposed a consecutive one-year term for count 2 (assault with a deadly weapon), representing one-third the midterm. The trial court imposed, but stayed pursuant to section 654, the midterm of three years for count 4 (corporal injury to a spouse), plus five years for the great bodily injury enhancement and one year for the use of a deadly weapon enhancement. The trial court also imposed one-year sentences for each of the three prior prison terms, for a total determinate term of ten years. This appeal followed.
DISCUSSION
Appellant raises several arguments on appeal. First, with respect to the conduct of the trial itself, appellant claims the trial court erred in excluding evidence of Fairley’s prior acts of violence, the circumstances of Fairley’s death, and complaints Moore made against Fairley following the crimes at issue here. Second, with respect to sentencing, appellant claims the trial court erred in (1) failing to stay the burglary count pursuant to section 654 or, alternatively, relying upon impermissible factors in imposing the upper term sentence on the burglary count; (2) finding true three prior prison terms within the meaning of section 667.5, when in fact there was only one; (3) failing to state on the record its reasons for imposing the upper term sentence on the great bodily injury enhancement; (4) failing to state on the record its reasons for imposing the sentence on the assault count consecutively to the sentence on the burglary count; and (5) failing to state on the record its reasons for imposing the determinate term sentence consecutively to the indeterminate term sentence.
We address each claim in turn.
I. Exclusion of Evidence Regarding Fairley.
Appellant’s defense at trial was that Fairley, not he, committed the crimes against Moore, and that Moore falsely accused him of the crimes for reasons of jealousy and retribution. Based upon his defense, appellant claims the trial court committed prejudicial error in excluding evidence of Fairley’s prior acts of violence, the circumstances of his death, and complaints Moore made against him following the crimes at issue here. Appellant reasons that the evidence regarding Fairley’s propensity for violence would have raised a reasonable doubt as to appellant’s guilt, and thus that its exclusion was highly prejudicial.
A trial court is granted wide discretion in deciding the admissibility of evidence. (People v. Kelly (1992) 1 Cal.4th 495, 523.) As such, on appeal, we reverse a trial court’s decision to admit or exclude evidence only if the defendant establishes an abuse of discretion. (People v. Rowland (1992) 4 Cal.4th 238, 264.) An abuse of discretion is established only where the trial court acts in an arbitrary or irrational manner, exceeding all bounds of reason. (People v. Preyer (1985) 164 Cal.App.3d 568, 573-574.)
Further, “[o]nly relevant evidence is admissible. (Evid. Code, § 350.) Evidence is relevant if it has ‘any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ (Evid. Code, § 210.) ‘The test of relevance is whether the evidence tends “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive. [Citations.] The trial court retains broad discretion in determining the relevance of evidence.’ (Citations.)” (People v. Cunningham (2001) 25 Cal.4th 926, 995.)
Character evidence is generally inadmissible to prove a person acted in conformity with a character trait on a particular occasion. (Evid. Code, § 1101, subd. (a).) There is an exception to the general prohibition against character evidence, however, under Evidence Code section 1103, which provides that “In a criminal action, evidence of the character or a trait of character . . . of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is [¶] [o]ffered by the defendant to prove conduct of the victim in conformity with the character or trait of character.” (Evid. Code, § 1103, subd. (a)(1).)
However, “ ‘evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant’s guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352. [Citations.]’ [Citations.]” (People v. Cunningham, supra, 25 Cal.4th at p. 996.)
Evidence Code section 352 provides that “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
Here, appellant challenges the trial court’s exclusion of the following evidence: (1) the circumstances of Fairley’s death by gunshot before trial by an unknown assailant, including the fact that his body was found next to an ice pick; (2) records of Fairley’s arrest in 1982 for attempted murder, although charges in the case were never brought; (3) an FBI report indicating that Fairley may have been involved in an aggravated assault in Mississippi, although neither party was able to find any record of the offense; and (4) sealed police records of complaints Moore may have filed against Fairley after the crimes at issue here.
At trial, the court determined that Fairley was unavailable to testify, allowed his testimony from the preliminary hearing to be read to the jury, and advised the jury not to speculate why he was unavailable to testify in person. In addition, the trial court admitted evidence that Fairley had been convicted of felony assault in 1980, felony gun possession in 1982, and felony assault in 1989. The trial court reviewed in camera the police reports of Moore’s alleged complaints about Fairley before ruling to exclude them.
Applying the evidentiary principles set forth above, we conclude this evidence regarding Fairley was properly excluded by the trial court. In particular, with the possible exception of the sealed records of complaints Moore may have made against Fairley, none of the excluded evidence was relevant to the issues before the jury because it did not link Fairley – directly or circumstantially – to the actual perpetration of the attack on Moore. Rather, the evidence related to Fairley’s alleged involvement in crimes – in one case as a victim rather than perpetrator – under unrelated, remote or undeterminable circumstances. As such, the evidence was insufficient to raise a reasonable doubt as to his guilt in this case. (People v. Cunningham, supra, 25 Cal.4th at p. 996.)
Moreover, evidence that Fairley was the victim of a violent crime that led to his untimely death prior to trial in no way demonstrated that he had the propensity to commit violent crimes such as those committed in this case. (Evid. Code, § 1103, subd. (a)(1).) The same is true for evidence of Fairley’s arrest for attempted murder 25 years ago, because no charges were brought against him, and he was never convicted in the prior case.
With respect to the FBI report indicating Fairley may have been involved in an aggravated assault in Mississippi, the evidence offered, like that of his arrest 25 years ago, failed to confirm that an offense had actually been committed by Fairley. As such, like the evidence of his prior arrest, the evidence of Fairley’s possible aggravated assault was far more prejudicial than probative. (Evid. Code, § 352; People v. Mincey (1992) 2 Cal.4th 408, 442 [a defendant’s right to present a defense “do[es] not include a right to present to the jury a speculative, factually unfounded inference”].)
Finally, with respect to complaints Moore may have subsequently filed against Fairley, we again conclude the evidence was properly excluded pursuant to Evidence Code section 352. At trial, appellant claimed such evidence was relevant to prove Moore’s propensity for filing false police reports to retaliate against her boyfriends when she failed to get her way. The trial court reviewed the sealed records of the complaints in camera, and then excluded them as irrelevant.
Moore testified on cross-examination that her relationship with Fairley “ended up quite badly.”
On appeal, appellant argues for the first time that the evidence of the possible complaints is relevant to prove Fairley’s propensity for violence in addition to Moore’s propensity for filing false police reports. As the People point out, however, there is nothing in the record indicating what information was actually contained in those complaints. “An appellate court may not reverse a judgment because of the erroneous exclusion of evidence unless the ‘substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means.’ ” (People v. Livaditis (1992) 2 Cal.4th 759, 778.) Given the lack of information in this record, we, like the Livaditis court, find no basis for reversing the judgment.
Moreover, even if such evidence was otherwise admissible, “mini-trials” on the complaints’ accuracy and relevance would likely have been required, necessitating an undue consumption of time and creating a substantial danger of confusing the issues or misleading the jury. (People v. Chandler (1997) 56 Cal.App.4th 703, 707-708 & fn. 4) This is particularly true given Fairley’s death, which rendered him unable to defend himself against Moore’s alleged complaints. Under these circumstances, the trial court acted within its discretion in excluding the evidence.
Accordingly, for the reasons stated, we conclude the trial court’s exclusion of the above-described evidence provides no basis for reversing the judgment.
Appellant makes an additional argument that the trial court’s error in excluding the evidence regarding Fairley was compounded by its admission of hearsay evidence regarding the groin injury Fairley allegedly received from appellant during the attack. Because we have concluded that the trial court did not so err, we need not address appellant’s related argument.
II. The Trial Court’s Sentencing Decisions.
A. Declining to Stay the Sentence Imposed for Burglary (§ 654).
Appellant next claims the trial court erred by imposing separate sentences for the attempted murder of Moore and for the first degree residential burglary. Appellant reasons that both crimes were committed pursuant to a single objective and intent within the meaning of section 654 and, thus, that sentencing with respect to the burglary count should have been stayed.
Section 654 provides in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” (§ 654, subd. (a).)
According to well-established California law, section 654, subdivision (a), permits multiple convictions, but precludes multiple punishments, for a single indivisible course of criminal conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208; Neal v. State of California (1960) 55 Cal.2d 11, 18-19 (Neal).) “ ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of [Penal Code] section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ (Neal, supra, 55 Cal.2d at p. 19, italics added.)” (People v. Latimer, supra, 5 Cal.4th at p. 1208.)
On appeal, the reviewing court affirms a trial court’s findings regarding the divisibility of a course of conduct so long as the finding is supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
Here, over a defense objection, the trial court sentenced appellant to an indeterminate term of 21 years to life for the attempted murder count (plus two enhancements), and to an additional aggravated determinate term of six years for the burglary count. The trial court reasoned: “[Appellant] took the stand and denied all of the allegations, so the intent can be – we don’t know what the intent is. It could be a myriad of intents.”
On appeal, appellant contends the sentence with respect to the burglary count should have been stayed pursuant to section 654 given that it was carried out as part of an indivisible course of conduct and with the same objective as the attempted murder count. The People, to the contrary, contend the trial court’s sentencing in this regard was proper because both crimes – the attempted murder committed against Moore and the burglary committed against both Moore and Fairley – involved at least one separate victim, and thus fell within the multiple victim exception to section 654. The People concede, however, that appellant’s consecutive one year sentence with respect to the assault count, which was also committed against Fairley, should have been stayed pursuant to section 654, given the sentence that was already imposed with respect to the burglary count, which carried “the longest potential term of imprisonment.” (§ 654) We agree with the People.
Section 654 does not bar multiple punishments where the defendant’s indivisible course of conduct has two results, each of which is an act of violence against a separate individual, even if the defendant had but a single criminal objective. (Neal, supra, 55 Cal.2d at pp. 20-21; People v. Deloza (1998) 18 Cal.4th 585, 592.) This is known as the multiple victim exception to section 654’s prohibition against multiple punishments for a single act, and is consistent with the statute’s purpose of ensuring that “punishment is commensurate with [a defendant’s] criminal culpability.” (Neal, supra, 55 Cal.2d at pp. 20-21; People v. Alvarado (2001) 87 Cal.App.4th 178, 196.)
Generally, “even though it holds the potential for violence, ‘[b]urgary, standing alone is not a violent crime for purposes of the multiple victim exception.’ (People v. Centers (1999) 73 Cal.App.4th 84, 99 . . . .) Burglary, as defined, simply does not require an act of violence committed with the intent to harm or by means likely to harm a person.” (People v. Hall (2000) 83 Cal.App.4th 1084, 1090-1091.) However, when burglary is committed in conjunction with an act of violence qualifying as an enhancement – such as personal infliction of great bodily injury (§ 12022.7, subd. (e)) or personal use of a deadly weapon (§ 12022, subd. (b)(1)) – such crime does fall within the multiple victim exception, and is thus subject to multiple punishments under section 654. (People v. Hall, supra, at p. 1091.) Moreover, section 654 does not bar punishment for both burglary and a crime committed after entry into the residence if a defendant entertained multiple objectives. (People v. Booth (1988) 201 Cal.App.3d 1499, 1502, 1505 [holding that the defendant entered into the residence with two objectives – to rape and to steal]. Cf. People v. McElrath (1985) 175 Cal.App.3d 178, 191 [holding that the defendant entered into the residence with the sole intent to commit sexual offenses where no evidence suggested otherwise].)
Here, as the People argue, the jury’s finding reflects that both Moore and Fairley were victims of the burglary, and that, in the course of the burglary, appellant committed two separate acts of violence – attempted murder against Moore and assault against Fairley with a deadly weapon (to wit, the knife).
Appellant disagrees, claiming the multiple victim exception to section 654 is inapplicable because (1) no enhancements were alleged with respect to the burglary count and, thus, the burglary cannot be deemed an act of violence and thus subject to the multiple victim exception (cf. People v. Hall, supra, 83 Cal.App.4th at p. 1091), and (2) even if the burglary was deemed an act of violence, it was committed during the same course of conduct as the attempted murder and against a single victim (Moore). (People v. Miller (1977) 18 Cal.3d 873, 886.)
Appellant notes that the enhancements for personal infliction of great bodily injury (§ 12022.7, subd. (e)) and for personal use of a deadly weapon (§ 12022, subd. (b)(1)) were alleged as to attempted murder (count 1) and corporal injury (count 4), but not as to burglary (count 3) or assault (count 2).
First, we have no doubt that the burglary committed by appellant in this case was an act of violence. Indeed, in rendering the guilty verdict on the burglary count, the jury expressly found that appellant entered into Moore’s residence “with the specific intent to commit attempted murder and/or assault with a deadly weapon or force likely to produce great bodily injury.” Further, after entering Moore’s apartment, appellant engaged in just those violent acts against two separate victims – attempting to murder Moore and assaulting Fairley with a deadly weapon. As such, we agree with the People the burglary involved acts of violence and had multiple victims – Moore and Fairley.
In so concluding, we reject appellant’s claim that no burglary could have been committed against Fairley because he did not reside in or hold a possessory interest in the apartment that was broken into. Specifically, we do not believe that, to be a victim of burglary, a person must be a resident or owner of the inhabited dwelling that was broken into (§ 459), as opposed to a guest or other visitor temporarily residing in that dwelling. “ Burglary laws are ‘ “ ‘ “based primarily upon a recognition of the dangers to personal safety created by . . . the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence.” ’ [Citation.]” ’ (People v. Hughes (2002) 27 Cal.4th 287, 355 [116 Cal.Rptr.2d 401, 39 P.3d 432].)” (People v. Villalobos (2006) 145 Cal.App.4th 310, 317 [emphasis added].) These dangers exist regardless of whether a person in the burglarized dwelling is a permanent or temporary occupant. As the court noted in People v. Villalobos, “If the person is using the structure as a habitation when the burglary or robbery occurs, his possible intent to abandon the habitation in the future does not alter its character as an inhabited dwelling.” (Id. at pp. 320-321 [concluding that burglary was committed where the victims had rented a hotel room, the “inhabited dwelling,” for only two nights]; see also People v. Hughes (2002) 27 Cal.4th 287, 355 [“ ‘[t]he “ ‘ “inhabited-uninhabited” dichotomy turns not on the immediate presence or absence of some person but rather on the character of the use of the building.’ ” [Citation.] “[T]he proper question is whether the nature of a structure’s composition is such that a reasonable person would expect some protection from unauthorized intrusion.” [Citation.]’ ([Citation], italics omitted.)”) As such, Fairley can be deemed a victim of the burglary, regardless of the brevity of his stay as a guest in Moore’s apartment.
However, given our conclusion that Fairley was a victim of the burglary and, thus, that appellant could be sentenced for both the attempted murder and burglary counts pursuant to the multiple victim exception to section 654, we agree that appellant could not also be sentenced for the assault count against Fairley.
Accordingly, we conclude the trial court did not err in imposing separate and unstayed sentences for both the burglary committed against Fairley and the attempted murder committed against Moore, but did err in imposing separate and unstayed sentences for both the burglary and the assault committed against Fairley. As such, as the People concede, the judgment should be modified to stay the consecutive one-year prison term imposed for the assault count.
B. Imposing Sentences for Three Prior Prison Terms (§ 667.5, subd. (b)).
In the information, as amended, appellant was alleged to have served three prior prison terms within the meaning of section 667.5, subdivision (b) – the first in Alameda County following conviction on October 9, 1996 for a section 487(a) violation, the second in San Francisco County following conviction on May 23, 1990 for a Vehicle Code section 10851 violation, and the third in San Francisco County following conviction also on May 23, 1990 for a section 496(a) violation.
Section 667.5 provides in relevant part:
Following a bench trial, the court found true that appellant had served a prison term within the meaning of section 667.5, subdivision (b), with respect to each of the three convictions, and imposed a one-year sentence for each, for a total term of three years to run consecutively to the sentences imposed for burglary (count 3) and corporal injury to a spouse (count 4).
On appeal, appellant claims this ruling was erroneous on two grounds. First, appellant claims he served only one prison term for the two convictions sustained on May 23, 1990, and thus was subject to only one enhancement for a prior prison term pursuant to section 667.5. Second, appellant claims the conviction sustained on October 9, 1996 was subject to the five-year washout period set forth in section 667.5, subdivision (b). According to appellant, the People failed to meet its burden to prove that the washout period did not apply because he sustained another felony conviction or served time in prison custody within five years. Based upon these alleged errors, appellant contends that two of the three one-year sentences imposed for the prior-prison-term enhancement must be stricken.
The relevant law is as follows. “Imposition of a sentence enhancement under . . . section 667.5 requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. [Citation.]” (People v. Tenner (1993) 6 Cal.4th 559, 563.)
The fourth element of the enhancement relates to the “washout rule.” “According to the ‘washout’ rule, if a defendant is free from both prison custody and the commission of a new felony for any five-year period following discharge from custody or release on parole, the enhancement does not apply. (§ 667.5, subd. (b); see also 3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, § 335, p. 433.) Both prongs of the rule, lack of prison time and no commission of a crime leading to a felony conviction for a five-year period, are needed for the ‘washout’ rule to apply. This means that for the prosecution to prevent application of the ‘washout’ rule, it must show a defendant either served time in prison or committed a crime leading to a felony conviction within the pertinent five-year period. (People v. Elmore (1990) 225 Cal.App.3d 953, 957 [275 Cal.Rptr. 315] [‘washout’ period does not apply if defendant committed a new offense resulting in a felony conviction within five years even without a showing he was incarcerated in state prison as a result thereof]; People v. Young (1987) 192 Cal.App.3d 812, 816 [237 Cal.Rptr. 703] [‘We hold that the statute requires a convicted felon to remain free from prison custody and the commission of an offense resulting in a felony conviction for a single, continuous five-year period in order to avoid the enhancement provided in section 667.5, subdivision (b)’]; and People v. Jackson (1983) 143 Cal.App.3d 627, 631 [192 Cal.Rptr. 7] [‘It is self-evident that no five-year period elapsed in which appellant was free from both prison custody and the commission of offenses resulting in felony convictions as required by section 667.5, subdivision (b) in order to avoid enhancement’].).” (People v. Fielder (2004) 114 Cal.App.4th 1221, 1229.)
“Due process requires the prosecution to shoulder the burden of proving each element of a sentence enhancement beyond a reasonable doubt. [Citations.]” (People v. Tenner, supra, 6 Cal.4th at p. 566.) On appeal, we must determine whether the record contains substantial evidence that the prosecution has sustained this burden. (Id. at p. 567.)
Having set forth the applicable law, we first address the People’s claim that appellant waived the right to challenge any sentencing error pursuant to section 667.5 by failing to do so below. We disagree. As the California Supreme Court has explained, the waiver rule generally prohibits a defendant from challenging a trial court’s sentencing decision for the first time on appeal, except where such decision results in an “unauthorized sentence.” (People v. Scott (1994) 9 Cal.4th 331, 353-354.) “Although the cases are varied, a sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is ‘clear and correctable’ independent of any factual issues presented by the record at sentencing. [Citation.] As defendant suggests, legal error resulting in an unauthorized sentence commonly occurs where the court violates mandatory provisions governing the length of confinement.” (Ibid.)
“It does not follow, however, that nonwaivable error is involved whenever a prison sentence is challenged on appeal. (Cf. § 1238, subd. (a)(10) [People’s right to appeal ‘unlawful sentence’ includes any sentence ‘not authorized by law,’ but excludes court’s ‘choice’ of the lower, upper, or middle term or consecutive terms of imprisonment.].)” (People v. Scott, supra, 9 Cal.4th at p. 354.) To the contrary, “claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (Ibid.)
Here, we conclude appellant has not waived the right to challenge the three one-year sentences imposed for the prior prison term enhancements because a sentence imposed in violation of section 667.5, as appellant contends, would be legally unauthorized. As other courts have held, “[t]he failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal.” (People v. Bradley (1998) 64 Cal.App.4th 386, 391; see also People v. Irvin (1991) 230 Cal.App.3d 180, 190 [“We therefore conclude that the failure to impose the one-year enhancement or to strike it pursuant to section 1170.1, subdivision (h) resulted in a sentence unauthorized by law and that the case should be remanded so that the court may make a proper sentencing choice.”]; People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311.) We thus turn to the facts relevant to appellant’s challenge.
First, the trial court imposed two one-year sentences with respect to appellant’s imprisonment for convictions on May 23, 1990 for violations of section 496(a) and Vehicle Code section 10851. Appellant contends the trial court’s ruling was erroneous because he served one prison term, not two, for those two convictions occurring on the same day, and thus should only have received one prior prison term enhancement. Having reviewed the record, we agree there is no substantial evidence establishing that appellant “was imprisoned as a result of [each of those] conviction[s].” (People v. Tenner, supra, 6 Cal.4th at pp. 563, 567.)
Second, the trial court imposed another one-year sentence with respect to appellant’s imprisonment for his conviction on October 9, 1996 for violations of section 487(a). Appellant contends the trial court again erred because the prosecutor failed to prove the prior prison term fell outside section 667.5’s five-year washout period. (See People v. Fielder, supra, 114 Cal.App.4th at p. 1229 [“for the prosecution to prevent application of the ‘washout’ rule, it must show a defendant either served time in prison or committed a crime leading to a felony conviction within the pertinent five-year period.”].) Again, we agree there is no substantial evidence in the record establishing that appellant “did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction.” (People v. Tenner, supra, 6 Cal.4th at p. 563.)
As we have already stated, “[d]ue process requires the prosecution to shoulder the burden of proving each element of a sentence enhancement beyond a reasonable doubt. [Citations.]” (Id. at p. 566.) Given the lack of evidence in the record that the prosecution met its burden in this case, we conclude the matter must be remanded to the trial court for a new trial and for resentencing with respect to the prior prison term enhancements. (People v. Fielder, supra, 114 Cal.App.4th at pp. 1234-1235 [“Retrial of prior conviction findings is not barred by the state or federal prohibitions on double jeopardy even when a prior conviction finding is reversed on appeal for lack of substantial evidence. [Citations.] We will therefore remand the case for retrial to permit the prosecution to produce adequate evidence to support application of the section 667.5, subdivision (b) enhancement to the prison terms served for the 1985 and 1986 convictions.”])
C. Failing to State Reasons for The Sentencing Choice on the Record.
Appellant next contends the trial court erred by failing to state on the record its reasons for imposing the upper term for the enhancement for infliction of great bodily injury (§ 12022.7, subd. (e)), for imposing the sentence for assault (count 1) consecutively to the sentence for burglary (count 3), and for imposing the determinate sentence (counts 2 through 4) consecutively to the indeterminate sentence for attempted murder (count 1).
The trial court imposed the upper term of five years for the section 12022.7 enhancement to run consecutively to the indeterminate life sentence imposed for attempted murder (count 1). In addition, the trial court imposed the one-year sentence for assaulting Fairley with a deadly weapon consecutively to the six-year sentence for burglary, and ordered that appellant would serve his ten-year determinate sentence for counts two through four consecutively to his indeterminate sentence for count 1, attempted murder. As appellant notes, the trial court did not state its reasons for these sentencing choices on the record.
The People claim appellant waived the right to challenge his sentence based on the trial court’s failure to state its reasons for certain sentencing choices on the record by failing to raise the challenge below. This time we agree.
“[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.” (People v. Scott, supra, 9 Cal.4th at p. 356.) “[T]he waiver doctrine should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.” (Id. at p. 353.)
Accordingly, because appellant has waived review of these alleged errors, we proceed to his next argument.
D. Imposing Upper Terms Based Upon Improper Facts.
The trial court sentenced appellant to the upper term of six years for the burglary count after finding, pursuant to California Rules of Court, rule 4.421, that (1) “this crime involved great violence,” (2) “the victim was particularly vulnerable,” and (3) “the manner in which the crime was committed showed planning and sophistication.”
Appellant claims the trial court’s decision to impose the upper term sentence was improper because it was based on the dual use of facts, on facts that were unsupported, and on facts that were not found true by the jury or established beyond a reasonable doubt (Cunningham v. California (2007) 549 U.S. 270 [Cunningham]). We address each contention in turn.
i. Dual Use of Facts.
In addition to imposing the upper term sentence for burglary, the trial court enhanced appellant’s sentence for attempted murder based upon findings that the crime involved infliction of great bodily injury (§ 12022.7 subd. (e)) and use of a dangerous weapon (to wit, the knife) (§ 12022, subd. (b)(1)). According to appellant, the trial court thus erred by improperly relying upon the same facts – his infliction of great bodily injury, use of a knife, and planning and sophistication – in imposing the upper term for burglary and imposing the two enhancements to the attempted murder sentence. Appellant reasons that the trial court’s finding that the burglary involved “great violence” was based upon the same facts that supported the enhancements for infliction of great bodily injury and use of a knife, and the finding that the burglary involved sophistication and planning was based upon the same facts that supported the indeterminate life term for attempted murder (an element of which was deliberation and premeditation).
“Although a single factor may be relevant to more than one sentencing choice, such dual or overlapping use is prohibited to some extent. For example, the court generally cannot use a single fact both to aggravate the base term and to impose an enhancement, nor may it use a fact constituting an element of the offense either to aggravate or to enhance a sentence. (§ 1170, subd. (b); [Cal. Rules of Court,] rule 420(c) & (d).)” (People v. Scott, supra, 9 Cal.4th at p. 350 & fn. 12.)
A fact charged and found true as an enhancement may be relied upon to impose the upper term only if the trial court has discretion, and exercises that discretion, to strike the punishment for the enhancement. (Cal. Rules of Court, rule 4.420, subd. (c).) (See Historical Note, California Rules of Court (2008 ed.) foll.§ 4.420, p. 198 “Formerly Rule 439, adopted, eff. July 1, 1977. As amended, eff. July 28, 1977. Renumbered Rule 420 and amended, eff. Jan. 1, 1991. Renumbered Rule 4.420, eff. Jan. 1, 2001. As amended, eff. Jan. 1, 2007; May 23, 2007; Jan. 1, 2008.”)
Nonetheless, the existence of a single aggravating factor is sufficient to support a sentencing choice. (People v. Hall (1994) 8 Cal.4th 950, 963-964; People v. Yim (2007) 152 Cal.App.4th 366, 369.) As such, overturning a trial court’s sentencing choice is warranted based upon the improper use of dual facts only where there is no legally permissible factor supporting such choice. (People v. Osband, supra, 13 Cal.4th at pp. 728-729 [concluding resentencing was not required where, given the existence of a single legitimate aggravating factor supporting the upper term, there was no reasonable probability the defendant would have received a more favorable sentence absent the court’s dual use of facts]; see also People v. Coleman (1989) 48 Cal.3d 112, 166.)
Here, even were we to accept appellant’s argument that the trial court could not properly rely upon the factors of great violence and planning and sophistication in imposing the upper term for burglary, there remains one legally permissible factor – the victim’s vulnerability – that supports the trial court’s sentencing choice. There is no dispute that Moore’s vulnerability was relied upon by the trial court in imposing the upper term for burglary but not for the great-bodily-injury and deadly-weapon-use enhancements. As such, even assuming the alleged error, there is no basis for overturning the sentence. (People v. Osband, supra, 13 Cal.4th at pp. 728-729; People v. Coleman, supra, 48 Cal.3d at p. 166.)
Moreover, in any event, we reject appellant’s argument that the trial court also relied upon the fact that the burglary involved planning and sophistication in sentencing him to the indeterminate life term for the attempted murder. True, appellant was found guilty of willful, deliberate and premeditated attempted murder. However, the facts supporting the jury’s attempted murder finding were not necessarily identical to those supporting the trial court’s finding that the burglary was committed with planning and sophistication. Section 189, which defines first degree murder, provides that “To prove the killing was ‘deliberate and premeditated,’ it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.”
As such, here, the trial court could have relied upon evidence indicating appellant’s “mature[] and meaningful[] reflect[ion]” in burglarizing Moore’s residence, but not in imposing the indeterminate life term for his deliberate and premeditated attempted murder of Moore. (§ 189) For example, the trial court could have considered evidence of appellant’s advanced planning in entering the locked door into Moore’s apartment complex without having been given a key, and then his ruse in identifying himself as “Management” in entering the door to Moore’s individual apartment when sentencing him for burglary but not for attempted murder. On the other hand, the trial court could have considered evidence that appellant went to Moore’s apartment with one or more knives when sentencing him for attempted murder.
ii. Unsupported Facts.
In so concluding, we reject appellant’s claims that there was no factual basis for the trial court’s findings of victim vulnerability and planning and sophistication.
A trial court’s findings of circumstances that support an aggravated sentence are reviewed for substantial evidence. (People v. Gragg (1989) 216 Cal.App.3d 32, 46.) “ ‘As used in the context of [California Rules of Court,] rule 421(a)(3), a “particularly vulnerable” victim is one who is vulnerable “in a special or unusual degree, to an extent greater than in other cases. Vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant’s criminal act. . . .” (People v. Smith (1979) 94 Cal.App.3d 433, 436 [156 Cal.Rptr. 502].)’ . . . [¶] (People v. Bloom, supra, 142 Cal.App.3d at pp. 321-322, fn. omitted. . . .)” (People v. Piceno (1987) 195 Cal.App.3d 1353, 1357-1358.) In assessing a victim’s vulnerability pursuant to rule 4.421, we consider “the total milieu in which the commission of the crime occurred,” including both the victim’s personal characteristics and the crime’s setting. (People v. Price (1984) 151 Cal.App.3d 803, 814.)
Planning and sophistication, as used in California Rules of Court, rule [4.]421(a)(8), likewise involves “an exceedingly broad range of conduct.” (People v. Charron (1987) 193 Cal.App.3d 981, 994.) While it is true the factors of planning and sophistication are present in many crimes, the court is permitted to rely on such factors to aggravate a sentence only “if the court is convinced that the level of planning and sophistication, ‘when compared to other ways in which such a crime could be committed’ (People v. Harvey (1984) 163 Cal.App.3d 90, 117 [208 Cal.Rptr. 910]), make the crime committed by the defendant ‘distinctively worse than the ordinary.’ ” (People v. Charron, supra, 193 Cal.App.3d at pp. 994-995.)
Here, the probation report recommended the aggravated term for burglary based on several factors, including victim vulnerability and planning and sophistication, factors which the trial court ultimately relied upon. In doing so, the report noted that Moore was particularly vulnerable because she was in her home at night, in her nightclothes preparing for bed, and that appellant used a ruse to catch her off guard and convince her to open the door in order to execute the attack. Further, appellant’s crime indicated planning, sophistication and professionalism in that he brought his weapon to the scene, somehow bypassed Moore’s locked security door, successfully fled the scene after the crime and then later developed an alibi for the time of the attack.
These facts identified in the report, we conclude, are adequately supported by evidence in the record and, moreover, are sufficient to support the trial court’s decision to impose the aggravated sentence. In particular, Moore was home alone with her lover at night, wearing only a bathrobe and preparing for bed, when appellant forced his way inside after falsely identifying himself as “Management.” Before reaching Moore’s door, appellant somehow managed to bypass the outside doors to the apartment complex, which were always kept locked, and then, afterwards, he escaped without capture and devised a detailed alibi for the relevant time period. Such facts indicate not only Moore’s particular vulnerability on the night in question, but also the crime’s distinctive level of planning and sophistication. (See People v. Alvarado (2001) 87 Cal.App.4th 178, 195 [circumstances supporting a finding that the victim was particularly vulnerable included that the burglary occurred at 10:00 p.m. at night and that the victim was not a big woman and did not speak English]; People v. Charron, supra, 193 Cal.App.3d at p. 995.) Accordingly, appellant’s claim of error on this ground is likewise denied.
iii. Cunningham Error.
Finally, appellant claims the trial court erred by relying upon aggravating factors that were neither submitted to the jury nor proven beyond a reasonable doubt, as required under Cunningham, when sentencing him to the upper term for burglary.
The People, to the contrary, claim this issue is moot due to amendments to California’s Determinate Sentencing Law (DSL) that became effective before appellant was sentenced but after he committed the crimes that cured the DSL’s constitutional defects. We agree.
In Cunningham, the United States Supreme Court rejected the DSL as unconstitutional on the ground that, “under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham, supra, 549 U.S. at p. 281.) The Cunningham decision followed from the high court’s prior decision in Apprendi v. New Jersey (2000) 530 U.S. 466, where it struck down a law providing for an enhanced sentence above the statutory maximum term for the underlying offense, where the sentencing judge determined that the offense was a hate crime. In doing so, the high court reasoned: “ ‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ (Apprendi, supra, 530 U.S. at p. 490, italics added.)” (People v. Sandoval (2007) 41 Cal.4th 825, 835 [Sandoval].)
After Cunningham, the DSL was amended by the Legislature, effect March 30, 2007, to remedy the constitutional defects in the former DSL by eliminating the middle term as the presumptive term and by allowing the trial court to exercise broad discretion in selecting the lower, middle or upper term based upon reasons stated on the record. (§ 1170, subd. (b).)
The amended DSL provides in relevant: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected . . . .” (§ 1170, subd. (b)). See also Cal. Rules of Court, rules 4.406, 4.420, 4.421, 4.423, effective May 2007.)
Thereafter, the California Supreme Court in Sandoval held that the amendments to the DSL addressed the constitutional problems identified in Cunningham. (Sandoval, supra, 41 Cal.4th at p. 844.) The Sandoval court further held that application of the amended DSL, which does not require referring sentencing factors to the jury, in cases where the crime was committed before but sentencing occurred after the amendments’ effective date did not violate ex post facto principles or deny the defendant due process of law. (Sandoval, supra, at pp. 853-857 [“the federal Constitution does not prohibit the application of the revised sentencing process . . . to defendants whose crimes were committed prior to the date of our decision in the present case”].) In doing so, the Sandoval court reasoned that the defendant was on notice that she could receive the upper term for her offense based upon the three possible terms for voluntary manslaughter set forth in the statute, and that the DSL is a procedural rather than a substantive criminal law that can be applied retroactively without violating ex post facto principles if it does not alter substantial personal rights. (Id. at p. 853.)
Here, the trial court sentenced appellant on October 12, 2007, after the effective date of the DSL amendments discussed above. (§ 1170.) We presume the trial court was aware of, and applied, those amendments. (People v. Coddington (2000) 23 Cal.4th 529, 645, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069.) Moreover, appellant was convicted of crimes, which under the Penal Code had three possible terms, providing notice of the possibility of an upper term if certain aggravated factors were found to exist. Under these circumstances, we conclude the trial court’s sentencing choice was consistent with the broad discretion afforded to it under section 1170, subdivision (b), as amended, and that appellant’s upper term sentence was thus consistent with the principles set forth in Cunningham.
DISPOSITION
The sentence is vacated and the case is remanded to the trial court for resentencing in a manner consistent with the opinions stated herein. In all other regards, the judgment is affirmed.
We concur: McGuiness, P. J., Pollak, J.
Bush testified that appellant came to her house at 8:00 p.m. that night, but then left at 9:00 p.m. before she left to meet her sister. She did not recall appellant making the two phone calls on his cell phone between 8:00 p.m. and 9:00 p.m. that lasted about ten minutes each.
“ (a) Where one of the new offenses is one of the violent felonies specified in subdivision (c), in addition to and consecutive to any other prison terms therefor, the court shall impose a three-year term for each prior separate prison term served by the defendant where the prior offense was one of the violent felonies specified in subdivision (c). However, no additional term shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction. “ (b) Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.” (§ 667.5, subds. (a), (b).)