Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07ZF0015, Carla M. Singer, Judge.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
The prosecution charged defendant David Louis Vinci, Jr., with one count each of murder and attempted murder and alleged he personally used a knife to commit the crimes. A jury acquitted defendant of the charged offenses, but on count 1 it found him guilty of the lesser offense of voluntary manslaughter. The jury also returned a true finding on the weapon use allegation as to this crime. The court sentenced defendant to 12 years in prison, consisting of the 11-year upper term and a consecutive one year for the weapon use finding.
Defendant contends the trial court committed prejudicial error by excluding a statement he made when arrested that he sought to introduce as a prior consistent statement, giving a special jury instruction concerning the availability of self-defense and imperfect self-defense, and by imposing the upper term. We conclude the trial court erred by excluding the prior consistent statement, but find the error harmless. As for defendant’s remaining claims, we find they lack merit.
FACTS
One night, Breanna Utter hosted a party at her second-story apartment. The guests, who included defendant, were drinking alcohol and smoking marijuana. Sean Pickett, Utter’s boyfriend, was not invited to it. At some point during the evening, Pickett learned about the party and appeared at Utter’s apartment. After he arrived, the two spoke on the stairs leading to the apartment. They began arguing and, according to Utter, Pickett grabbed her by the arm. She pulled away, telling him, “Don’t touch me.” Pickett claimed Utter pushed him and he told her not to put her hands on him.
Defendant, then standing at the top of the stairs smoking a cigarette, told Pickett not to touch Utter. Pickett claimed he told defendant to mind his own business. Utter testified Pickett swore at defendant, but also claimed she told defendant to stay out of the matter. Defendant testified that after he told Pickett not to touch Utter, “I took... two quick steps, ” “grabbed him by the neck, ” and pushed him against a wall.
The two began to fight. Other party guests appeared and joined in on beating Pickett. Eventually, Pickett broke away, ran to his car, and left.
Utter, defendant, and the others returned to the party. According to Utter the men were “pretty worked up” and joked about beating Pickett. Defendant admitted he and the others were briefly “whipped up” after the fight. Other party guests claimed they saw persons with knives, including defendant who displayed a pocket knife. Joshua Erickson testified defendant said he would “cut this fool” if Pickett returned. Defendant admitted having a pocket knife and saying he would “snap his neck” if Pickett returned, but denied he displayed the knife or mentioned using it.
Shortly thereafter, Pickett returned to Utter’s apartment accompanied by Andy Thompson and James Matteson. Pickett claimed he had only consumed one beer that evening. Matteson testified he and Thompson had consumed several margaritas at dinner and some beers later in the evening.
Utter answered the door, at which point defendant and other party guests stood behind her. Utter and Erickson testified this group began swearing at Pickett, Thompson, and Matteson. Pickett pleaded with Utter to speak with him. Neither Thompson nor Matteson said anything. Defendant testified Pickett challenged him, to which he responded, “Let’s go.”
At some point, Pickett, Thompson, and Matteson descended the stairs and stayed there. After a few minutes, Utter left the apartment, walked part way down the stairs and asked Pickett to leave. As she did so, defendant and other party guests stepped onto the upper porch. The two groups began swearing at each other and challenging each other to a fight. Utter testified she saw one party guest holding a kitchen knife which she took away from him. She then returned to the stairs, standing between the two groups and holding on to the railing on each side of it. Defendant testified that about this time, Utter’s mother, who also lived in the apartment, told the party guests “I can’t deal with this. Get out of here.”
After a few minutes, defendant and two or three other guests rushed down the stairs pushing past Utter and confronted Pickett, Thompson, and Matteson. The two groups began fighting.
Defendant testified he did not want to fight, but “felt I had to” so as “[t]o get it over with. It was unavoidable. They weren’t leaving. They probably had more friends about to show up.... [I]n my mind, I figured they were going to stay there until we fight. They’re not going to leave until something happens....”
Witnesses testified defendant was fighting Thompson. At one point, the two fell to the ground. Suddenly, the two stopped fighting and stood up. Thompson said he had been stabbed, stumbled into the street, and collapsed. At that point, all of the other combatants fled.
Defendant testified that when he reached the bottom of the stairs, Thompson grabbed a skateboard and swung it at him. The first swipe grazed his eyebrow. He pushed Thompson, who swung the skateboard at him a second time. Defendant then pulled out his pocket knife for protection. He claimed Thompson swung the skateboard a third time, at which point he grabbed Thompson in a bear hug and the two fell to the ground where they wrestled for several seconds. According to defendant, “I pushed him back.... And as he went backwards, he grabbed [the skateboard]. As he stood up... [he] came back to swing it again. I ducked... and poked him in the side with my knife.”
Scott Richards and Brian Jonas, two other party guests, testified they saw Thompson holding and using a skateboard during the fight. Other witnesses, both party guests plus Pickett and Matteson, denied seeing Thompson holding a skateboard or other weapon during the altercation.
Thompson died from a puncture wound to his left rib cage that pierced his heart. The physician who performed Thompson’s autopsy testified the victim also had a stab wound on the back of his right arm, abrasions on the back of his right hand, a nick on his left scapula, and a scrape on the back of the left arm, all of which appeared to have been, or are usually caused by, a sharp object.
A forensic investigator acknowledged three skateboards located at the crime scene were not seized or tested. Defendant admitted throwing away the knife as he fled and hid underneath a vehicle. The knife was located outside of a residence near the crime scene several days later.
DISCUSSION
1. Exclusion of Defendant’s Arrest Statement
a. Background
Defendant claimed he acted in self-defense to protect himself from Thompson’s attempt to hit him with a skateboard. He testified he fled the scene because he believed Thompson’s friends were after him. On cross-examination, he admitted knowing the police would probably be called and hearing the sirens as he ran away, but did not return to the scene or contact the police to offer his “story” that Thompson came at him with a skateboard. Although he did speak to Jonas by telephone, defendant also acknowledged not telling him Thompson attacked him with a skateboard.
During this line of questioning, the prosecutor asked “in fact, you’ve had two years to think about your statement to this jury, haven’t you.” On redirect, defense counsel sought to inquire about what defendant told the police when arrested, but the court sustained the prosecutor’s objection to the question. The defense made an offer of proof that during the arrest, defendant asked why he was being taken into custody. An officer said it was for murder, and defendant replied, “That guy died? It was self-defense.” The prosecutor objected to the admission of this statement on the ground it was hearsay. Defense counsel argued it was admissible as a prior consistent statement to rebut the inference from the prosecutor’s cross-examination that, having had time to think about it, defendant made up his self-defense claim. The court sustained the objection.
b. Analysis
Defendant contends the trial court erred in excluding the statement he made while being arrested. In part, he argues the prosecutor’s query “you’ve had two years to think about your statement to this jury, haven’t you[, ]” amounted to a charge of recent fabrication rendering the prior statement admissible under Evidence Code section 791, subdivision (b) to support his credibility. We agree.
“Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including... [¶]... [¶] (g) A statement previously made by him that is consistent with his testimony at the hearing.” (Evid. Code, § 780, subd. (g).) But Evidence Code section 791 generally renders “[e]vidence of a statement previously made by a witness that is consistent with his testimony at the hearing... inadmissible to support his credibility unless it is offered after: [¶]... [¶] (b) [a]n express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.” We review the trial court’s ruling for abuse of discretion. (People v. Thornton (2007) 41 Cal.4th 391, 428.)
Here, the court abused its discretion by excluding evidence defendant asserted he acted in self-defense when told he was being arrested for murder. The prosecutor’s question about having two years to think about what he would say to the jury clearly implied defendant’s self-defense claim was fabricated after he was charged with murdering Thompson. “The mere asking of questions may raise an implied charge of improper motive.... [Citation.]” (People v. Bunyard (1988) 45 Cal.3d 1189, 1209.) The assertion of self-defense upon being arrested for that offense suggested defendant acted as an innocent person would be expected to act by declaring his innocence.
The Attorney General notes, defendant’s motive to fabricate a claim of self-defense arose as early as the stabbing that caused Thompson’s death and no later than when the police informed him that he was being arrested for murder. But People v. Noguera (1992) 4 Cal.4th 599, a case applying Evidence Code section 791 where multiple grounds of bias or improper motive existed, noted “[a]lthough [the] defendant argues th[e witness] had a motive to minimize his potential penal liability as soon as [the police] told him that he was liable criminally as a coconspirator, ... the focus under Evidence Code section 791 is the specific agreement or other inducement suggested by cross-examination as supporting the witness’s improper motive.” (Id. at p. 630; see also People v. Ainsworth (1988) 45 Cal.3d 984, 1015 [“the critical time for determining the admissibility of a witness’s prior consistent statements is when such statements are sought to be admitted”].) The statement defendant purportedly made when arrested for Thompson’s death was relevant to refute the prosecutor’s suggestion he fabricated the self-defense theory after the arrest and while awaiting trial.
Nonetheless, we conclude the exclusion of this evidence was harmless. Contrary to defendant’s argument, exclusion of his self-defense statement did not amount to barring him from presenting a defense. The trial court allowed defendant to present evidence supporting his self-defense theory. He not only testified in support of it, the defense called other witnesses who claimed skateboards were present in the area where the fight took place and that Thompson wielded one of them during the altercation. The court also instructed the jury on self-defense.
“‘As a general matter, the “[a]pplication of the ordinary rules of evidence... does not impermissibly infringe on a defendant’s right to present a defense.” [Citations.]’ [Citation.] Because the trial court merely rejected some evidence concerning a defense, and did not preclude defendant from presenting a defense, any error is one of state law.... [Citation.]” (People v. McNeal (2009) 46 Cal.4th 1183, 1203.) Thus, the question is whether, after examining the record, a reasonable probability exists defendant would have achieved a more favorable result absent the erroneous exclusion of his statement. (People v. Partida (2005) 37 Cal.4th 428, 439; People v. Watson (1956) 46 Cal.2d 818, 836.) We conclude the answer is no.
The evidence strongly reflects defendant was the aggressor in the fight. He interceded in the argument between Utter and Pickett even though both of them informed defendant their dispute was a personal matter. He admitted physically assaulting Pickett during that encounter even though, at most, Pickett merely swore at him. After the initial fight with Pickett, defendant acknowledged stating he would “snap” Pickett’s neck if Pickett returned to the apartment. At least one witness who was at the party testified defendant displayed his knife and threatened to “cut” Pickett. When Pickett did return, accompanied by Thompson and Matteson, defendant testified Pickett challenged him to a fight to which he responded, “Let’s go.” Defendant also admittedly led the charge down the stairs pushing past Utter who was attempting to keep the two groups separated. Given the fact defendant attended the party at Utter’s invitation, plus her efforts to keep the rival groups separated and defuse the encounter, the reasonableness of defendant’s claim that he believed a fight was the only option is doubtful at best.
Nor did the prosecution take unfair advantage of the court’s erroneous ruling. During closing argument the prosecutor barely mentioned the fact defendant had two years to prepare his explanation of the stabbing, only referring to it as one of several reasons why the jury should disbelieve his testimony. Further, apart from any suggestion of recent fabrication, it was true defendant had that amount of time to think about his testimony and the jury could consider this fact in evaluating his credibility regardless of whether the court admitted or excluded his prior claim of self-defense. Consequently, the prosecutor’s only use of the time defendant had to prepare his statement was a fleeting reference to it in an acceptable context.
Finally, the record suggests the jury reached its verdict on the basis of a sudden quarrel or heat of passion theory. During deliberations, the jury sent the court an inquiry, citing CALCRIM No. 570, the standard instruction summarizing the law on that theory, and asking whether they had to “find the defendant not guilty of murder and then consider the manslaughter options, ” “if we think the sudden quarrel between the groups precipitated the killing....” Shortly after the court responded to this question, the jury returned its verdicts. Thus, while we agree the trial court erred by excluding defendant’s statement, the error did not prejudice him.
2. Instructional Error Claim
a. Background
The court instructed the jury on the elements of the charged crime of murder and the lesser included offenses of voluntary manslaughter resulting from a sudden quarrel or heat of passion and voluntary manslaughter resulting from an act committed in imperfect self-defense. (CALCRIM Nos. 500, 520, 521, 522, 570, 571.) The court also gave instructions on self-defense, including the circumstances where one may assert them even though he or she engaged in mutual combat or was the initial aggressor. (CALCRIM Nos. 505, 3471, 3472, 3474.)
On self-defense generally, the jury was told it could find defendant’s actions justified if “consider[ing] all the circumstances as they were known to and appeared to [him] and... what a reasonable person in a similar situation with similar knowledge would have believed, ” “defendant reasonably believed... he was in imminent danger of being killed or suffering great bodily injury, ” “the immediate use of deadly force was necessary to defend against that danger, ” and he responded with “no more force than was reasonably necessary to defend against that danger.” While explaining a “[b]elief in future harm is not sufficient, no matter how great or how likely the harm is believed to be, ” the court informed the jury it could consider whether “defendant received a threat from someone... he... reasonably associated with... Thompson” in determining whether defendant justifiably acted in self-defense. The court also instructed “defendant [wa]s not required to retreat” and could “stand his... ground and defend himself... until the danger... has passed, ” “even if safety could have been achieved by retreating.”
Since there was evidence defendant either engaged in mutual combat or was the initial aggressor, the court gave CALCRIM No. 3471. This instruction told the jury defendant could still be found to have acted in “self-defense if the opponent continues to fight” where defendant “actually and in good faith trie[d] to stop fighting; [¶]... [¶]... indicate[d], by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he want[ed] to stop fighting and that he has stopped fighting; [¶] and [¶]... g[a]ve[] his opponent a chance to stop fighting.” The court also gave the last paragraph of CALCRIM No. 3471 which states “[i]f you decide that the defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting.”
At the prosecution’s request and over a defense objection, the court also gave the following special instruction: “The princip[le] of imperfect self-defense and self-defense is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of force, attack, or pursuit.”
b. Analysis
Defendant argues the court erred by giving the special instruction, asserting “it contradict[ed] CALCRIM No. 3471 and eliminate[d his] claim of self-defense.” While we conclude in light of the CALCRIM instructions, the special instruction was unnecessary, we do not find it caused defendant any prejudice.
“Review of the adequacy of instructions is based on whether the trial court ‘fully and fairly instructed on the applicable law.’ [Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) Further, “‘[t]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’ [Citations.]” (People v. Carrington (2009) 47 Cal.4th 145, 192.) Also, “‘“we must... assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” [Citation.]’ [Citation.]” (People v. Ramos, supra, 163 Cal.App.4th at p. 1088.) Thus, “[a] defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]” (People v. Cross (2008) 45 Cal.4th 58, 67-68; People v. Solomon (2010) 49 Cal.4th 792, 822.)
“The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law [citations]....” (People v. Posey (2004) 32 Cal.4th 193, 218.) However, “‘[i]nstructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.’ [Citation.]” (People v. Ramos, supra, 163 Cal.App.4th at p. 1088.)
The evidence presented at trial reflects defendant fatally stabbed Thompson during mutual combat. Also, the jury could have concluded defendant and other party guests initiated the fight. But, as defendant claims, there was also evidence that he confronted Pickett, Matteson, and Thompson intending to employ only his fists, at which point Thompson swung a skateboard at him and continued to use it during their encounter. Paraphrasing our discussion of a similar issue in People v. Quach (2004) 116 Cal.App.4th 294, “[W]hile it is not our province to decide whether these were the facts in this case, they were certainly the facts [defendant] argued, and we [must] search[]... for anything in the instructions given in this case which would have helped the jury arrive at a verdict if they accepted that version of the facts.” (Id. at p. 302.)
Here, that was the case. At trial, defendant claimed he was entitled to an acquittal on the basis that his use of the knife was a justifiable response to Thompson’s initial use of deadly force by swinging the skateboard at him. As noted, the court gave CALCRIM No. 3471, including the last paragraph which extended the right to assert self-defense to a combatant who “start[s] the fight using non-deadly force, ” but is confronted by an “opponent respond[ing] with... sudden and deadly force” under circumstances where the combatant cannot “withdraw from the fight.” Had the jury believed defendant confronted Pickett and his companions intending to engage in only a fistfight and Thompson tried to strike him with a skateboard, it could have concluded defendant was entitled to respond by using his knife to defend himself.
Contrary to defendant’s assertion, the special instruction did not negate the last paragraph of CALCRIM No. 3471. The special instruction precluded a claim of self-defense only if the jury found “the defendant[’s]... unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of force....” Correlating this instruction with the last paragraph of CALCRIM No. 3471, the initiation of a fight employing only non-deadly force would not legally justify a response utilizing deadly force. Thus, if the jury found defendant confronted Thompson without displaying a weapon, and Thompson responded by swinging the skateboard at defendant under circumstances where he could not withdraw, defendant still would have been entitled to assert his use of the knife constituted justifiable self-defense.
While the standard instructions fully informed the jury on the relevant legal principles and the special instruction amounted to mere surplusage, we conclude its use did not constitute error under the circumstances of this case.
3. Sentencing
a. Background
At sentencing, the prosecution requested the court impose the upper term, claiming “the crime involved great violence, great bodily harm, threat of great bodily harm” and “acts... dis[cl]os[ing] a high degree of viciousness and callousness....” The prosecutor also identified other aggravating factors, including “defendant was armed and used a weapon, ” “the victim was particularly vulnerable, ” and “defendant was in a position of leadership..., being the one that was leading the charge....” The defense sought a middle term sentence, noting some of the factors cited by the prosecution would involve a dual use of facts or an element of crime and disputing the factual support for other factors.
The court selected the 11-year upper term, finding the aggravating factors contained in California Rules of Court, rule 4.421(a)(1) applied and no “circumstances in mitigation [existed] that would warrant the middle or the low term in this particular case.” “The crime did involve great violence and great bodily harm. And, in this case, there was, according to the evidence [at] trial, more than one strike, although there was only one blow that resulted in death.”
b. Analysis
Defendant challenges the imposition of the upper term. First, he claims the court increased his term “beyond the statutory maximum by relying on ‘facts’ requiring proof beyond a reasonable doubt by a jury, ” thereby violating his federal constitutional rights. Second, he argues the sentence violated the California Rules of Court because the court relied on facts underlying the separately imposed weapon enhancement and an element of the offense (Cal. Rules of Court, rule 4.420(c) & (d)) and that, in any event, the evidence fails to support the court’s finding he stabbed Thompson multiple times.
The constitutional claim lacks merit. Both parties recognize, the legislative amendment of California’s Determinate Sentencing Law corrected the defect previously recognized by the United States Supreme Court in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856]. Under the revised law “[w]hen 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, ” and it “shall select the term which... best serves the interests of justice.” (Pen. Code, § 1170, subd. (b).) “[T]he United States Supreme Court repeatedly has made clear... that it ‘ha[s] never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. [Citations.]... For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.’ [Citations.]” (People v. Sandoval (2007) 41 Cal.4th 825, 844.) We are bound to follow this precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
On the sentencing decision’s merits, the record and case law support the imposition of the upper term. “The court shall set forth on the record the reasons for imposing the term selected....” (Pen. Code, § 1170, subd. (b); see also Cal. Rules of Court, rules 4.406(a) & (b)(4), 4.420(e).) “[A] court needs only one factor to impose the aggravated term. [Citation.]” (People v. Kelley (1997) 52 Cal.App.4th 568, 581; see also People v. Forster (1994) 29 Cal.App.4th 1746, 1758.) It “is presumed to have considered all relevant factors unless the record affirmatively shows the contrary. [Citations.]” (People v. Kelley, supra, 52 Cal.App.4th at p. 582; see Cal. Rules of Court, rule 4.409.)
The trial court relied on California Rules of Court, rule 4.421(a)(1). That rule states a “[c]ircumstance[] in aggravation” supporting an upper term includes “[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness....” Defendant argues reliance on the fact his crime involved great bodily harm violated California Rules of Court, rule 4.420(d), declaring “[a] fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term.” In People v. Piceno (1987) 195 Cal.App.3d 1353, the court held “by definition, manslaughter involves the killing of a human being...; death─the greatest of all bodily harm─is therefore an element of this crime.” (Id. at p. 1357.)
But California Rules of Court, rule 4.421(a)(1) applies to more than great bodily harm. In People v. Duran (1982) 130 Cal.App.3d 987, the court upheld an upper term sentence for voluntary manslaughter where the defendant repeatedly stabbed a defenseless victim who was on the ground and being kicked by others. “We agree... that the trial court was precluded from relying on great bodily harm as such for aggravation purposes.” (Id. at p. 990.) But “[t]he rule cites as an aggravating factor that ‘The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness....’ Clearly, the rule does not require great bodily harm. If it did, then the references to great violence and threat of great bodily harm would be meaningless. Moreover, the use of the disjunctive ‘or’ makes clear that the rule may be satisfied by cruel, vicious or callous acts other than those involving great violence, great bodily harm, or threat of great bodily harm. [¶] It follows that where, in the course of killing his victim, a defendant commits cruel, vicious, callous acts which transcend the basic fact of great bodily harm, the taking of the victim’s life does not immunize the defendant....” (Id. at pp. 990-991; see also People v. Nevill (1985) 167 Cal.App.3d 198, 201, 206 [affirming upper term for voluntary manslaughter conviction where the defendant “repeatedly fired his semi-automatic rifle at his helpless wife at point-blank range”].)
The court cited the fact “the crime did involve great violence, ” noting the evidence supported a conclusion defendant stabbed Thompson more than once. Defendant claims “the ‘great violence’ referenced... must be to [his] use of a knife, ” thus resulting in the improper dual use of that fact to impose both the upper term and the additional year for the weapon enhancement in violation of California Rules of Court, rule 4.420(c). To satisfy the weapon enhancement “there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a [weapon] in aiding the commission of” a “specified felon[y].” (People v. Bland (1995) 10 Cal.4th 991, 997.) Thus, only one of the other cuts inflicted by defendant would have satisfied this requirement. The court focused on the multiple wounds Thompson suffered from the stabbings. In addition, it relied on defendant’s flight from the scene of the attack and disposal of the knife. It rejected defendant’s reliance on the mitigating factor that “the crime was committed because of an unusual circumstance, such as great provocation....” (Cal. Rules of Court, rule 4.423(a)(3).)
A court’s “sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an ‘individualized consideration of the offense, the offender, and the public interest.’ [Citation.]” (People v. Sandoval, supra, 41 Cal.4th at p. 847.) The court abuses its discretion when imposing a sentence “if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision. [Citations.]” (Ibid.) “When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. [Citation.]” (People v. Price (1991) 1 Cal.4th 324, 492.) We conclude the record is sufficient to support the court’s decision to impose the upper term for defendant’s voluntary manslaughter conviction.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, J., ARONSON, J.