Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF129202. Hugh F. Mullin III, Judge. (Retired judge of the Santa Clara County Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
William J. Capriola, 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, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Theodore M. Cropley, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
I. INTRODUCTION
Defendant Rodney Bernard Allen appeals from his conviction of assault with a deadly weapon other than a firearm (Pen. Code. § 245, subd. (a)(1)), within the meaning of sections 667 and 1192.7, subdivision (c)(31), with a great bodily injury (GBI) enhancement (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)). Defendant contends (1) the trial court erroneously refused to admit any of witness Roxanne Quinn’s numerous misdemeanor convictions to impeach her credibility; (2) the trial court erroneously instructed the jury with CALJIC No. 5.54 when there was no factual evidence to support the instruction and the instruction likely confused the jurors as to the applicable legal standard; and (3) the trial court’s imposition of the upper term was based upon facts not found beyond a reasonable doubt by a jury in violation of the United States Supreme Court’s holding in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856; 166 L.Ed.2d 856] (Cunningham).
All further statutory references are to the Penal Code unless otherwise set forth.
II. FACTS AND PROCEDURAL BACKGROUND
A. The Prosecution’s Case
In early 2006, Robert and Roxanne Quinn were homeless and living in a camper. Robert worked doing lawn service and panhandled for extra money while Roxanne collected cans and bottles for recycling. Robert and Roxanne both knew of defendant, and on several occasions Robert admonished defendant for making suggestive comments to Roxanne.
On February 22, 2006, sometime after 5:00 p.m., Robert and Roxanne went to a gas station in Moreno Valley which had an attached Don’s Chicken restaurant. The gas station was next door to a Carl’s Jr. restaurant. Robert began panhandling in front of the Don’s Chicken restaurant while Roxanne observed nearby. Defendant arrived shortly thereafter, and he too began panhandling. Robert panhandled on the sidewalk in front of the restaurant while defendant worked the entrance of the liquor store, opening and closing the door for customers. Robert testified that defendant did not speak to him but that defendant appeared agitated.
Roxanne went into Don’s Chicken to count her change and get a soda. When she came out, defendant was still standing at the entrance to the liquor store and Robert was standing on the sidewalk outside Don’s Chicken. Robert and defendant did not exchange any words or angry looks. Roxanne then went into the Carl’s Jr. to use the bathroom. Before leaving, she told Robert not to get in defendant’s way. Roxanne remained at Carl’s Jr. for seven to 10 minutes.
After Roxanne left, defendant walked past Robert but returned a short while later, approaching Robert from behind. When Robert turned to look over his shoulder, defendant struck him once in the forehead. Robert fell to his knees, and defendant hit him on the forehead a second time. After the second blow, Robert blacked out, and he has no recollection of any subsequent events. Robert did not see what the defendant hit him with.
When Roxanne came out of the Carl’s Jr., she heard a man screaming and the sound of something hitting the ground hard four or five times. When she was able to see the gas station, she saw defendant strike Robert at least three times in the head with what looked like a “long piece of tree.” Roxanne yelled at defendant to stop beating Robert. Defendant dropped the weapon and ran away.
Robert was bleeding from his head, ear, nose, and mouth. He had a wound on his forehead, a large lump on the top of his head, and a cut on his chin. His left ear was partially torn off, and he was missing several teeth. Robert was taken to the hospital by ambulance. When he arrived, Robert was combative and agitated, and he required restraint and sedation. Robert remained hospitalized for three weeks and was then released to a rehabilitation facility. At the time of his release, Robert still could not carry on a normal conversation and required feeding through a tube in his stomach.
Robert’s treating physician, Dr. Tomlin, testified that Robert suffered a skull fracture, a broken jaw, orbital fractures, a subdural hematoma, multiple small bleeds in his brain, and lacerations and contusions on his scalp. No abrasions, cuts, or bruises were found on Robert’s hands or arms.
Dr. Tomlin also testified that Robert’s injuries could not have all been caused by one blow. Dr. Tomlin also testified that Robert had sustained significant and long-lasting injuries and that the injury to his brain could be permanent.
Officer Hutson with the Riverside County Sheriff’s Department was the first to respond. He testified that he found Robert unconscious with severe head wounds, bleeding profusely. Officer Hutson found three pieces of a wooden pole scattered around Robert’s body. The officer was later able to determine the pole was used to hold up a small tree located nearly 40 feet away. Officer Hutson also found the blade of a box cutter near the entrance of Don’s Chicken.
Roxanne discovered a box cutter lying on the ground next to Robert after he was beaten. Robert acknowledged that he carried a box cutter in his pocket, but he testified it was old and the blade often separated from the handle. He denied ever pulling it out during his confrontation with the defendant. He further denied ever threatening the defendant with a bat or in any other way.
B. The Defense Case
Defendant testified on his own behalf and was the defense’s only witness. He testified he had known Robert and Roxanne for about six months, but they were not friends. About a month and a half prior to the incident, Robert confronted defendant and accused him of trying to “come on” to Roxanne.
On February 22, prior to going to the gas station, defendant had an argument with his girlfriend and drank a beer. When defendant arrived at around 6:00 p.m., Robert and Roxanne were already there. Defendant and Robert agreed they would take turns asking people for money. Roxanne asked defendant for a quarter, but he did not have one, and he watched her go back and speak with Robert.
Shortly thereafter, defendant asked someone for change, and Robert became angry because he had already asked the same person. Robert went to his truck and returned with a baseball bat. Robert did not threaten defendant with the bat, but he frightened defendant by smiling and nodding at him. Robert then returned the bat to his truck and resumed his panhandling.
Defendant approached Robert and “squared off” with him, “[n]ose to nose.”. Robert pushed defendant, called him a “bitch,” and began fumbling with a box cutter he had pulled from his pocket. Defendant told Robert, “I don’t want no [sic] problems with you, man,” and began to walk away. Robert followed him and was still holding the box cutter.
Defendant pulled a wooden pole that had been holding up a small tree out of a planter to defend himself. Robert continued to follow defendant and asked, “what are you going to do, hit me with that stick?” Defendant said, “yeah” and swung. Robert ducked and the stick broke across his shoulders. Robert was still holding the box cutter, so defendant hit him across the shoulders again and Robert fell to the ground. Robert still had the box cutter in his hand, so defendant hit Robert a third time in the arm. Defendant denied ever hitting Robert in the head.
Defendant heard Roxanne yelling for him to stop because he was going to kill Robert. Defendant stepped on Robert’s arm, pulled the box cutter out of his hand, and threw it toward Don’s Chicken. Defendant then dropped the stick and walked away. Defendant did not think Robert was seriously injured because he heard Robert snoring as he walked away.
C. Procedural History
The Riverside County District Attorney charged defendant with one count of assault with a deadly weapon other than a firearm (§§ 245, subd. (a)(1), 667, and 1192.7, subd. (c)(31)), with a GBI enhancement (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)). The information further alleged defendant was convicted of robbery in 1991, and that this conviction was both a prior strike and a serious and violent felony (§§ 211, 667, subds. (a), (c) & (e)(1), 1170.12, subd. (c)(1)). It was also alleged that defendant served a term in state prison for a 1998 possession of a controlled substance conviction which qualified as a prior prison term enhancement (Health & Saf. Code, § 11350, subd. (a); § 667.5, subd. (b).)
The jury trial began on July 17, 2006. Trial on the priors was bifurcated. The jury found defendant guilty of assault with a deadly weapon and found the GBI enhancement true. Defendant, having previously waived his right to a jury trial, then admitted the priors as alleged.
Defendant was sentenced to a total state prison term of 16 years, as follows: The upper term of four years for the assault conviction, doubled to eight years under the “Three Strikes” law, plus a consecutive three-year term for the GBI enhancement, and a consecutive five-year term for the prior serious felony enhancement.
Defendant filed a timely notice of appeal.
III. THE TRIAL COURT PROPERLY EXERCISED ITS DISCRETION IN EXCLUDING EVIDENCE OF ROXANNE’S PRIOR MISDEMEANOR CONVICTIONS FOR IMPEACHMENT DURING CROSS-EXAMINATION
During in limine motions, the prosecution moved to exclude all of Roxanne’s misdemeanor convictions, which ranged from 13 to 22 years old. The parties and trial court agreed that four of her convictions were crimes of moral turpitude. The trial court granted the prosecution’s motion because the priors were “too remote” and would require undue consumption of time. The trial court then stated it had never allowed in a misdemeanor conviction for impeachment purposes because the court did not “agree with it.”
Defendant challenges the exclusion on the following grounds: (1) The trial court’s “universal policy” of excluding misdemeanors was a failure to exercise the discretion vested in it by law; and (2) if the trial court did exercise its discretion, the exclusion of Roxanne’s misdemeanors on the grounds of undue consumption of time and remoteness constituted an abuse of that discretion.
A. Standard of Review
In Davis v. Alaska (1974) 415 U.S. 308, 320-321 (Davis), the United States Supreme Court held that the denial of a defendant’s opportunity to cross-examine an adverse witness for bias violated the Confrontation Clause of the Sixth Amendment. “It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel’s inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.)
In a concurring opinion, however, Justice Stewart emphasized that while such cross-examination was necessary “in order ‘to show the existence of possible bias or prejudice’” of a witness, “the Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions.” (Davis, supra, 415 U.S. at p. 321.)
“We review a challenge to a trial court’s choice to admit or exclude evidence under section 352 for abuse of discretion. [Citation.] We will reverse only if the court’s ruling was ‘arbitrary, whimsical, or capricious as a matter of law. [Citation.]’ [Citation.]” (People v. Branch (2001) 91 Cal.App.4th 274, 282.) However, “‘[a] ruling otherwise within the trial court’s power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law. [Citations.]’ [Citation.]” (People v. Downey (2000) 82 Cal.App.4th 899, 912.)
“[T]he constitutionally improper denial of a defendant’s opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman harmless-error analysis. The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” (Delaware v. Van Arsdall, supra, 475 U.S. at p. 684.)
Chapman v. California (1967) 386 U.S. 18.
B. The Trial Court Did Not Fail To Exercise Its Discretion
Defendant relies upon People v. Penoli (1996) 46 Cal.App.4th 298 (Penoli) to support his assertion that the trial court’s exclusion of Roxanne’s misdemeanor convictions for impeachment purposes constituted a failure to exercise its discretion. “Ordinarily, of course, a trial court’s reasons for ruling in a particular manner are not reviewable on appeal. [Citation.] An exception is made, however, when the court’s comments unambiguously disclose that it failed to pass on the merits of the issue [citation], or that its ruling embodied, or rested upon, a misunderstanding of the relevant law [citation] or an arbitrary or irrational point of view [citations].” (Penoli, supra, at pp. 305-306.)
In Penoli, the trial court explicitly reversed the sentencing rule prescribed by the Legislature because “its [(the trial court’s)] reasons for denying credit were ‘better than the Legislature’s reasons’ for allowing it.” (Penoli, supra, 46 Cal.App.4th at p. 304.) On appeal, the court held that “a preconceived determination applicable to all cases in which the question might arise . . . constituted an erroneous failure to exercise the discretion vested in the court by law.” (Id. at p. 303.) “Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal.” (Id. at p. 306.)
Here, the trial court stated, “My record will show I have never allowed a misdemeanor for a conviction in anyway, because I don’t agree with it.” Defendant contends this shows the trial court had a “universal policy” which it applied to all cases, and constituted a failure to exercise its discretion on a case by case basis. We agree with defendant that if the court indeed had a standard practice of summarily excluding misdemeanor convictions it would be error. An examination of the record, however, reveals that is not the case.
Immediately prior to making the statement, the trial court had just finished stating its reasons for excluding the misdemeanor convictions. First, “they are too remote.” Second, “[I]f she denies it, we are going to get into trying four other cases. [¶] And the consumption of time in that area, I am not going to allow it.” It was in this context the statement was made. Unlike in Penoli, the trial court was not explicitly stating a disagreement with the Legislative policy and substituting its own. Instead, it was indicating that in the absence of some kind of evidence, it did not agree with the proposition that the probative value of a misdemeanor conviction was worth the undue consumption of time it would take to prove the underlying conduct at trial. While the basis for this belief was inadequate, as addressed below, it does not preclude a finding the trial court did in fact exercise the discretion vested in it by law.
C. The Trial Court Did Not Abuse Its Discretion
Defendant next claims the trial court abused its discretion because (1) its belief that the admission of the misdemeanor convictions would result in undue consumption of time was unfounded, and (2) its application of two standards of remoteness for defendant and a prosecution witness was arbitrary, capricious, or whimsical.
1. Admission of prior misdemeanor convictions would not result in undue consumption of time
According to the record, it appears that the trial court erroneously believed the admission of Roxanne’s misdemeanor convictions required defendant to have actual, admissible evidence of the underlying conduct of the witness’s conviction. However, if a defendant has a good faith belief that a witness has a misdemeanor conviction involving moral turpitude, the defendant may question the witness about that conviction, “even though he may not have had evidence to controvert a denial by her.” (People v. Steele (2000) 83 Cal.App.4th 212, 222-223.) Here, defendant had such a good faith belief. Roxanne had admitted her prior convictions at a preliminary hearing, and it was unlikely she would have denied them under cross-examination at trial. In the event Roxanne had denied them, the trial court would not have had to “get into trying four other cases” as it feared. While People v. Wheeler (1992) 4 Cal.4th 284 (Wheeler) found “evidence of a misdemeanor conviction, whether documentary or testimonial, is inadmissible hearsay when offered to impeach a witness’s credibility” (id. at p. 300, fn. omitted), subsequently-enacted Evidence Code section 452.5 provides an exception to this general rule. Subdivision (b) of that section provides in pertinent part, “An official record of conviction . . . is admissible pursuant to [Evidence Code] Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record.” (Evid. Code, § 425.5, subd. (b), added by stats. 1996, ch. 642 (A.B. 1387), § 3; italics added.) Thus, the unambiguous language of Evidence Code section 452.5 “states a new hearsay exception for certified official records of conviction, which may be offered to prove not only the fact of a conviction, but the commission of the underlying offense.” (People v. Duran (2002) 97 Cal.App.4th 1448, 1461, fn. omitted.) As a result, defendant could have used Roxanne’s rap sheet to contradict her testimony in the event she had denied her prior convictions.
The Wheeler court contemplated just such an exception when it noted the Legislature was not “precluded from creating a hearsay exception that would allow use of misdemeanor convictions for impeachment in criminal cases.” (Wheeler, supra, 4 Cal.4th at p. 300, fn.14.)
Defendant also could have contradicted any potential denial based upon Roxanne’s admission to the prior convictions at the preliminary hearing. Under Evidence Code section 1235, evidence of a witness’s prior inconsistent statement may be used to discredit her testimony at trial. Here, that would have only required producing a copy of the transcript from the preliminary hearing.
Neither of these options would have consumed an undue amount of time, and we conclude the trial court lacked an adequate basis for excluding the witness’s misdemeanor convictions on this ground.
2. Trial court’s finding that Roxanne’s misdemeanor convictions were too remote was proper
Defendant next argues that Roxanne’s misdemeanor convictions were no more remote than those of himself and Robert and should not have been excluded on that ground.
The trial court admitted defendant’s felony robbery conviction from 1991. The court also admitted felony convictions to impeach Robert, a prosecution witness and the victim, from 2002, 1990, 1986, and 1983. “[A]dditional considerations may apply,” however, “when evidence other than felony convictions is offered for impeachment. In general, a misdemeanor—or any other conduct not amounting to a felony—is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present.” (People v. Wheeler, supra, 4 Cal.4th 284 at p. 296.) “[T]he latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.” (Ibid.; see also People v. Chatman (2006) 38 Cal.4th 344, 372.)
Here, the trial court properly may have found that the felony convictions admitted presented substantially more probative value than Roxanne’s misdemeanors. While all of the contested misdemeanors involved some degree of moral turpitude, they are certainly less forceful indicators of immoral character or dishonesty than defendant’s felony robbery conviction and Robert’s numerous felony convictions. Moreover, given the tremendous remoteness of time, the trial court was well within its discretion to find Roxanne’s 13- to 22-year-old convictions were only marginally relevant but highly prejudicial. “Surely, another court might have concluded otherwise. That fact, however, reveals nothing more than that a reasonable difference of opinion was possible. Certainly, it does not establish that the court here ‘exceed[ed] the bounds of reason . . . .’ [Citation.]” (People v. Clair (1992) 2 Cal.4th 629, 655.)
3. Any constitutional error was harmless beyond a reasonable doubt
The United States Supreme Court has made clear: “‘[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defendant might wish.’ [Citation.]” (Delaware v. Van Arsdall, supra, 475 U.S. at p. 679.) “[N]ot every restriction on a defendant’s desired method of cross-examination is a constitutional violation.” (People v. Frye (1998) 18 Cal.4th. 894, 946.) “[U]nless the defendant can show that the prohibited cross-examination would have produced ‘a significantly different impression of [the witnesses’] credibility’ [citation], the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.]” (Ibid.)
Evidence of Roxanne’s misdemeanor convictions would only have been marginally relevant in determining her credibility. Nonetheless, defendant contends that Roxanne’s 1989 forgery conviction is relevant because it reflects negatively upon her capacity to be truthful. There were, however, other grounds that were arguably more relevant to the jury’s determination of her veracity than the admission of a nearly 20-year-old misdemeanor conviction. At trial, defense counsel was able to cross-examine Roxanne about her intimate relationship with the victim, her past problems with the defendant’s sexual advances, and conflicting statements she made to the police. Having heard this, the jury had exposure to sufficient facts from which they “‘could appropriately draw inferences relating to the reliability of the witness.’” (Delaware v. Van Arsdall, supra, 475 U.S. at p. 680.)
Accordingly, defendant has failed to carry his burden of showing the prohibited cross-examination, if allowed, would have produced a significantly different impression of the witness. Consequently, we find there was no constitutional error.
Assuming, however, there was error, we find such error would have been harmless beyond a reasonable doubt. “Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” (Delaware v. Van Arsdall, supra, 475 U.S. at p. 684.)
The evidence was indisputable that defendant was the only person to inflict Robert’s injuries. Roxanne’s testimony shed little, if any, light on defendant’s theory of self-defense. Roxanne admitted that she was not there when the fight started, she did not know what initiated it, and she did not arrive until Robert was already lying on the ground unconscious.
It was the defendant’s own testimony that belied his self-defense claim. Defendant claimed Robert was following him with the box cutter when defendant grabbed the tree stake and hit Robert with it. However, Robert’s body was found nearly 40 feet away from the area where defendant had claimed to have defended himself. Defendant claimed to have hit Robert only three times on the shoulders and arm, but the severity of Robert’s head injuries, the testimony of his treating physician, and Roxanne’s cumulative testimony provided ample evidence to refute that assertion. Furthermore, defendant admitted striking Robert while he was lying on the ground. Because there was ample evidence to support defendant’s conviction, any additional impeachment would have had no effect.
IV. THE TRIAL COURT DID NOT ERR BY INSTRUCTING
JURY WITH CALJIC NO. 5.54
Defendant’s next issue on appeal arises from the trial court’s use of CALJIC No. 5.54, Self-defense By An Aggressor. Defendant contends this jury instruction was not supported by substantial evidence and likely confused the jury into applying an incorrect legal standard to defendant’s self-defense claim.
A. Standard of Review
“In reviewing a claim of error in jury instructions in a criminal case, this court must first consider the jury instructions as a whole to determine whether error has been committed. [Citations.] We may not judge a single jury instruction in artificial isolation, but must view it in the context of the charge and the entire trial record. [Citation.] An appellate court cannot set aside a judgment on the basis of instructional error unless, after an examination of the entire record, the court concludes that the error has resulted in a miscarriage of justice. [Citation.] A miscarriage of justice occurs only when it is reasonably probable that the jury would have reached a result more favorable to the appellant absent the error. [Citations.]” (People v. Moore (1996) 44 Cal.App.4th 1323, 1330-1331.)
B. Discussion
A trial court has a sua sponte duty to instruct on all “general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case,” and “every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant’s theory of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) “Substantial evidence is evidence of reasonable, credible value.” (People v. Crew (2003) 31 Cal.4th 822, 835.)
As given here, CALJIC No. 5.54 provided, “The right of self-defense is only available to a person who initiated an assault, if [¶] 1. He has done all of the following: [¶] A. He has actually tried, in good faith, to refuse to continue fighting; [¶] B. He has by words or conduct caused his opponent to be aware, as a reasonable person, that he wants to stop fighting; and [¶] C. He has by words or conduct caused his opponent to be aware, as a reasonable person, that he has stopped fighting. [¶] After he has done these three things, he has the right to self-defense if his opponent continues to fight[,] or [¶] 2. if the victim of simple assault responds in a sudden and deadly counterassault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense.”
Defendant contends that the testimony given permits only two possible versions of what happened, neither of which justifies the reading of CALJIC No. 5.54. Based upon Robert’s testimony, defendant was the aggressor without the benefit of self-defense because his attack was unprovoked. Based upon defendant’s testimony, Robert was the aggressor because he pushed defendant, threatened him, and pulled out a box cutter. Defendant ignores, however, a third possible interpretation based upon defendant’s own trial testimony.
A reasonable jury could infer defendant was the initial aggressor because defendant testified that it was he who first approached Robert, and that it was he who “squared off” with him “[n]ose to nose.” Defendant contends this interpretation is insufficient to warrant giving CALJIC No 5.54 because defendant did not initiate an “assault” within the meaning of the instruction because “squaring off” and going “nose to nose” with someone would not “probably and directly result in the application of physical force on another person.” Those terms, however, as traditionally understood, imply a willingness to enter into a physical confrontation and the jury may have reasonably inferred that defendant’s actions probably and directly resulted in the application of physical force. As such, the jury may well have found that defendant was the initial aggressor, but that he had regained his right to self-defense when he told Robert “I don’t want no [sic] problems” and walked away. “The instructions do not assume the existence of evidence . . . they merely instruct the jury on the use of such evidence should it be found to exist.” (People v. Crandell (1988) 46 Cal.3d 833, 870.) We thus reject defendant’s claim that CALJIC No. 5.54 was not supported by the evidence.
We similarly reject defendant’s second contention that the instruction confused the jurors as to the applicable legal standard for self-defense. Defendant claims even if the jurors believed his testimony that Robert had pulled out a box cutter, they could have concluded he still did not have the right to self defense because he did not communicate a desire not to fight. As noted above, however, the defendant testified he told Robert “I don’t want no [sic] problems” and walked away, which, if believed, was a clear communication he did not wish to fight.
Finally, defendant contends the jury was improperly influenced by being read an instruction entitled “Self Defense By An Aggressor” because it implied the judge had rejected defendant’s claim of self-defense. This contention also fails. First, the court never mentioned the title of the instruction when it was read to the jury. Second, the court specifically instructed the jury as follows:
“I have not intended by anything I have said or done . . . to intimate or suggest what you should find to be the facts, what your verdict should be, or that I believe or disbelieve any witness. If anything[] I have said or done has seemed to so indicate, you must disregard it and form your own opinion. [¶] . . . [¶] Whether some instructions apply will depend upon what you find to be facts. Disregard any instruction which applies to facts determined by you not to exist. Do not conclude because an instruction has been given that I am expressing an opinion as to the facts.” (Italics added.)
CALJIC No. 5.54 was only one of six self-defense instructions read, and the jury was instructed to disregard any instruction not supported by the facts. The trial court unequivocally admonished the jurors not to conclude the judge was expressing an opinion about the facts, the believability of any witness, or what the verdict should be. “Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions. [Citation.]” (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Hence, it is not reasonably probable that the jury engaged in speculation, as defendant suggests, or that the instruction in any manner interfered with the jury's consideration of defendant’s self-defense theory. (People v. Crandell, supra, 46 Cal.3d at p. 872)
Based on the above, we conclude that it is not reasonably probable that the jury would have reached a result more favorable to the defendant had CALJIC No. 5.54 been omitted.
V. THE UPPER TERM SENTENCE IS UPHELD
The trial court sentenced defendant to the upper term of four years for the assault conviction, doubled to eight years under the Three Strikes law. In imposing the upper term, the court found the following circumstances in aggravation: (1) the crime “involved great violence, great bodily harm and other acts exposing a high degree of cruelty”; (2) defendant engaged in violent conduct indicating a serious danger to society; (3) defendant’s prior convictions as an adult were numerous and of increasing seriousness; and (4) defendant’s prior performance on probation or parole was unsatisfactory. The court found no circumstances in mitigation.
Defendant contends the court’s imposition of the upper term for the assault conviction violated his constitutional right to have the aggravating factors determined beyond a reasonable doubt by a jury under Cunningham and Apprendi v. New Jersey (2000) 530 U.S. 466, based upon the trial court’s later statement that its imposition of the aggravated term was “based ‘primarily’ on the recent statement of the victim’s injuries.”
Even if that were true, “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816, italics added.) Here, the trial court specifically relied upon defendant’s prior convictions as a factor in imposing the upper term. Because one legally sufficient aggravating circumstance is present here, the trial court’s finding of additional aggravating circumstances did not violate defendant’s constitutional rights. Thus, we reject his claim.
VI. DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J., GAUT J.