Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F0018
BLEASE , Acting P. J.
Having found defendant Donald Berry not guilty of the first degree murder (Pen. Code, § 187, subd. (a)) of Anona Lorraine Wine, a jury convicted him of second degree murder, corporal injury on a cohabitant (§ 273.5, subd. (a)), and assault with a firearm (§ 245, subd. (a)(2)). The jury also found true special allegations that defendant personally used a firearm (§§ 12022.53, subd. (b) & 12022.5, subd. (a)(1)) and personally inflicted great bodily injury (§ 12022.7, subd. (e)).
Subsequent references to an unnamed section are to the Penal Code.
The trial court sentenced defendant to an aggregate term of 25 years to life (15 years to life for second degree murder plus 10 years for the section 12022.5, subd. (b) enhancement). The court stayed the terms for the remaining counts and enhancements.
Defendant argues the trial court improperly instructed the jury on mutual combat and felony murder, erroneously permitted an expert to give testimony concerning battered woman’s syndrome, and erroneously excluded defendant’s statement to the defense investigator that the victim had attacked him. He also argues he received an upper term sentence in violation of his Sixth Amendment right to a jury trial.
We agree that it was error to give a felony murder instruction, but conclude the error was harmless because the evidence in this case left no reasonable doubt that the jury made the findings necessary for implied malice to support a conviction of second degree murder. (See People v. Sarun Chun (2009) 45 Cal.4th 1172, 1181 (Sarun Chun).) We also reject the remaining claims of error.
We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Wine moved to Hayfork, California sometime around 2002 or 2003 to live with her mother. Eventually, she and defendant moved in together. By all accounts, their relationship was stormy.
In September 2005, Wine was involved in a car accident that left her in a coma for several weeks. She suffered a traumatic brain injury that affected her speech, memory, and mobility. When Wine was first released from the hospital, her mother cared for her, but after a few months, Wine moved to Redding, where she was cared for by her daughter, son, and her daughter’s father, William Cote.
Sometime in June 2006, Wine moved back to Hayfork to live with defendant. At the time of Wine’s murder, she was living with defendant at the Stokke Ranch in Hayfork. She had recovered some from her injuries, but she still had problems with her speech, balance, and generally with taking care of herself. Wine and defendant shared the caretaking duties for the Stokke Ranch with Jerry Allen, who lived at the ranch in his recreational vehicle. Jerry’s brother, Richard, lived in the RV as well.
Around 5:00 or 6:00 on the evening of January 23, 2007, Jerry Allen saw Wine and defendant when he left some food at their house. About an hour later, Jerry went to the local bar to have pizza, drink beer, and play pool. Around 8:00 or 9:00 p.m., Jerry went back to the ranch house to invite defendant and Wine to join him at the bar. He went into the house without knocking, and saw defendant standing over Wine with a shotgun. Defendant was holding the gun as if he had just struck Wine with it, but Jerry testified he did not see defendant strike Wine. However, during a taped interview that occurred shortly after the incident, Jerry told detectives that he saw defendant hit Wine in the head twice with the butt of a shotgun.
Defendant told Jerry that Wine had fallen and he was just helping her get up. Defendant told Jerry that they would come to the bar.
When Jerry had been at the bar an hour or so, defendant showed up at the bar alone and stayed 20 or 30 minutes. Defendant had a strange expression on his face that made Jerry feel eerie and scared. Jerry left the bar around 10:30 or 11:00 that night.
After Jerry got home, his brother Richard Allen left to go to defendant’s house to get some tobacco. Richard came back and told Jerry that Wine needed help. Richard said Wine was lying on the floor and her pants were wet.
Jerry went into the house, and saw Wine propped up against the refrigerator. Wine’s face looked like it had been badly beaten, and she was not breathing. Jerry administered CPR, and Wine started breathing. Jerry saw defendant walking around with the shotgun. Jerry could not call 911 from the house because the telephone was not on the counter where it usually was.
Defendant had opened the shotgun, and appeared to be looking for a shell. Jerry pushed the shotgun out of defendant’s hands, and the gun appeared to break. Jerry told defendant he was going to get help. As he left the house, he heard defendant saying “No, Jerry, no, no.” Jerry drove to the police substation where he was able to get help.
When Deputy Ron Whitman reached the house, Wine had a pulse, but she was not breathing. Her face was black, her right eye was badly bruised, and she had a swollen lip. Wine never regained consciousness, and was declared brain dead the next day.
The cause of Wine’s death was multiple blunt force injuries to her head. The injuries were to all areas of the head--the front, the back, the top, and the sides. She had three or four contusions on the top of the head, indicating as many blows to the top of the head. A blood test revealed she had nothing in her system other than a low level (below therapeutic range) of valium. Wine had multiple other bruises and contusions on other parts of her body. Some of the injuries were older. A large chunk of her hair had been pulled out.
Defendant testified that when he got home from the bar, he and Wine argued. She jumped up from the couch, and he pushed her back down. She lunged back up, and swung at him with a blunt-pointed pair of scissors. He grabbed the scissors out of her hand and threw them away. He testified that the scissors really “set [him] off.” He could not believe she had the gall to try to stab him after all he had done for her. At this point, he had lost his temper beyond the point where he was in control of himself. Defendant grabbed Wine by the hair, spun her around, and pushed her hard. When he pushed her, a clump of her hair pulled out.
At some point after pushing her down, he noticed she was lying on the floor and not getting up, even though her eyes were open. He reached down and slapped her once on the face because he thought she was faking unconsciousness. She did not respond, so he started slapping her more.
Defendant testified that from the time he grabbed Wine’s hair she had “relinquished doing anything.” He had gained control of her, but lost control of himself. When he had her hair, she had given up and was not fighting anymore.
When he heard a knock at the door, he got his shotgun, went to the door, and saw that it was Jerry. He took the butt of the shotgun and moved Wine’s head with it to show Jerry that she was not waking up.
DISCUSSION
I
Mutual Combat Instruction
Defendant argues the trial court improperly instructed the jury on mutual combat, thereby denying him the defenses of self defense and imperfect self defense.
The mutual combat instruction informed the jury that defendant had no right of self defense unless he: (1) tried to refuse to continue fighting, (2) made the victim aware he wanted to stop fighting, (3) made the victim aware he had stopped fighting, and (4) gave the victim the opportunity to stop fighting. However, the mutual combat instruction is inapplicable unless there is evidence that “a reciprocal exchange of blows [was] pursuant to mutual intention, consent, or agreement preceding the initiation of hostilities.” (People v. Ross (2007) 155 Cal.App.4th 1033, 1045.) There was no evidence in this case that the parties agreed to fight prior to the initiation of hostilities.
Even though defendant did not object to the instruction at trial, we may review the instruction if it affected the defendant’s substantial rights. (People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.) The instruction affected defendant’s substantial rights if it resulted in a miscarriage of justice making it reasonably probable he would have obtained a more favorable result absent the error. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) “Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim-at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.” (Ibid.)
Defendant argues the harm in giving the mutual combat instruction was that it left “little leeway for a claim of self-defense or imperfect self-defense.” We conclude it was not reasonably probable that defendant would have obtained a more favorable result absent the error because the excessiveness of the force and defendant’s use of force beyond the point any danger continued to exist, destroyed any excuse, making the defenses unavailable to him.
The right to use force in self defense continues only as long as the danger reasonably appears to exist. The right to use force ends when the attacker no longer appears capable of inflicting injury. (People v. Parrish (1985) 170 Cal.App.3d 336, 352; People v. Martin (1980) 101 Cal.App.3d 1000, 1010.) Similarly, the use of excessive force destroys the justification of self defense. (People v. Hardin (2000) 85 Cal.App.4th 625, 629-630.)
Defendant never indicated he feared for his life when Wine confronted him. Instead, he testified Wine set him off, that he lost his temper, and lost control. By defendant’s own admission, the infliction of the lethal blows to Wine’s head occurred after she stopped fighting and he gained control of her. In fact, the only blows he admits to administering were the slaps to her face, which occurred after she was unconscious and no longer capable of injuring him. Moreover, the force he used to kill her by beating her in the head was excessive compared to her attempts to scratch and claw him. Even if Wine had scissors, as defendant claimed, he disarmed her almost immediately, and only after he disarmed her did he deliver the fatal blows.
Thus, the evidence showed neither self defense nor imperfect self defense. Accordingly any error in giving the mutual combat instruction, and thereby depriving defendant of these defenses, did not result in a miscarriage of justice.
II
Felony Murder Instruction
The jury was given two murder instructions, second degree murder (CALJIC No. 8.31) and a partial felony murder instruction. Defendant argues the trial court erred when it gave the felony murder instruction because the underlying felonies merged with the homicide pursuant to People v. Ireland (1969) 70 Cal.2d 522, 539 (Ireland). He claims violation of the merger doctrine resulted in a violation of constitutional due process.
We agree that it was error to give a felony murder instruction, but conclude the error was harmless because the evidence in this case left no reasonable doubt that the jury made the findings necessary for implied malice to support a conviction of second degree murder. (Sarun Chun, supra, 45 Cal.4th at p. 1181.)
The jury was given the following felony murder instruction: “If a person causes another’s death while committing a felony which is dangerous to human life, the crime is murder.” The jury convicted defendant of two other felonies -- corporal injury on a cohabitant and assault with a firearm.
Defendant was initially accused of violating section 12021, subdivision (a), possession of a weapon by a person convicted of a felony, but the charge was dismissed.
Second degree murder is an unlawful killing with malice, but without premeditation and deliberation. (Sarun Chun, supra, 45 Cal.4th at p. 1181.) Malice can be either express or implied. (Ibid.) Express malice is a manifest deliberate intent to unlawfully take a life. (Ibid.) Implied malice has “‘both a physical and a mental component. The physical component is satisfied by the performance of “an act, the natural consequences of which are dangerous to life.” [Citation.] The mental component is the requirement that the defendant “knows that his conduct endangers the life of another and... acts with a conscious disregard for life.” [Citation.]’ [Citation.]” (Ibid.)
The felony murder rule makes a killing in the commission of certain felonies a murder, without the necessity of proving the defendant’s mental state. (Sarun Chun, supra, 45 Cal.4th at p. 1182.) The second degree felony murder rule eliminates the necessity of establishing the mental component of implied malice. (Ibid.)
In Ireland, supra, 70 Cal.2d 522, the Supreme Court established the doctrine of merger, concluding the felony murder rule does not apply where the underlying felony is not an independent crime, but merely an integral part of the killing itself. (Id. at p. 539.) In Sarun Chun, supra, the Supreme Court explained that the underlying felony merges with the homicide if it is “assaultive in nature[.]” (45 Cal.4th at p. 1200.) A felony is “assaultive” if it involves a threat of immediate violent injury. (Ibid.) The assaultive nature of a felony is determined by its elements, and not the facts of the case. (Ibid.)
In this case, both underlying felonies are assaultive in nature. Corporal injury of a cohabitant requires corporal injury resulting in a traumatic condition. (§ 273.5, subd. (a).) Assault with a firearm requires an attempt, coupled with the present ability to commit a violent injury on the other person. (§§ 240, 245.) Therefore, it was error to give the jury any instruction regarding felony murder.
The error was nevertheless harmless. Defendant did not argue the standard by which we determine harmless error in his briefing to this court. However, on the day of oral argument he belatedly submitted the additional citation of People v. Guiton (Guiton), decided in 1993 (4 Cal.4th 1116), and urged at oral argument that the error was prejudicial pursuant to the reasoning set forth in that case.
The defendant in Guiton was convicted of selling or transporting cocaine. (4 Cal.4th at pp. 1119-1120.) The evidence was sufficient to prove him guilty of transportation, but not of selling. (Ibid.) The court determined that the error of allowing the conviction on either of two grounds, one of which was unsupported by sufficient evidence, was harmless. (Guiton, supra, 4 Cal.4th at p. 1131.) In reaching its conclusion, the court set forth the “Green Rule” (People v. Green (1980) 27 Cal.3d 1) and the “Griffin Rule (Griffin v. United States (1991) 502 U.S. 46 [116 L.Ed.2d 371]). (Id. at pp. 1121-1123.) The Green Rule states: “‘When the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.’ [Citation.].” (Guiton, supra, 4 Cal.4th at p. 1122.)
The Griffin Rule may be stated thusly: When jurors are presented the option of relying on a factually inadequate theory, the error is harmless if there existed alternate grounds for which the evidence was sufficient. (Guiton, supra, 4 Cal.4th at pp. 1125-1126.) Guiton held that the two rules, while seemingly inconsistent, actually coexist, and that Green applies when the jury may have relied on a legally inadequate theory, while Griffin applies when the jury may have relied on a factually inadequate theory. (Id. at pp. 1128-1129.)
Guiton held that, “[i]f the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. But if the inadequacy is legal, not merely factual, that is, when the facts do not state a crime under the applicable statute, as in Green, the Green rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground.” (4 Cal.4th at p. 1129, fn. omitted.) Nevertheless, the court held that affirmance is not always appropriate under Griffin and reversal is not always appropriate under Green. (Ibid.) If the record affirmatively indicates otherwise, the general rule should not be followed. (Ibid.)
Guiton stated that it was governed by Griffin; therefore, it need not decide the exact standard of review of cases governed by Green. (Guiton, supra, 4 Cal.4th at p. 1130.) It stated: “the general rule [in Green cases] has been to reverse the conviction because the appellate court is ‘“unable to determine which of the prosecution’s theories served as the basis for the jury’s verdict.”’ [Citation.] But even this rule has not been universal. One way of finding this kind of error harmless has long been recognized. Sometimes it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory. [Citations.]” (Ibid.)
In Sarun Chun, supra, 45 Cal.4th 1172, the standard of review of cases governed by Green cases was presented. As in this case, Sarun Chun involved an improper felony murder instruction because the underlying felony was subject to the merger rule. As in this case, the defendant was convicted of second degree murder. (Id. at p. 1179.) After acknowledging Guiton, the Supreme Court stated the standard of review for determining harmless error in the case before it, and in this case as well. “If other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary for conscious-disregard-for-life malice, the erroneous felony-murder instruction was harmless.” (Id. at p. 1205.)
The Sarun Chun harmless error test is met here. In a case of second degree implied malice murder, “the requisite mental state for murder-malice aforethought -is by definition ‘implied,’ as a matter of law, from the specific intent to do some act dangerous to human life together with the circumstance that a killing has resulted from the doing of such act.” (People v. Swain (1996) 12 Cal.4th 593, 603.)
The instruction for implied malice, CALJIC No. 8.31, was given here. The jury was instructed that second degree murder would result from the “unlawful killing of a human being when, one, the killing resulted from an intentional act; two, the actual consequences of the act are dangerous to human life; and three, the act was deliberately performed with knowledge of the danger to and with conscious disregard for human life.”
The jury found defendant guilty of corporal injury to a cohabitant and assault with a firearm, both of which required an intentional act that was dangerous to human life. Thus, the jury found defendant intentionally inflicted corporal injury on Wine, and assaulted her with a firearm. These crimes resulted in Wine’s death. The element of malice is implied from defendant’s intent to assault and inflict corporal injury on Wine coupled with the circumstance that she died from the injuries so inflicted. (People v. Swain, supra, 12 Cal.4th at p. 603.) By deciding defendant was guilty of the underlying felonies, the jury necessarily decided the requisite mental state for implied-malice murder. Accordingly, the jury made every finding necessary to convict defendant of second degree, conscious-disregard-for-life malice murder, making the felony murder instruction harmless.
III
Battered Women’s Syndrome Instruction
The trial court permitted the introduction of battered women’s’ syndrome to rebut the defendant’s claim that there was no premeditation and no malice, to show that Wine’s death was not the result of an accident, and to show that defendant did not act in self defense.
Alsah Bundy, the program director for intervention services at Human Response Network, testified as an expert witness. She gave testimony concerning Battered Women’s Syndrome (BWS). Defendant argues the trial court erred in allowing her testimony because there was no “foundational standard of admissibility under Evidence Code § 801,” and because the testimony was not relevant. We shall conclude there was no error.
Evidence Code section 801 provides that expert opinion testimony is admissible if the opinion is (1) “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact;” and (2) based on matter that “reasonably may be relied upon by an expert in forming an opinion” on the subject. Defendant makes no argument on appeal that the evidence concerning BWS was not “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact[.]” Instead, he claims that there was no evidence of a “cycle of violence” leading to the homicide, therefore there was no foundation to admit the testimony.
We understand defendant’s argument to be that there must be evidence of battering prior to the homicide before expert testimony regarding BWS is admissible. This is incorrect. In People v. Brown (2004) 33 Cal.4th 892, the Supreme Court held that if the evidence is admissible under Evidence Code section 801, it need not also be admissible under Evidence Code section 1107. (Id. at pp. 907-908.) Evidence Code section 1107 makes evidence of “intimate partner battering and its effects” admissible if such evidence is relevant. The Supreme Court had stated prior to People v. Brown, supra, that BWS describes women who have been abused “over an extended period of time[.]” (People v. Romero (1994) 8 Cal.4th 728, 735, fn. 1.) Thus, in People v. Gomez (1999) 72 Cal.App.4th 405, 417, disapproved by People v. Brown, supra, the court held that a “single violent incident... is not sufficient to establish that a woman suffers from battered women’s syndrome.”
However, Evidence Code section 801 requires no prior incidents of abuse. Moreover, even if prior incidents were required to render the testimony admissible, there were instances of prior abuse in the record. The medical examiner testified that Wine’s body showed five contusions on her chest, two abrasions near her wrist, a laceration on the back of the hand, and multiple contusions on the legs, that were not fresh. The medical examiner testified Wine’s injuries could have been accidental, but also could have been from being severely beaten. Additionally, Wine’s daughter testified that while Wine and defendant never fought in front of her, she could hear them fighting in their bedroom, and she could hear things being thrown, slamming, screaming and yelling. Wine’s son also testified that the two argued, although he did not see any physical abuse. Donna Patrick testified she observed Wine and defendant fighting, yelling, and screaming at each other, and would notice bruising on Wine after these episodes.
We further conclude the BWS expert testimony was relevant. The defense theory was that defendant and Wine had a loving, caring relationship, and that her death was the result of Wine’s accidental fall (after defendant pushed her in self defense) and his subsequent misguided attempts to revive her by slapping her. By offering this theory, defendant hoped to convince the jury there was no premeditation and no malice.
The prosecution countered this theory with evidence that Wine’s death was not the result of an accident, nor did defendant act in self defense, because he had a history of abusive relationships and a need to exert power and control. The jury may have questioned why Wine went back to defendant, apparently of her own free will, after her accident if the relationship was abusive. The expert testified that most abused women go through a cycle of leaving and returning to their abuser. This testimony was relevant because it helped the jury to understand why Wine would have gone back to defendant, even if their relationship was abusive. As such, the testimony was relevant and the court did not err in admitting it.
Defendant’s daughter and former wife both testified that defendant had hit them, slapped them, and pulled their hair.
Defendant also claims the prosecution put Wine’s state of mind at issue by admitting the testimony regarding BWS, thus the trial court improperly excluded as hearsay certain of Wine’s statements that had bearing on her state of mind. Of the three instances cited by defendant, in only one did he present a theory of admissibility to the trial court. His claim was that the statement made by Wine was being offered “to demonstrate this witness’s [defendant’s brother, David Colbeigh] state of mind at the time when he was trying to interpret what was happening.” Colbeigh’s state of mind was never at issue, and defendant offered no other theory of admissibility. The claim is therefore forfeited. (People v. Hart (1999) 20 Cal.4th 546, 606.)
IV
Exclusion of Investigator’s Testimony
In defendant’s first interview with authorities, he claimed Wine tried to stab him with a pair of scissors. He did not mention the scissors in his two subsequent interviews with authorities. Defendant testified at trial that Wine attacked him with a pair of scissors, but admitted on cross-examination that he never told the psychologist retained by defense counsel about the scissors.
The prosecutor called Julie LaHorgue, the defense investigator, in his rebuttal. It was established during questioning that LaHorgue spoke with defendant on several occasions. The prosecutor asked specifically about LaHorgue’s interview with defendant on February 2, 2007. In response to the prosecutor’s question, LaHorgue stated that defendant never said anything in this interview about Wine attacking him with scissors.
On cross-examination, defense counsel asked whether defendant had told LaHorgue about the scissors in any interview, to which LaHorgue replied, “Yes, he did.” The prosecutor said, “I’m going to object at this point. I have not been provided with any other interview for Ms. LaHorgue than this one. If there are going to be questions, I need to get a copy of that interview.” The objection was sustained, and defense counsel did not pursue the matter.
Defendant now claims that the objection was unfounded because his own statements did not have to be provided to the prosecution and because he was under no obligation to provide discovery for a witness he did not intend to call to testify. We conclude that if the trial court erred in sustaining the objection, defendant was not prejudiced by the trial court’s ruling, which apparently would have required defendant to produce a copy of the investigator’s report before questioning her about the report.
Defendant claims prejudice because had the jury known that he mentioned the scissors to his investigator, it would have enhanced his claim of self-defense and imperfect self-defense. He further contends the purported error was of constitutional dimension, in that the effect of the trial court's ruling was to deny him the right to confrontation and to present his defense.
“We review for abuse of discretion a trial court's rulings on the admissibility of evidence.” (People v. Benavides (2005)35 Cal.4th 69, 90.) An error is prejudicial only if it is reasonably probable that the jury would have reached a different result had the evidence not been excluded. (Id. at p. 91.) “[G]enerally, violations of state evidentiary rules do not rise to the level of federal constitutional error.” (Ibid.) In this case it is not reasonably probable the jury would have reached a different result. First, the jury was aware, because of LaHorgue’s answer on cross-examination, that she interviewed defendant at least one other time, and during that other interview defendant mentioned that Wine came at him with scissors. Second, this did not negate the fact that defendant told the story several other times, but failed to mention the scissors. Thus, the prosecutor’s point, that defendant would have consistently mentioned the scissors had Wine in fact attacked defendant with them, remained valid. Finally, as stated in section I, ante, because defendant by his own admission disarmed Wine almost immediately, and only delivered the fatal blows after he had thrown the scissors out of her reach, self defense and imperfect self defense were unavailable to him. At the time of the fatal blows, the danger no longer existed, and the force he used was excessive given Wine’s unconscious state. Any error was therefore harmless.
We reject defendant’s claim of cumulative error. The errors of which defendant complains were not independently prejudicial, and unlike People v. Hill (1998) 17 Cal.4th 800, cited by defendant, the errors were not so pervasive that they prevented him from receiving a fair trial.
V
Imposition of Upper Term
Defendant now asserts a challenge to three upper term sentences imposed by the trial court. He claims the trial court’s imposition of the upper term was not supported by an adequate statement of reasons. Because he did not object to the statement of reasons below, the claim is forfeited.
Prior to imposing sentence, the trial court announced its tentative decision as follows. The trial court proposed to sentence defendant on count three, assault with a firearm, to the upper term of four years. The court chose the upper term “because of the extent and nature of the injuries which occurred over much of the victim’s body, disclosing a high degree of cruelty and viciousness.” On the personal use of a firearm enhancement, the trial court proposed to sentence defendant to a consecutive upper term of 10 years. The court chose the upper term “because of the brutal and inhumane manner in which the firearm was used on the defenseless victim[.]” For the personal infliction of great bodily injury enhancement, the court proposed to sentence defendant to the upper term of five years. The trial court selected the upper term because it found, “that the victim was more vulnerable than a typical victim because of her physical disabilities arising out of her injuries from a prior traffic accident, and she was alone in her residence late at night with [defendant], who was a person to whom she relied for care and assistance.”
Defense counsel stated his belief, “that the court’s tentative ruling on counts two and three is appropriate analysis,” and that the 19-year-determinate sentence was appropriate, but that the court should dismiss the second degree murder count. Defendant did not object to any of the trial court’s stated reasons for exercising its discretion to impose the upper terms.
In People v. Scott (1994) 9 Cal.4th 331, 356, the Supreme Court held that a defendant may not raise for the first time on appeal any complaints about the reasons the trial court gives to support its discretionary sentencing choices. Because defendant did not raise the issues now raised on appeal, the issues are forfeited.
VI
Correction of Abstract
The trial court stayed the sentence on counts two and three. The abstract of judgment does not reflect the stay. We will direct the trial court to correct the abstract to reflect that the sentence imposed on counts two and three are stayed pursuant to section 654.
DISPOSITION
The trial court is directed to prepare a corrected abstract of judgment reflecting the stay of sentence pursuant to section 654 for counts two and three, and to send a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
We concur: NICHOLSON , J., HULL , J.