Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC060961
Parrilli, J.
This is an appeal from a judgment convicting appellant Robert “Pati” Masalosalo of voluntary manslaughter and finding true the allegation that he personally used a knife. Appellant claims his conviction should be reversed because: (1) the trial court failed to instruct the jury sua sponte on the lesser included offense of involuntary manslaughter, (2) the jury engaged in prejudicial misconduct by discussing the case outside of deliberations, and (3) the trial court erred by imposing a midterm sentence totaling seven years in state prison, requiring remand for resentencing. We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
On April 26, 2006, an information was filed charging appellant with murder and alleging he personally used a deadly weapon and inflicted great bodily injury. The charges stemmed from the killing of Lausei Tuimavave (Lausei) in East Palo Alto on August 17, 2005. Trial began June 12, 2006.
The Prosecutor’s Case.
On August 17, 2005 at 5:30 p.m., 20-year-old appellant had an argument with his stepmother, Pafuti “Cookie” Tuimavave (Pafuti), at their home in East Palo Alto. Appellant was angered by what appeared to be a love letter he found from Pafuti to Lausei, who was appellant’s uncle and married to Pafuti’s sister, Paula Tuimavave (Paula). Appellant and other family members believed Lausei and Pafuti were having an affair, and had confronted them about it, but Pafuti denied it.
Lausei was also first cousin to both Pafuti and Paula.
The argument between appellant and Pafuti ended when appellant cursed and said: “I’m going to kill Lausei.” Appellant soon afterwards left the house. Appellant’s 9-year-old stepbrother, Mao, testified that, before leaving, appellant grabbed a knife from under a chair cushion and said “I’m going to go kill Lausei.” Several months earlier, appellant had shown Mao a knife and some bullets, and had told Mao he intended to kill Lausei with the knife.
Pafuti called Lausei’s house, where he lived with Paula and Paula’s sister, Lucy Tuimavave (Lucy), and warned Paula appellant had threatened to kill Lausei. Neither Pafuti nor Paula took appellant’s threat seriously, and so did not tell Lausei of it. A short time later, at about 8:00 p.m., appellant arrived at Lausei’s house.
Appellant first entered Lausei’s house through the garage, where he found Lucy. Upset, appellant gave Lucy the love letter from Pafuti to Lausei and, according to a statement Lucy later gave police, told her: “Tell him she belongs to me.” Appellant then left the garage and went to the front door, where he asked Paula to tell Lausei, who was asleep in the bedroom, to come outside. Paula woke up Lausei and told him appellant was upset and wanted to see him. Paula tried to block Lausei from going outside to see appellant, but Lausei told her to get out of the way, and she did. At trial, Paula testified she did not recall whether Lausei had anything in his hands when he left the house. On the night of the incident, however, she told police Lausei had a bat in his hands which he used to strike appellant.
When Lausei confronted appellant, appellant punched him in the face and twice “speared” Lausei with his head. Lausei fell to the ground and appellant got on top of him. It appeared to Paula that appellant continued to punch Lausei; in fact, however, appellant was stabbing Lausei, although Paula could not see the knife.
Lucy ran outside when she heard yelling, and saw Lausei on his back with appellant on top of him. Like Paula, Lucy saw nothing in appellant’s hands, but she did see a cricket bat on the ground to Lausei’s side. Lucy did not see Lausei strike appellant with the bat.
Lucy pushed appellant away from Lausei, and appellant ran away. Lausei, bleeding, got up and yelled to Lucy: “Why didn’t [you] hold him” to “[s]top him from leaving?” Lausei then ran into the house, returning with a knife in his hand. Lucy got Lausei on the ground to try to stop the bleeding. Eventually, Lucy called 911.
Pafuti arrived at the scene soon after Lucy talked to the 911 operator, having heard from her niece that appellant stabbed Lausei. Pafuti’s arrival upset Lucy, who blamed her for the stabbing, and the women got into a physical altercation.
When police arrived, they found a chaotic scene, with 10 to 12 people (later identified as neighbors and family members) in the yard fighting and a person on the ground who appeared to be dead. Police recovered a serrated knife and a knife handle wrapped with paper, cloth and tape. They also found a pool of blood and a cricket bat leaning against the residence.
An autopsy revealed Lausei had a number of stab wounds, and died from blood loss and blood in the chest cavity.
The Defense’s Case.
Appellant testified he did not get along with Lausei, in part because Lausei had attacked appellant’s father several years ago with a machete. Appellant’s father, with whom he was close, died of cancer in August 2004. Appellant believed the affair between Pafuti and Lausei was disrespectful to his father. He did not get along well with Pafuti.
A week before the killing, appellant found the love letter from Pafuti to Lausei. The day of the killing, appellant saw Pafuti and Lausei together in the parking lot of his apartment complex. Later, after arguing with Pafuti about the love letter, appellant told her he was going to kill Lausei, and grabbed a knife from the kitchen for protection. As he walked to Lausei’s house, appellant wrapped the knife handle in a piece of his shirt to provide a better grip. Earlier, appellant had wrapped the knife handle in paper and cellophane tape. In appellant’s pocket was a bullet on which he had written Lausei’s name.
Appellant testified that he wanted to fight Lausei, and to hurt him, but not to kill him. Before trial, appellant told police that, as he walked to Lausei’s house he wanted to kill Lausei, but explained at trial his statement was “a word of expression.” Admittedly, appellant told Pafuti and his stepbrother before the killing that he wanted to kill Lausei.
After arriving at Lausei’s house, appellant spoke to Lucy and to Paula, who warned him Lausei was capable of killing someone. Lausei then walked out of the house with a bat in his hands, which he swung at appellant, aiming at his head. Appellant blocked the bat with his arm, and then punched Lausei in the face. Appellant grabbed Lausei, who continued to attack him. Fearing for his life, appellant pulled out the knife and began punching Lausei with it. Appellant did not intend to stab Lausei; he merely wanted to stop Lausei’s attack. Had Lausei not attacked him first with the bat, appellant would not have stabbed him.
Appellant admitted discussing the love letter with Lucy after arriving at Lausei’s house, but denied telling her, “Tell him she belongs to me.”
Consistent with appellant’s trial testimony, Paula told police during an interview that Lausei came to the door with a bat in his hands. Lucy testified she had in the past seen Lausei hit her sister and his daughter with a cricket bat, and he had hit her with a pipe.
A police detective confirmed appellant had cuts on his left hand and an injury to his left arm after the incident.
Finally, Lucy pulled appellant off Lausei. Appellant left when Lausei went inside the house because he feared Lausei would return with a machete.
The Verdict.
The jury returned a verdict on June 22, 2006, finding appellant guilty of voluntary manslaughter and finding true the allegation regarding personal use of a knife. The jury found appellant not guilty of murder. On August 30, 2006, the trial court sentenced appellant to a total of seven years in prison. This appeal followed.
DISCUSSION
Appellant raises three claims of error: (1) the trial court prejudicially failed to instruct the jury sua sponte on the lesser included offense of involuntary manslaughter; (2) the jury committed prejudicial misconduct by discussing the case outside of deliberations; and (3) the trial court abused its discretion by imposing the midterm sentence for manslaughter. We discuss each claim in turn.
I. Does the Failure to Instruct on Involuntary Manslaughter Warrant Reversal?
A. Failure to Instruct.
With respect to appellant’s alleged offense, the trial court instructed the jury on both first and second degree murder and voluntary manslaughter. The trial court did not instruct the jury on the lesser included offense of involuntary manslaughter. Although appellant did not rely on an involuntary manslaughter theory or request such instruction below, he claims on appeal the trial court prejudicially erred by not sua sponte giving such instruction to the jury.
We independently review a trial court’s failure to instruct on a lesser included offense. (People v. Cook (2006) 39 Cal.4th 566, 596.) A trial court’s duty to sua sponte instruct the jury on a lesser included offense arises when there is substantial evidence raising a question as to whether all elements of a charged offense are present, and when there is substantial evidence that the defendant committed the lesser included offense, which, if accepted by the jury, would exculpate the defendant from guilt of the greater offense. (Ibid.; People v. Cunningham (2001) 25 Cal.4th 926, 1008; People v. Cole (2004) 33 Cal.4th 1158, 1218.) No sua sponte duty arises to instruct the jury on a lesser included offense when “ ‘there is no evidence that the offense was less than that charged. [Citations.]’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.) An error in instructing on lesser included offenses requires reversal only if the entire record establishes a reasonable probability that the error affected the outcome. (Id. at p. 165.)
Manslaughter is the “unlawful killing of a human being without malice.” (Pen. Code, § 192.) Manslaughter is a lesser included offense of murder and can be voluntary or involuntary. (Ibid.; People v. Ochoa (1998) 19 Cal.4th 353, 422.)
Unless otherwise stated, all statutory citations herein are to the Penal Code.
Voluntary manslaughter is statutorily defined as the “unlawful killing of a human being without malice” that occurs “upon a sudden quarrel or heat of passion.” (§ 192, subd. (a).) Voluntary manslaughter may also be found “ ‘when the defendant kills in “unreasonable self-defense” – the unreasonable but good faith belief in having to act in self defense [Citations.]’ (People v. Barton (1995) 12 Cal.4th 186, 199.)” (People v. Blakeley (2000) 23 Cal.4th 82, 88 [Blakeley].)
Involuntary manslaughter is statutorily defined as an “unlawful killing of a human being without malice” that occurs: (1) “in the commission of an unlawful act, not amounting to felony;” or (2) “in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b); see also People v. Cook, supra, 39 Cal.4th at p. 596.)
Our California Supreme Court has “acknowledged that a defendant who kills in unreasonable self-defense may sometimes be guilty of involuntary manslaughter, but not if the killing took place with conscious disregard for life. (Blakeley, supra, 23 Cal.4th at p. 91; see also Blakeley, at pp. 94-100 (dis. opn. of Mosk, J.).)” (People v. Johnson (2002) 98 Cal.App.4th 566, 575 fn. 10.) Rather, “when a defendant, acting with a conscious disregard for life [and without malice], unintentionally kills in unreasonable self-defense, the killing is voluntary rather than involuntary manslaughter.” (Blakeley, at p. 91.) Likewise, when a defendant, acting without malice, intentionally kills in unreasonable self-defense the killing is voluntary manslaughter rather than involuntary manslaughter. (Id. at p. 88.)
Here, appellant contends the jury could have found he committed involuntary rather than voluntary manslaughter because there was substantial evidence he acted in unreasonable self-defense without intent to kill and without conscious disregard for life. (Blakeley, supra, 23 Cal.4th at p. 91.) Appellant points out that, in finding him guilty of manslaughter rather than murder, the jury necessarily concluded he acted without malice. (§ 192; § 187; CALJIC No. 8.50 (Spring 2007 ed.).)
Undisputedly, appellant does not meet the first statutory definition of involuntary manslaughter – an unlawful killing “in the commission of an unlawful act, not amounting to felony” (§ 192, subd. (b)) – because he killed Lausei while committing a felony – a multiple stabbing with a deadly or dangerous weapon. (§ 12022, subd. (b)(1).)
CALJIC No. 8.50, which this jury received, states in relevant part: “The distinction between murder . . . and manslaughter is that murder . . . requires malice while manslaughter does not.”
Despite appellant’s absence of malice, however, we conclude “there is no evidence that the offense was less than that charged.” (People v. Breverman, supra, 19 Cal.4th at p. 154.) Specifically, we conclude no substantial evidence existed that appellant killed Lausei without intent to kill and without conscious disregard for life, both of which the offense of involuntary manslaughter requires. (CALJIC No. 8.45; Blakeley, supra, 23 Cal.4th at pp. 88-91.) The jury was instructed that “conscious disregard for life” means “a killing [that] results from the doing of an intentional act, the natural consequences of which are dangerous to human life, which act was deliberately performed by a person who knows that his or her conduct endangers the life of another, and who acts with . . . conscious disregard for life.” Here, undisputed evidence proved appellant engaged in several intentional acts that fall within this legal definition. For example, appellant admitted hiding a knife in his apartment, which he showed to his younger stepbrother Mao, before the killing and said he would use to kill Lausei. Appellant also kept bullets, which he showed to Mao, and on one of which he wrote “Lausei.” Further, about a week before the killing, appellant took the knife he had hidden and wrapped its handle with a paper towel or napkin and “cellophane type taping.” On the day of the killing, appellant retrieved the knife and, while walking about 15 minutes to Lausei’s house, wrapped the handle in a piece of fabric from his tee shirt so it would not slip in his hand. He then used the knife to stab Lausei repeatedly, causing his death.
Undisputed evidence, including appellant’s own testimony, also established that, before the killing, appellant told at least two people – his stepmother Pafuti and younger stepbrother Mao – that he intended to kill Lausei. And the only evidence negating this intent-to-kill evidence was appellant’s own self-serving statements after the killing that he merely wanted to confront, to fight, and “to hurt [Lausei].”
Given appellant’s admitted intent to, at a minimum, hurt Lausei, as well as his advance efforts to pad the handle of the knife to improve his grip on it – which knife the jury found to be a deadly or dangerous weapon – there was no substantial evidence he acted other than in conscious disregard for Lausei’s life. In other words, no reasonable jury could have found that appellant, while repeatedly stabbing Lausei with a specially-prepared knife, was acting without intent to kill and without conscious disregard for Lausei’s life. (People v. Breverman, supra, 19 Cal.4th at p. 162 [the existence of “any evidence, no matter how weak” does not justify instruction on a lesser included offense; rather, evidence must exist from which a reasonable jury could conclude the lesser offense but not the greater offense was committed].)
Accordingly, we affirm the trial court’s decision to instruct the jury on murder and voluntary manslaughter, but not on involuntary manslaughter.
Prejudice.
And even had the trial court erred by not instructing on the lesser included offense of involuntary manslaughter, we would nonetheless conclude appellant sustained no resulting prejudice. “ ‘[I]n a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v. Watson (1956) 46 Cal.2d 818, 836]. A conviction of the charged offense may be reversed in consequence of this form of error only if, “after an examination of the entire cause, including the evidence” (Cal. Const., art. VI, § 13), it appears “reasonably probable” the defendant would have obtained a more favorable outcome had the error not occurred (Watson, supra, 46 Cal.2d [at p. 836]).’ [Citation.]” (Blakeley, supra, 23 Cal.4th at p. 93.)
Here, it does not appear reasonably probable appellant would have obtained a more favorable outcome had the involuntary manslaughter instruction been given. The evidence, set forth in detail above, strongly supported a finding of conscious disregard for life, if not intent to kill. Appellant repeatedly stabbed Lausei with a deadly weapon – a knife he had prepared in advance with a special handle designed to prevent slipping when used. Appellant told multiple people he was going to kill Lausei and had a motive – jealousy and anger over Lausei’s relationship with his stepmother, Pafuti. Evidence that Lausei had a bat at the scene of the crime that he used to strike appellant, does not negate this undisputed evidence of conscious disregard for life. Given appellant’s actions before and during the crime, it simply was not “reasonably probable” he would have obtained a more favorable outcome had no error occurred.
II. Did Members of the Jury Engage In Prejudicial Misconduct?
Appellant further contends several members of the jury engaged in prejudicial misconduct, in violation of his constitutional rights to due process, an impartial jury, and a fair trial, by discussing the case outside the jury room.
Shortly before the jury rendered its verdict on June 22, 2006, the trial court discovered Juror 10 had discussed the case with several other jurors during a break in deliberations. The trial court immediately held an evidentiary hearing, at which Jurors 3, 9, 10 and 12 testified.
Juror 9, the foreperson, testified that, in the morning of June 22, before deliberations began, she overheard Juror 10 “trying to discuss the case” with another juror and “trying to I guess express his opinion that . . . we almost came to a stalemate . . . a hung jury.” The discussion lasted several minutes, until Juror 9 advised them to stop.
Juror 10 acknowledged discussing the case for a “very short time” the morning of June 22, but said the discussion did not affect the deliberations. Juror 10 explained another juror was “commenting a bit, ” and that “maybe I said something about [the case], but not really discussing.” “Actually, we didn’t discuss anything.”
Juror 3 testified “[t]here was a discussion with another gentleman and myself when I arrived [on June 22] and he asked me how I felt last night . . . . [¶] I said . . . I felt a little bit angry.” Juror 3 explained that “a lot of emotions [were] being displayed” during deliberations, and that he “d[id]n’t know that the facts [of the case] were being discussed as much as our personal feelings.” The jurors were “absolutely not” deliberating, nor were the deliberations affected. The jurors stopped their discussion when advised to do so by the foreperson.
Juror 12 agreed there was no discussion about the facts of the case outside the jury room on the morning of June 22. Nor was there a discussion about how the jurors intended to vote or an attempt to influence the jurors’ positions. Rather, the jurors in question discussed that there would likely be another day of deliberations, and that “positions had kind of solidified.” The conversation did not affect Juror 12’s deliberations.
After the hearing, the trial court determined that “maybe a technical violation of the admonition [to not discuss the case outside the jury room]” had occurred, but that no prejudicial misconduct had resulted. The trial court explained: “[I]t does not appear . . . they were talking substantively about the case, about the law or the deliberations. They were talking more about their emotions and the fact that they had a long day yesterday, and whether they were going to be coming back tomorrow.” Appellant then moved for mistrial, which the trial court denied, finding the jurors’ ex parte discussions had not affected the deliberations. We agree with the trial court’s decision.
We review a trial court’s denial of a motion for mistrial for abuse of discretion. (People v. Bolden (2002) 29 Cal.4th 515, 555.) Moreover, in determining whether juror misconduct occurred, we “accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence.” (People v. Majors (1998) 18 Cal.4th 385, 417.)
Under section 1122, subdivision (a), jurors must not, among other things, “converse among themselves or with anyone else on any subject connected with the trial, or (subd. (b)) . . . form or express any opinion thereon until the cause is finally submitted to them.” (§ 1122.) Jurors here were apprised of this duty, as well as their duty to not discuss the case except when in the jury room in the presence of all 12 jurors. Violation of these duties, which the complaining party has the burden to prove, is “serious misconduct.” (In re Hitchings (1993) 6 Cal.4th 97, 118; People v. Stanley (1995) 10 Cal.4th 764, 836; see also In re Hamilton (1999) 20 Cal.4th 273, 305 [“[a] sitting juror commits misconduct by violating her oath, or by failing to follow the instructions and admonitions given by the trial court”].)
Further, as a general rule, juror misconduct raises a “presumption of prejudice, ” rebuttable by proof that “no prejudice actually resulted.” (In re Hitchings, supra, 6 Cal.4th at p. 118; People v. Cooper (1991) 53 Cal.3d 771, 835.) “A judgment adverse to a defendant in a criminal case must be reversed or vacated ‘whenever . . . the court finds a substantial likelihood that the vote of one or more jurors was influenced by exposure to prejudicial matter relating to the defendant or to the case itself that was not part of the trial record on which the case was submitted to the jury.’ [Citations.] . . . [¶] ‘The ultimate issue of influence on the juror is resolved by reference to the substantial likelihood test, an objective standard. In effect, the court must examine the extrajudicial material and then judge whether it is inherently likely to have influenced the juror.’ [Citations].” (In re Malone (1996) 12 Cal.4th 935, 963-964.)
To rebut this presumption of prejudice, there must be “an affirmative evidentiary showing that prejudice does not exist or . . . a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party [resulting from the misconduct] . . . .” (In re Hitchings, supra, 6 Cal.4th at pp. 118-119; People v. Williams (2006) 40 Cal.4th 287, 333.)
Here, the record amply supports the trial court’s conclusion that no prejudicial misconduct occurred. While the jurors may have violated their duties to avoid commenting on the case outside of their deliberations despite repeated instruction not to do so, any presumption of prejudice from their misconduct was adequately rebutted. The jurors’ undisputed testimony before the trial court revealed that their relatively brief discussion outside the jury room on June 22 related to their own emotions rather than to the factual and legal issues raised by the case. We defer to the trial court’s decision to accept that testimony as credible, as well as to accept the jurors’ other undisputed testimony that their discussion did not affect deliberations. (People v. Majors, supra, 18 Cal.4th at p. 417.) As such, we conclude the jurors’ conduct, while perhaps wrongful, was not “of a type likely to have had an effect on the verdict or [to have] deprived [appellant] of thorough consideration of his case . . . .” (In re Carpenter (1995) 9 Cal.4th 634, 652.) We thus reject appellant’s second claim of error.
III. Did the Trial Court Err in Sentencing Appellant to the Middle Term?
Appellant further contends the trial court abused its discretion by sentencing him to the middle term of six years rather than to the low term of three years in state prison. Appellant reasons that the “only proper sentence was the low-term” because factors presented in mitigation were predominant. We again disagree.
Appellant also received a consecutive 1-year sentence for his use of a deadly or dangerous weapon, for a total sentence of 7 years in state prison.
A trial court’s sentencing decision is a matter within its broad discretion, and we will not disturb it absent a clear showing that it was arbitrary or irrational. (People v. Scott (1994) 9 Cal.4th 331, 349; People v. Welch (1993) 5 Cal.4th 228, 234.)
“Voluntary manslaughter is punishable by imprisonment in the state prison for three, six or 11 years (§ 193, subd. (a)) . . . .” (People v. Johnson, supra, 98 Cal.App.4th at p. 577 fn. 14.) In determining which term is appropriate, the trial court must weigh both mitigating and aggravating factors. (Cal. Rules of Court, rule 4.420; § 1170, subd. (b).) “The middle term must be selected unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation.” (Cal. Rules of Court, rule 4.420, subd. (a).) “Selection of the lower term is justified only if, considering the [relevant] facts, the circumstances in mitigation outweigh the circumstances in aggravation.” (Id. at subd. (b); see also People v. Nguyen (1999) 21 Cal.4th 197, 201.)
An amendment to California Rules of Court, rule 4.420, effective January 1, 2007, has since removed this language. The amended rule, which we decline to apply retroactively, now reads:
Here, the trial court stated on the record its reasons for finding the midterm sentence of six years appropriate:
“[THE COURT] As I indicated, I’ve read the memorandums [sic] and the probation report. [¶] Having been the trial judge, I am also well familiar with the facts and circumstances of the case. [¶] . . . [W]e really don’t know what happened before. I don’t think anybody really does. There was a lot of testimony about various things that were or were not said. [¶] The bottom line is that [appellant] went over to the residence and stabbed to death an individual. [¶] In applying both the factors in aggravation and mitigation, the court engages in a balancing test. [¶] First, with respect to any application for probation, it is denied based on the serious nature of the offense and the manner in which the offense was committed. Specifically, the preparation of the weapon. [¶] The jury, however, rejected the prosecution’s theory of the killing being willful, deliberate and premeditated, and also the people’s secondary theory for a second degree murder of implied malice. [¶] The jury found the defendant appropriately in the court’s view guilty of voluntary manslaughter with the use of a weapon. [¶] As I indicated, the defense application for probation is denied. I do not believe that the aggravating factors outweigh the mitigating factors. [¶] The defendant has no prior criminal history whatsoever. He is remorseful. And the aggravating factors I think or mostly resolve with the jury’s verdict . . . . [¶] The defendant, therefore, will be sentenced to the Department of Corrections for a midterm of six years, and the court will impose an additional consecutive sentence of one year for the [section] 12022(b)(1), use of the knife allegation, for a total of seven years in state prison.”
“[DEFENSE ATTORNEY] Judge, as the defense, we are somewhat confused. If there’s [sic] aggravating factors, the mitigating factors predominate. How do we get to a midterm when the man has no criminal record?”
“[THE COURT] It’s a midterm unless there are mitigating or aggravating factors which outweigh. And it’s a midterm six years.”
This record establishes that the trial court considered both mitigating factors, including remorse and the lack of a prior criminal record (Cal. Rules of Court, rule 4.423, subd. (b)(1), (3)), and aggravating factors, including the serious nature of the offense and the advance preparation of the weapon (id. at rule 4.421, subd. (a)(1), (8)), before deciding appellant’s sentence. Moreover, the record provided an adequate basis for the trial court’s ultimate finding that neither aggravating nor mitigating factors predominated. In the absence of a clear showing that the trial court’s finding was arbitrary or irrational, we decline to set it aside on review. (People v. Welch, supra, 5 Cal.4th at p. 234.) We thus uphold its imposition of the 6-year midterm sentence.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P. J., Pollak, J.
“(a) When a sentence of imprisonment is imposed, or the execution of a sentence of imprisonment is ordered suspended, the sentencing judge must select the upper, middle, or lower term on each count for which the defendant has been convicted, as provided in section 1170(b) and these rules.
(b) In exercising his or her discretion in selecting one of the three authorized prison terms referred to in section 1170(b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer's report, other reports and statements properly received, statements in aggravation or mitigation, and any further evidence introduced at the sentencing hearing.
(c) To comply with section 1170(b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so. The use of a fact of an enhancement to impose the upper term of imprisonment is an adequate reason for striking the additional term of imprisonment, regardless of the effect on the total term.
(d) A fact that is an element of the crime may not be used to impose a greater term.
(e) The reasons for selecting one of the three authorized prison terms referred to in section 1170(b) must be stated orally on the record.”