Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-070589-7-001
RIVERA, J.
Defendant Jedidiah A. Shoemaker appeals a judgment entered upon a jury verdict finding him guilty of voluntary manslaughter. (Pen. Code, § 192, subd. (a).) He contends on appeal that the prosecutor committed prejudicial misconduct and that the trial court abused its discretion in sentencing him. We affirm.
All undesignated statutory references are to the Penal Code.
I. BACKGROUND
A. Prosecution Case
Defendant was at the home of Kinara Herron in Bay Point on the evening of November 27, 2006. Several other people were also there, including Herron, Richie Asidanya, Clay Ward, and Miguel Plaza. Some of them were “rapping” after dinner and having a good time. Plaza described the atmosphere at the house as “a little dangerous,” and said that some of the people there had “a reputation.” Plaza noticed that defendant did not “fit in,” and that although he had originally been friendly, he became quiet and had a “nasty face” after the others began rapping, although no one had been arguing with him. As the group was writing rap lyrics, defendant pulled up his shirt, took out a gun, and shot Herron in the head. Afterward, he ran out of the house.
Plaza later told a detective that defendant reached for his waistband and pulled out a gun, and said, “ ‘I could see the anger in his eyes. He pointed the gun at Herron, and when I began to run upstairs I could hear pop, pop, pop.’ ” Taylor Pina, who was also in the house on the evening of the shooting, told a deputy sheriff after the incident that defendant was “weird” and “possibly under the influence,” although at trial he denied having formed any impression of defendant. A bag containing a white powder, apparently cocaine, was later found in the living room of the house, on top of a pile of clothes that appeared to have been cut off of Herron.
The other people at the house gave conflicting testimony about who was in the room when defendant shot Herron. Plaza testified that Asidanya was in the room at the time; Asidanya testified that he was outside smoking a cigarette and did not see the shooting. Ward also testified, apparently referring to himself and Asidanya, that “[w]e was outside the house smoking a cigarette when it happened.” However, Herron’s mother, Sheryl Herron, testified that several months after the killing, Ward told her that as the group was writing rap songs and listening to music, defendant suddenly pulled out a gun and started shooting Herron, that he had a “weird look on his face,” and that the others “took off running” for fear that defendant would shoot them as well. Asidanya also told Herron’s mother that he was present when Herron was killed, that defendant took out a gun and started shooting, firing more than once, that Herron “ ‘didn’t see it coming,’ ” that defendant had a strange look on his face, and that Asidanya ran away so fast he ran out of his shoes.
Asidanya told an inspector from the district attorney’s office that he was walking in the house, rapping “freestyle,” when he heard the gunshot and turned as Herron fell. He said that defendant was approximately two feet from Herron at the time.
Herron was taken to the hospital, where he died, apparently on the following day. An autopsy revealed that he had received four separate gunshot injuries, to his head, chest, knee, and hand respectively.
The Contra Costa County Sheriff’s Department searched for defendant, and eventually found and arrested him in February 2007.
B. Defense Case
In his own defense, defendant testified that he and Herron had known each other since childhood, and he was spending Thanksgiving weekend at Herron’s house. While he was at the house, he saw “a lot of drugs, a lot of drinking, a lot of weed,” and drugs were being sold. He testified that although the atmosphere at the Thanksgiving celebration had been “cool,” the atmosphere had changed on the evening of the Monday after Thanksgiving, the day of the shooting. At that time, the atmosphere was “cloudy” and there was “a little tension in the air.” He and some of the others played dominoes, and Asidanya was talking an “excessive amount,” “talking shit,” and defendant “felt kind of weird.” When Asidanya started “saying the rap,” he moved toward defendant and was “all in [his] face,” saying in his rap, “ ‘You got guns. We got guns too.’ ” As he did so, Asidanya lifted his coat, and defendant saw a gun. Asidanya reached for the gun, then turned around and walked back around the table. Defendant looked at Herron, as if to ask what was going on, and Asidanya pulled out his gun, then sat down, the gun on the table and his hand on the gun. Defendant saw Ward and Plaza “reaching and clutching like they was going to pull something out,” and Asidanya nodded at them. Defendant testified, “[W]here I am from you don’t pull guns out and don’t use them,” and he pulled out his own gun and started shooting while he ran for cover behind a wall, shooting in the general direction of the others. He described himself as “spooked,” “shocked,” and “in fear,” and he shot because he feared for his life. He stopped shooting when the others ran. Herron fell, and defendant ran away.
Defendant testified that he carried a loaded gun because he had heard that some people in Sacramento wanted to rob him, and that in the lifestyle he led “in the streets,” “you never know what’s going to happen.” He had gotten $2,500 the day he shot Herron, and believed the others might have intended to rob him.
Defendant introduced evidence that Asidanya had a reputation for violence and for carrying a gun; that he had been seen with a “silver weapon” that looked like a gun in the past; that when a witness had accused him of burglarizing his house, Asidanya had told him, “ ‘I will come back and take care of you and [the witness’s family],’ ” and “ ‘you better watch your step from now on mother fucker,’ ” and had threatened to shoot him.
A former girlfriend, Nicole Singleton, testified that after Herron’s death, defendant told her someone had pulled a gun out and put it on his lap, and indicated he had reacted by shooting a gun. On cross-examination, Singleton testified that after a friend of defendant’s named George was murdered, defendant’s personality changed, he acted “weird” and was “really, really sad,” that he began using drugs, and that on one occasion he “ ‘jumped on [her]’ ” and beat her up. She acknowledged having told an investigator that during a period that she lived with defendant, in May 2006, defendant was “paranoid,” although when asked to elaborate, she described defendant as “not paranoid, just cautious, cautious of his surroundings, you know, thinking maybe people might want to hurt him or do something to him, but not, not paranoid, just cautious.”
During the defense case, Asidanya testified again, and denied ever carrying firearms. He also testified that he did not speak to defendant; that he did not say to him, “ ‘You’ve got a gun. I’ve got a gun too’ ”; that he did not take out a gun and put it on a table on the evening of the shooting; and that to his knowledge no one other than defendant had a gun that evening.
C. Verdict and Sentence
The jury found defendant not guilty of murder (§ 187), but guilty of the included offense of voluntary manslaughter (§ 192, subd. (a)), and found true a firearm allegation. The trial court sentenced him to a total term of 27 years in prison, based on the upper term of 11 years, doubled pursuant to section 1170.12, subdivision (c)(1); four years for the firearm enhancement (§ 12022.5, subd. (a)); and one year for a prior prison term (§ 667.5).
II. DISCUSSION
A. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct both during cross-examination and while arguing the case to the jury. “ ‘ “The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘ “A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’ ” ’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘ “ ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ ” ’ [Citation.]” (People v. Gray (2005) 37 Cal.4th 168, 215-216 (Gray).) A claim of prosecutorial misconduct is generally forfeited on appeal unless the defendant raised the point in a timely manner and asked the trial court to admonish the jury to disregard the impropriety. (Id. at p. 215.) We reverse for prosecutorial misconduct only if the misconduct prejudiced the fairness of the trial; for misconduct under state law, we look at whether it is reasonably probable that a more favorable result would have occurred if the prosecutor had refrained from misconduct. If the misconduct rises to the level of a violation of the defendant’s rights under the federal Constitution, we reverse for misconduct unless it was harmless beyond a reasonable doubt. (People v. Bolton (1979) 23 Cal.3d 208, 214.)
1. Mischaracterization of Testimony
Defendant testified that on or after January 15, 2007, while he was still evading the police, he called Singleton a number of times and asked to meet her at a park, then stayed with her for a few days. The following exchange occurred: “Q. Now, Mr. Shoemaker, Ms. Singleton was afraid of you, correct? [¶] A. No. [¶] Q. No, she wasn’t afraid of you? [¶] A. No. [¶] Q. She wasn’t afraid of you because of your past violent behavior with her? [¶] A. No. [¶] Q. She wasn’t afraid of you because you would get weird and paranoid when you were using drugs? [¶] A. No. I’ve always been like that. You got to be cautious when you are out there on the streets. I’m always like that. [¶] Q. I mean, not to make light of what you’ve just said, so, ‘I’ve always been weird and paranoid,’ not just when you are using drugs? [¶] A. Not paranoid, I’ve been cautious.”
Defendant contends the prosecutor mischaracterized this testimony in subsequent cross-examination. In questioning him about the events immediately before the shooting, the prosecutor said, “Q. You are standing there just watching Kinara as he’s hanging out with his guys having a good time, just rapping and you’re getting mad. Just like you said earlier, even if you are not doing drugs you get paranoid and weird? [¶]... [¶] Q. And you stood there watching these friends having fun.” The trial court overruled an objection, and defendant answered, “No,... I wasn’t mad at that time. No.” Shortly afterward, in cross-examining defendant about whether he took responsibility for his past parole violations and his conduct during a previous prison term, the prosecutor asked, “And in your own words, you get a little weird and a little paranoid and you perceive that you are being disrespected when that’s not even happening; isn’t that true?” The trial court overruled an objection, and defendant responded, “Not even true. It’s not. No.” Finally, challenging defendant on his position that the atmosphere in Herron’s house before the shooting was tense, the prosecutor asked: “Q. You said that everything changed, that it seemed tense in the house after you returned the night that Kinara was murdered? [¶] A. Right. [¶] Q. Isn’t it true the only thing[s] that changed in that house were your perceptions? [¶] A. No. [¶] Q. That you became paranoid that you were being disrespected, that people were clowning you and that Kinara wasn’t sticking up for you? [¶] A. No. [¶] Q. Isn’t it true that the reason your perception changed that night from the house being a calm, warm, friendly place, that people would come to socialize, isn’t it true that your perceptions changed because you were paranoid either from whatever personality issues you have or from doing cocaine? [¶] No.”
Defendant contends that in indicating that defendant had testified he became “weird and paranoid,” the prosecutor improperly mischaracterized his testimony. Defendant is correct that it is misconduct for a prosecutor to mischaracterize evidence. (People v. Hill (1998) 17 Cal.4th 800, 823.) Here, however, at least one of defendant’s responses could reasonably be interpreted to indicate that he did in fact become “weird and paranoid”: When asked if he got weird and paranoid when using drugs, defendant initially responded, “No. I’ve always been like that. You got to be cautious when you are out there on the streets. I’m always like that.” In any case, even if we were to conclude the comments mischaracterized defendant’s testimony, they could have caused no prejudice, as the jury heard other testimony describing defendant as both “weird” and “paranoid” and indicating that he used drugs. In the circumstances, the prosecutor did not commit prejudicial misconduct.
Singleton told an investigator that in May 2006, when she was living with defendant, he was paranoid, although when asked to elaborate at trial, she described him as “not paranoid, just cautious.”
2. Cross-examination Regarding Previous Events
Defendant also contends the prosecutor committed misconduct when cross-examining Singleton regarding the death of defendant’s friend George. The prosecutor asked Singleton, “Do you remember that a friend of Mr. Shoemaker’s knew [sic] George was murdered in Sacramento?” Singleton replied, “Yes,” and the prosecutor began her next question: “And the word on the street was—” Defense counsel objected, and outside the presence of the jury, requested a mistrial, contending the prosecutor’s question suggested to the jury that defendant had murdered George. The trial court denied the motion, concluded the prosecutor had not committed misconduct, and refused to admonish the jury. In response to the prosecutor’s next reference to the murder of George, Singleton testified that she did not know he was murdered. The prosecutor went on to elicit testimony that after George’s death, Singleton noticed that defendant’s personality had changed, that he was acting weird, and that he had begun to use drugs. In later argument on the issue outside the jury’s presence, the trial court stated, “from the questions that were asked, this jury has not received any information from which it could come even close to drawing [the] inference” that defendant was responsible for George’s death.
In response to later questioning by defense counsel, Singleton testified that after George’s death, defendant was “really, really sad,” that he cried when he and Singleton visited the grave site, and that defendant reacted to the event by being more cautious.
We agree with the trial court that the references to George’s death did not indicate to the jury defendant murdered him. There is no basis to conclude the jury would interpret the cryptic reference to “the word on the street” to mean that defendant had killed George or that defendant’s behavior after the death of a friend was attributable to consciousness of guilt. The trial court properly concluded that the prosecutor did not commit misconduct in this line of questioning.
3. Cross-examination on Prearrest Silence
Defendant next contends that the prosecutor improperly commented on his failure to reveal his defense before trial. While cross-examining defendant, the prosecutor asked, “This is the first time that you’ve told this story about anyone else in Kinara’s house having a gun.” Defendant objected, and outside the presence of the jury, the trial court overruled the objection but directed the prosecutor to make clear that her line of questioning was limited to the period before defendant was apprehended. The prosecutor then elicited defendant’s testimony that he had not called either the Contra Costa County Sheriff’s Department, a police department, or Herron’s family after the shooting to tell them he had acted in self-defense. In doing so, defendant contends, the prosecutor committed misconduct.
In California, a criminal defendant’s silence after a Miranda warning has been given may not be commented upon. (People v. Free (1982) 131 Cal.App.3d 155, 165 (Free); see also Doyle v. Ohio (1976) 426 U.S. 610, 611, 619 (Doyle) [use of defendant’s silence at time of arrest after receiving Miranda warning to impeach exculpatory story told for first time at trial violates due process]; People v. O’Sullivan (1990) 217 Cal.App.3d 237, 244-245 [limiting exclusion of evidence of postarrest silence to circumstances in which federal law would compel exclusion].) However, “[p]rearrest silence may be commented upon unless the court finds the silence was an invocation of Fifth Amendment rights. Prearrest silence in circumstances in which there is no inference of a reliance on the right to silence may be used to impeach by way of cross-examination.” (Free, supra, 131 Cal.App.3d at p. 165, italics added; see also People v. Givans (1985) 166 Cal.App.3d 793, 801 [“prearrest silence can be used to impeach the defendant’s trial testimony unless the court finds the silence was an invocation of Fifth Amendment rights”]; People v. Burton (1981) 117 Cal.App.3d 382, 385-387 [defendant’s prearrest failure to explain incident in question properly used to impeach testimony that he acted in self-defense]; Jenkins v. Anderson (1980) 447 U.S. 231, 240 241 [use of prearrest silence to impeach defendant’s credibility does not violate federal Constitution].)
The court in Free concluded the prosecutor had not committed misconduct in eliciting testimony—from a defendant who testified that he killed the victim in self-defense—that he had not gone to the sheriff’s office or the police department after the killing to explain the circumstances of the killing. (Free, supra, 131 Cal.App.3d at pp. 158-161, 165-166.)
Defendant acknowledges that the line of questioning he challenges was directed to his silence before being arrested and so does not fall within the rule of Doyle. Rather, he contends the questioning violated his right to withhold notice of his defense and not to speak with the prosecutor or police. For this proposition, he relies on People v. Lindsey (1988) 205 Cal.App.3d 112, 116-117, which concluded that the prosecutor there improperly commented in closing argument that defense counsel had not revealed the defendant’s alibi defense before trial. The appellate court stated, “Lindsey had a constitutional right to remain silent and not discuss his alibi with the prosecutor or the police. He also had a judicially-bestowed right to withhold any advance notice of the alibi defense. (Reynolds v. Superior Court (1974) 12 Cal.3d 834....) These rights would be stripped of much of their meaning and effect if the prosecutor were permitted to use their exercise against the defendant at trial. The prosecutor’s use of Lindsey’s pretrial silence through his counsel concerning the alibi unfairly infringed his exercise of the right not to speak to the prosecutor or the police and thus was a violation of due process.” (Lindsey, supra, 205 Cal.App.3d at p. 117.) Reynolds, upon which the Lindsey court relied, did not hold that a defendant may not be cross-examined on his or her failure to reveal an alibi before being arrested, but rather considered whether the trial court there had properly directed the defendant to give the People at least three days’ notice before calling any alibi witnesses at trial, and declined “to create by judicial decision a notice-of-alibi procedure for California courts.” (Reynolds, supra, 12 Cal.3d at pp. 836-837, 849-850.)
Lindsey and Reynolds are not apposite. The issue before us is not a defendant’s right to withhold alibi evidence while awaiting trial, but whether his prearrest silence may be used to impeach the credibility of his testimony that he acted in self-defense. In these circumstances, we conclude that the holdings of Free and Burton are applicable, and that the prosecutor did not act improperly in impeaching defendant with his failure to contact law enforcement officers after the killing to tell them he had acted in self-defense.
4. Appeals to Sympathy for Victim and Family
Defendant also contends the prosecutor improperly appealed to the jury’s sympathy for Herron and his family. An appeal to the jury’s sympathy is “ ‘out of place during an objective determination of guilt.’ ” (People v. Kipp (2001) 26 Cal.4th 1100, 1130 (Kipp).)
Defendant did not object to most of the references that he now contends improperly appealed to the jury’s sympathy. As we have noted, a claim of prosecutorial misconduct is generally forfeited unless raised in a timely manner. (Gray, supra, 37 Cal.4th at p. 215.) Defendant contends, however, that to the extent his counsel failed to preserve this claim for appeal, he received ineffective assistance of counsel. We shall consider the issue on the merits.
A friend of Herron, Steve Serna, testified as a witness for the defense that on November 30, 2006, two sheriff’s deputies asked him if Herron’s family knew where defendant was, and Serna told them the family would not give them any information and that it would handle the matter itself. On cross-examination, Serna testified that he went to the hospital after Herron was shot, and that he saw members of Herron’s family there. The prosecutor asked how long Herron had lived before being taken off life support, and Serna testified Herron had lived “maybe” three or four days. The prosecutor asked whether he had had much contact with Herron’s family during that time, and he responded in the affirmative, and when asked, said he had not heard any family member threaten to kill defendant. Asked his opinion of Herron’s family, he testified that it was “one of the most loving families” he had ever met. Asked his opinion of the suggestion, made in direct examination, that Herron’s family planned to have defendant killed, Serna testified that it was “far-fetched” and contrary to what he knew of the Herron family. In eliciting this testimony, defendant contends, the prosecutor improperly appealed to the jury’s sympathy for Herron and his family.
We disagree. In context, this cross-examination was a fair attempt to explore the basis for defendant’s suggestion, raised during direct examination of Serna, that members of the Herron family did not cooperate with law enforcement officers after the shooting because they intended to have defendant killed. The prosecutor’s questions were directed not at exploiting the jury’s sympathy for Herron and his family, but at determining how much time Serna had spent with Herron’s family after the shooting and whether they had indicated they were likely to act as defendant suggested. There was no impropriety.
We also reject defendant’s challenges to certain statements the prosecutor made in her rebuttal argument. During defense counsel’s closing argument, she told the jury that Herron had been convicted of armed robbery and of being a felon with a firearm, that he had served time in state prison, and that defendant should not be seen as “a snake that entered the [G]arden of Eden and everything was lovely before that.” Without discounting the importance of Herron’s death or his family’s suffering, she argued, the jury should consider that defendant was “a man among similar men.” In rebuttal, the prosecutor argued that defense counsel was “attempting to victimize Kinara Herron again,” and asked, “How do you think his family has felt sitting through this?” She stated that Herron’s character was not at issue, and went on, “Kinara Herron never had the opportunity to come into this courtroom and testify to you. You have no idea what kind of changes he had made in his life, the businesses he had started, the fact that he had applied to college. You had no idea of that. You have no idea what kind of a person he was. You haven’t even been allowed to see a photograph of him.” Defense counsel objected to any commentary on the court’s rulings, and the court reminded the jury that statements of attorneys were not evidence. Shortly thereafter, the prosecutor argued, “[N]ot only has [Herron’s] family been victimized through this case losing him, they’ve had to sit through this trial with character assassination of Kinara Herron who wasn’t even allowed to be a witness, so please think about the fairness of that.”
Even assuming this commentary improperly appealed to the jury’s sympathy, we would not conclude defendant suffered prejudice. The comments were relatively brief, and were not inflammatory. (See Kipp, supra, 26 Cal.4th at p. 1130 [no reversal where prosecutor’s comment was brief, mild, and not repeated]; compare People v. Fields (1983) 35 Cal.3d 329, 361-363 [graphic description of victim’s sufferings during events leading up to murder and invitation for jurors to think of selves as victim improper, though not prejudicial in context].) Furthermore, the jury was instructed that it should not allow sympathy to influence its decision and that statements of counsel were not evidence. In the circumstances, we see no basis to conclude the jury would have reached a different conclusion in their absence. (Fields, at p. 363.)
B. Imposition of Upper Term
Defendant contends the trial court abused its discretion in imposing the upper term for manslaughter. The trial court explained its reasons for exercising its sentencing discretion in this manner as follows: “From my perspective the crime did involve great violence with four shots having been fired. Actually, more than four shots, but four from my perspective directed at a single person, undermining a representation that a person of Mr. Shoemaker [sic] was acting in self-defense against other people in the household at that time. [¶]... [¶] And his very possession of the firearm is suggestive of an intent which arose before the firing of the shots. [¶] In other words, that it was not the actions of the other people in the household that at that moment provoked Mr. Shoemaker to act.” (Italics added.) As additional bases for its decision to impose the upper term, the trial court indicated that the crime showed sophistication, that defendant’s convictions as an adult were numerous and of increasing seriousness, that he was on probation at the time of the crime, and that his performance on probation was unsatisfactory. The court stated that it would impose the upper term on the basis of any one of these factors.
Based on the italicized language, defendant contends the trial court improperly considered factors the jury had found not to be true when it found him not guilty of murder and guilty of manslaughter. That is, he contends that when the jury found him guilty of manslaughter rather than murder, it necessarily made the finding that he had acted in the heat of passion or in imperfect self-defense, and that these findings were inconsistent with the trial court’s stated reasons for its sentencing choices.
The jury was instructed on manslaughter as a lesser offense of murder, on theories both of provocation and imperfect self-defense. After being instructed that a killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed because of a sudden quarrel or in the heat of passion, the jury was told: “The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden you must find the defendant not guilty of murder.” Similarly, the trial court instructed the jury that defendant acted in imperfect self-defense if he actually believed he was in imminent danger of being killed or suffering great bodily injury and actually believed that the immediate use of deadly was necessary to defend himself, but one of those beliefs was unreasonable. The court went on to explain: “The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden you must find the defendant not guilty of murder.” Thus, the jury was instructed not that it should find defendant guilty of manslaughter rather than murder only if it affirmatively found that he had acted under provocation or in imperfect self-defense, but rather that it must find him not guilty of murder if the People had not met their burden to prove that he had not done so. The verdict therefore does not imply a finding that defendant actually acted under provocation or in imperfect self-defense, but only that defendant’s conduct was not justified and that the People had not proved lack of provocation or self-defense with the requisite certainty.
The jury was also instructed that if the People had not proved beyond a reasonable doubt that defendant’s conduct was not justified, it must find defendant not guilty of murder or manslaughter.
Our Supreme Court in People v. Towne (2008) 44 Cal.4th 63, 83-89 (Towne), considered a similar issue. The defendant there was charged with carjacking (§ 215, subd. (a)), kidnapping (§ 207, subd. (a)), second degree robbery (§ 211), grand theft of an automobile (§ 487, subd. (d)), making criminal threats (§ 422), kidnapping to commit carjacking (§ 209.5, subd. (a)), kidnapping to commit robbery (§ 209, subd. (b)(1)), and “ ‘joyriding’ ” (Veh. Code, § 10851, subd. (a)). (Towne, at p. 72.) The jury convicted the defendant of only the joyriding charge, acquitting him on all other counts. (Id. at p. 73.) The trial court sentenced him to the upper term based on two factors: its conclusion that the crime was aggravated because the victim was in fear for his life, and the defendant’s lengthy criminal history. (Ibid.)
The defendant contended that the trial court abused its discretion and violated his constitutional rights in imposing the upper term because it took into account facts that the jury implicitly found not to be true; that is, according to the defendant, “the trial court’s reliance upon its own conclusion that the victim was put in fear is in direct conflict with the jury’s decision to acquit defendant of all charges involving the element of force or fear.” (Towne, supra, 44 Cal.4th at pp. 73, 83-84.) The court rejected this contention. In doing so, it discussed People v. Levitt (1984) 156 Cal.App.3d 500, a case—like this—in which the defendant was charged with murder but convicted of only voluntary manslaughter. (Towne, supra, 44 Cal.4th at p. 85.) In sentencing the defendant to the upper term, the trial court had relied in part on the victim’s vulnerability, a factor that the Court of Appeal in Levitt acknowledged “ ‘may be contrary to the jury’s implied findings of no malice.’ ” (Towne, at p. 85, citing Levitt, supra, 156 Cal.App.3d at pp. 514-515.) The court in Towne went on: “[The Levitt court] concluded that ‘the trial court was entitled to take such a contrary view. The jury’s verdict did not imply a rejection of the evidence of malice; it merely meant that the jury did not feel malice was proven beyond a reasonable doubt. The standard governing a sentencing court is far less stringent; the court need only determine whether aggravating factors are established by a preponderance of evidence.’ ” (Towne, supra, 44 Cal.4th at p. 85.)
The court in Towne ruled that the trial court there had not acted improperly, noting that the trial court has “broad discretion to consider relevant evidence at sentencing,” and that “[n]othing in the applicable statute or rules suggests that a trial court must ignore evidence related to the offense of which the defendant was convicted, merely because that evidence did not convince a jury that the defendant was guilty beyond a reasonable doubt of related offenses.” (Towne, supra, 44 Cal.4th at pp. 85-86.) The court concluded that the defendant had “received the benefit of the jury’s acquittal, because the resulting sentence imposed by the trial court was limited to that available for the offense of joyriding. We perceive no unfairness in permitting the trial court, in selecting the sentence most appropriate for the crime, to take into account all of the evidence related to defendant’s conduct in committing that offense.” (Id. at pp. 88-89.)
The holding of Towne is applicable here. As in Towne and Levitt, the jury’s verdict did not imply rejection of the evidence that defendant had not acted in imperfect self-defense or under provocation, but only that those facts had not been proven beyond a reasonable doubt. Under the circumstances, the trial court could properly take into account the evidence related to the shooting when selecting the appropriate sentence.
The presence of a single proper aggravating circumstance is sufficient to support the imposition of the upper term. (People v. Black (2007) 41 Cal.4th 799, 813; People v. Yim (2007) 152 Cal.App.4th 366, 369.) Indeed, the trial court stated that it would have imposed the upper term based on any of the factors it relied on. Accordingly, we need not consider defendant’s challenges to the other factors the trial court cited.
C. Denial of Motion to Dismiss Strike Offense
In a related argument, defendant contends the trial court abused its discretion in denying his motion to dismiss a “strike” prior conviction. The trial court found true an allegation that defendant had suffered a prior conviction of a strike offense, for first degree burglary. (§ 459.) Defendant asked the court to strike the prior conviction in the interest of justice, noting that the conviction had occurred in 1995, when defendant was 18 years old, and that his only other offenses were misdemeanors. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) The trial court rejected the request, doubling the 11-year term pursuant to section 1170.12, subdivision (c)(1).
Our Supreme Court has ruled that in deciding whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, “the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as through he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) We review the trial court’s decision for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374; People v. Cluff (2001) 87 Cal.App.4th 991, 998.) The burden is on the party attacking the sentence to show clearly that the sentencing decision was irrational or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)
Defendant contends the trial court’s decision not to strike the prior conviction allegation was improperly based on its view that defendant had not acted in imperfect self-defense or in response to provocation. Even assuming the trial court’s decision not to strike the prior conviction arose from this view, our previous conclusions compel us to reject defendant’s argument. As we have discussed, the jury did not find that defendant had actually acted in response to provocation or in imperfect self-defense, but only that the prosecution had not met its burden of proving murder beyond a reasonable doubt, and the trial court could permissibly take into account evidence related to the crime of which defendant was convicted in making its sentencing decision. (See Towne, supra, 44 Cal.4th at pp. 85-86.) Nothing in this record required the trial court to conclude that defendant was outside the spirit of the three strikes scheme, and we discern no abuse of discretion. (See Williams, supra, 17 Cal.4th at p. 161.)
III. DISPOSITION
The judgment is affirmed.
We concur: REARDON, Acting P.J., SEPULVEDA, J.