Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR527966
RIVERA, J.
Defendant Jesus Vasquez-Carreno appeals a judgment entered upon a jury verdict finding him guilty of making a criminal threat, battery with serious bodily injury, exhibiting a deadly weapon, and assault with a deadly weapon. We shall order the judgment modified to strike an enhancement, and affirm the judgment as modified.
I. BACKGROUND
Defendant was charged by amended information with making a criminal threat (Pen. Code, § 422) (count 1), battery with serious bodily injury (§ 243, subd. (d)) (count 2), exhibiting a deadly weapon (§ 417, subd. (a)(1)) (counts 3 & 5), and assault with a deadly weapon (§ 245, subd. (a)(1)) (count 4). The amended information included various enhancement allegations.
All undesignated statutory references are to the Penal Code.
Defendant lived in Petaluma with several other people in a house in which his sister rented out rooms. On January 9, 2008, one of the other residents, Alexander Meza-Flores, heard defendant using a vacuum cleaner that belonged to Meza-Flores. In the past, the vacuum cleaner had not always been returned to its place, and Meza-Flores went downstairs to ask defendant to put it away when he finished. Defendant attacked Meza-Flores, “throwing” him against a wall, and “settl[ing] it by blows.” Meza-Flores asked defendant why he was pushing him, and defendant attacked him, fighting “like Mike Tyson” and using profanity. It appeared to Meza-Flores that defendant’s face looked like it “wasn’t his face. He seemed like he was someone else,” and that defendant “lost completely his head because he got so, so angry.” Defendant struck Meza-Flores multiple times on his body and hit him on the cheek. Meza-Flores briefly lost consciousness, and when he awoke, defendant kicked him close to his groin and on his calf. Another resident, Moises Candiani, came downstairs, carrying his young daughter, and said, “We’re going to call the police.”
Meza-Flores testified through a Spanish-language interpreter. Defendant was also assisted by an interpreter during trial.
Defendant went into the kitchen, and Meza-Flores heard a drawer opening. Defendant came back with a long-bladed kitchen knife in his hand. Moises Candiani ran upstairs with his daughter, and defendant followed him. Meza-Flores heard defendant throwing himself hard against a door, as if trying to open it.
Defendant went back downstairs, the knife still in his hand, and said, “All right now, son of a fucking bitch, we’re going to see what kind of leather yields more straps,” which Meza-Flores understood to mean defendant would be the victor, even if the police were called. Defendant also said something like, “Shut up, you son of a fucking bitch, or I will kill you.” When he said this, he was holding the knife outward. Meza-Flores described defendant’s mood by saying, “he wasn’t himself. He seemed to be—have lost his judgment.” Meza-Flores yelled loudly at defendant to calm down, and defendant went into the kitchen, carrying the knife. When he came back out, the knife was no longer in his hand. Defendant then sat down. Within defendant’s earshot, Meza-Flores called the police, and defendant said he didn’t care, and “Let’s see who they [take away], you or me.” A transcript of the 911 call showed that Meza-Flores told the dispatcher that the person who had attacked him was “a crazy guy,” and “He’s crazy, just because he wanted to use my vacuum [unintelligible].”
The interpreter described this expression as “idiomatic.”
After the incident, Meza-Flores’s cheek was bleeding and had to be sutured, and his face was swollen and bruised. The bruises took about a month to disappear. His body was also bruised.
Candiani testified that he and Meza-Flores spoke briefly in the upstairs area of the house on the morning in question, and Meza-Flores then went downstairs. Candiani then heard the sound of blows and Meza-Flores asking defendant why he was hitting him. Candiani looked down the stairs, and saw defendant hitting Meza-Flores with his fist. Meza-Flores was “knocked out” on the stairs. Candiani went downstairs, carrying his daughter, helped Meza-Flores up, and saw that his face was bleeding. He told defendant to calm down, and defendant ran to the kitchen, appearing angry. Candiani heard the sound of knives moving in the kitchen, and told Meza-Flores to run. Defendant chased Candiani, a knife in his hand, and Candiani ran up the stairs with his daughter and closed the door of his room. He heard the sound of defendant pushing against the door, trying to knock it down, while shouting obscenities and saying he would “hit [Candiani] very hard.” Candiani heard the sound of Meza-Flores speaking to the police, and heard defendant tell Meza-Flores he would kill him. He went downstairs, and saw Meza-Flores on the telephone, and defendant sitting down. Candiani heard defendant say to Meza-Flores, “Be quiet or I am going to let you fucking have it.” Candiani told defendant he was making a mistake and “got [himself] in a big problem,” and defendant replied, “You keep fucking with me and I’m going to do something to you also.” The police then arrived.
Candiani testified through an interpreter. The Spanish phrase defendant used was, “Te voy a dar en la madre.” The interpreter first translated this phrase as “I am going to let you fucking have it.” Candiani later testified that the phrase could have “a lot of meanings,” and that it was a threatening phrase.
Officer Arthur Farinha, a Petaluma police officer, saw blood on Meza-Flores’s cheek and bruising around his left eye and cheek, and a bruise on a leg.
Defendant testified that on the morning of January 9, he began cleaning the house, and Meza-Flores walked over the freshly mopped kitchen floor. Defendant went upstairs to get the vacuum cleaner, took it downstairs, and began vacuuming the dining room area. After about two minutes, Meza-Flores came downstairs, appearing upset, and, using profanity, asked defendant why he had taken the vacuum. Still using profanity, Meza-Flores pulled the vacuum cleaner aside and began kicking defendant. Defendant put out his forearm to block a kick, and Meza-Flores fell sideways. Defendant then went to the living room and sat down. Meza-Flores told defendant he would “pay for it.” Candiani came downstairs and told Meza-Flores to calm down, and separated defendant and Meza-Flores. Defendant testified that he never got a knife from the kitchen, did not brandish a knife, did not chase Candiani upstairs, did not threaten to kill or stab Meza-Flores, did not hit or kick Meza-Flores, and did not use profanity toward either Meza-Flores or Candiani. He did not know how Meza-Flores received his injuries. He also testified that he suffered from epilepsy, and that during the incident, he felt that he might go into a convulsion at any moment.
Defendant’s sister, Floricel Vasquez, testified on his behalf that before the date in question, Meza-Flores had complained about defendant lying down and watching television instead of looking for work. After the incident, Candiani called Floricel and told her defendant and Meza-Flores were arguing, and “wanted to hit each other.” He did not tell her he had seen defendant with a knife in his hand or that defendant had threatened to kill either Candiani or Meza-Flores.
To avoid confusion with defendant, we shall refer to Floricel Vasquez by her first name. We mean no disrespect by this designation.
The jury found defendant guilty of all charges. The trial court suspended imposition of sentence and placed defendant on probation for three years, 364 days of that time to be spent in county jail. This timely appeal ensued.
II. DISCUSSION
A. Asserted Instructional Error
1. Unconsciousness
Defendant contends there was substantial evidence that he was not conscious when he committed the crimes, and that the trial court therefore had a sua sponte duty to instruct on the defense of unconsciousness.
CALCRIM No. 3425, with which defendant contends the jury should have been instructed, provides that a defendant is not guilty of a crime if he or she acted while legally unconscious; that someone is legally unconscious when he or she is not conscious of his or her actions; and that unconsciousness may be caused by, among other things, an epileptic seizure.
“[A]s a corollary of its duty to instruct on all principles closely and openly connected with the facts of the case, and which are necessary for the jury’s understanding of the case [citations], the court must instruct on an affirmative defense, specifically including unconsciousness, even in the absence of a request, ‘if it appears the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citation.]” (People v. Boyer (2006) 38 Cal.4th 412, 468-469; see also People v. Rogers (2006) 39 Cal.4th 826, 887 (Rogers).) Unconsciousness, if not caused by voluntary intoxication, is a complete defense to a criminal charge. (People v. Halvorsen (2007) 42 Cal.4th 379, 417 (Halvorsen); § 26, class Four.) “Unconsciousness for this purpose need not mean that the actor lies still and unresponsive.... [U]nconsciousness ‘ “can exist... where the subject physically acts in fact but is not, at the time, conscious of acting.” ’ [Citations.]” (People v. Ochoa (1998) 19 Cal.4th 353, 423-424.) An epileptic seizure may be one cause of unconsciousness. (See People v. Freeman (1943) 61 Cal.App.2d 110, 115.) The defendant has the burden of producing evidence of unconsciousness if he or she wishes to rely on that defense. (People v. Froom (1980) 108 Cal.App.3d 820, 830.)
Defendant contends there was substantial evidence he acted while unconscious due to an epileptic seizure. He points out that there was testimony that he suffered from epilepsy and that he sat down during the incident because he felt that he was about to have a convulsion. Both Meza-Flores and Candiani described him as having gone “crazy” during the incident, and Meza-Flores indicated that defendant’s face appeared different, saying, “I saw a face to him that... wasn’t his face. He seemed like he was someone else. [¶]... I believe that just there at that moment, he lost completely his head because he got so, so angry.” According to Meza-Flores, defendant was “like a different man,” and did not care if the police were summoned. Defendant also points out that he calmed down when Meza-Flores yelled loudly at him, in a manner that he had seen used on wild bears on television.
We reject this contention. Defendant did not rely on the defense of unconsciousness at trial. (See Rogers, supra, 39 Cal.4th at p. 887.) No expert testified about the effects of his epilepsy, and although defendant’s version of events conflicted with that of the two victims, nothing in his testimony indicated he was unable to recall the events at issue.
In these respects, this case differs fundamentally from People v. Baker (1954) 42 Cal.2d 550, upon which defendant relies. The high court there noted that the instruction on the complete defense of unconsciousness had properly been given where there was evidence that the defendant was unconscious at the time he killed his wife due to “the ‘clouded state’ of an epileptic attack.” (Id. at p. 575.) The evidence included medical testimony that defendant had been diagnosed as “an epileptic with clouded state and equivalents,” and that the clouded state was “an equivalent or substitute for the epileptic convulsion,” and that it involved a “ ‘narrowing in of the state of consciousness,’ ” in which the patient did not appear to have anything wrong with him, but could walk, talk, and do other actions; however, the patient lacked certain inhibitions and could become extremely aggressive and violent. The clouded state could last for several days. (Id. at p. 555, & fn. 1.) There was evidence that the defendant had been previously committed to a state mental hospital because of the frequency and severity of his clouded state and seizures, and that a doctor concluded the defendant was in a clouded state later on the day of the killing. (Id. at pp. 556, 559-560.)
No such evidence existed here. We recognize the evidence that defendant suffered from epilepsy and that he testified that he “was starting to feel that [he] was going to go into a convulsion at any moment.” We also recognize that he appeared “crazy” and enraged to his victims. However, there was no medical evidence of the effects defendant’s epilepsy had on him, either on that occasion or on any other, or of whether he entered a “clouded state” as a result of his epilepsy, and no evidence that he acted without intent or awareness. Furthermore, although defendant’s version of events differed from that of his victims, his own detailed testimony indicates that he did not lack awareness of events as they occurred. (See Halvorsen, supra, 42 Cal.4th at p. 418.) In the circumstances, the trial court had no sua sponte duty to instruct the jury on the defense of unconsciousness.
2. Cautionary Instruction
Defendant also contends the trial court erred in failing to instruct the jury with CALCRIM No. 358, which provides: “You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statement[s]. [¶] [Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]” Where the evidence warrants, this cautionary instruction must be given sua sponte. (People v. Carpenter (1997) 15 Cal.4th 312, 392 (Carpenter), superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107; see also People v. Beagle (1972) 6 Cal.3d 441, 455 (Beagle), superseded on other grounds as stated in People v. Reza (1984) 152 Cal.App.3d 647, 653, fn. 1.) Defendant requested this instruction at trial, indicating that it was warranted based on the evidence that defendant had said words to the effect of, “ ‘Shut up or I’ll kill you.’ ” The trial court declined to give the instruction, apparently on the ground that it was inappropriate when a defendant’s statement is an element of the crime.
The court in People v. Zichko (2004) 118 Cal.App.4th 1055 (Zichko) considered this issue and concluded a cautionary instruction was not required where the statement at issue constituted the crime. The defendant there had been found not guilty by reason of insanity of making a criminal threat, and appealed his order of commitment to the Department of Mental Health on the ground that the trial court had erred by failing to instruct the jury that the statement constituting the threat should be viewed with caution. (Id. at p. 1057.) The court in Zichko noted the rule that this instruction must be given “where an admission by the defendant is used to prove a part of the prosecution’s case” (id. at p. 1058, citing People v. Bunyard (1988) 45 Cal.3d 1189, 1224 (Bunyard)), but concluded this rule was not applicable where the statement was not an admission of the crime, but constituted the crime (Zichko, 118 Cal.App.4th at p. 1059).
The instruction at issue in Zichko was CALJIC No. 2.71, which defined the term “admission,” and instructed the jurors that they were “the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part,” and (in a bracketed portion of the instruction), that “[e]vidence of an oral admission of [a][the] defendant not made in court should be viewed with caution.” (Zichko, supra, 118 Cal.App.4th at p. 1058.) CALCRIM No. 358 refers to statements made outside of court rather than to admissions, and does not direct the jury to determine whether such statements are true.
The court in Zichko reasoned in part that the cautionary instruction would have been inconsistent with the reasonable doubt standard of proof. A guilty verdict would require the jury to conclude beyond a reasonable doubt that the defendant had made the threatening statements: “To also instruct the jury that the statements ‘should be viewed with caution’... would have been at least superfluous and may have been confusing to the jury. It could have misled the jury into believing that it could find [the defendant] guilty even if it did not conclude beyond a reasonable doubt that the statements were made, as long as the jury exercised ‘caution’ in making its determination.” (Zichko, supra, 118 Cal.App.4th at p. 1060.)
The cases defendant cites do not persuade us that the rule of Zichko is inapplicable here. Defendant points to language of our Supreme Court in Carpenter. The defendant there, the “ ‘Trailside Killer,’ ” was convicted of various crimes, including attempted rape and murder. (Carpenter, supra, 15 Cal.4th at p. 344.) During the course of one of the incidents, he accosted two hikers. One of the hikers heard defendant say to the other hiker, “ ‘I want to rape you.’ ” (Id. at p. 345.) Our Supreme Court concluded the cautionary instruction should have been given. In doing so, the court said, “Defendant’s statement of intent to rape Hansen was part of the crime itself.” (Id. at p. 392.) It went on to note that “ ‘[t]he purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made[,]’ ” and that “[t]his purpose would apply to any oral statement of the defendant, whether made before, during, or after the crime.” (Id. at p. 393.) The court in Carpenter, however, did not consider a statement that itself constituted the crime. The crucial difference is that in order to convict defendant here of making a criminal threat, the jury must necessarily find beyond a reasonable doubt that he had made the statements at issue.
Bunyard does not persuade us otherwise. The defendant there was convicted of the first-degree murder of his wife, Elaine, and her full-term fetus. (Bunyard, supra, 45 Cal.3d at p. 1200.) The evidence at trial showed that Elaine had been killed by a man named Earlin Popham, who testified that defendant had hired him to kill Elaine. Another man, Randy Johnson, also testified that defendant had repeatedly asked him to kill Elaine, and had also asked him to kill Elaine’s young daughter. (Id. at pp. 1200, 1202.) The defendant argued on appeal that the trial court should have given the cautionary instruction with respect to statements the defendant made to Popham and Johnson soliciting them to kill Elaine in return for money. (Id. at p. 1224.) The Supreme Court concluded the jury should have been instructed that evidence of oral admissions must be viewed with caution, but that the court’s failure to do so was harmless error under the circumstances of the case. (Id. at pp. 1224-1225.)
The court applied the state law standard for assessing prejudice. (Bunyard, supra, 45 Cal.3d at p. 1224, citing Beagle, supra, 6 Cal.3d at p. 455; accord Carpenter, supra, 15 Cal.4th at p. 393; see People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Defendant argues that the rule of Zichko, supra, 118 Cal.App.4th 1055, conflicts with Bunyard, supra, 45 Cal.3d 1189, because in Bunyard, as in Zichko, the statements at issue were an element of the crime. Not so. The defendant in Bunyard was convicted of murder; the essence of the crime was not any words defendant spoke, but the murder of Elaine. In any case, many of the statements at issue in Bunyard, both to Popham and to Johnson, were unsuccessful in their object—that is, they did not lead to the murder. Here, on the other hand, the words defendant spoke were the crime of making a terrorist threat under the circumstances of this case.
We likewise reject defendant’s analogy to People v. Ramirez (1974) 40 Cal.App.3d 347. The defendant there was convicted of selling heroin. (Id. at p. 349.) A narcotics agent testified to a conversation indicating the defendant’s willingness to sell heroin and to offer a quantity discount for future sales. Another officer testified that defendant told him the heroin he sold should not be cut up, but should be sold as is. (Id. at pp. 351-352.) The Court of Appeal rejected the argument that the cautionary instruction need not have been given as to these statements because they were “ ‘verbal acts’ ” and therefore not hearsay, stating that this distinction did not determine whether the statements should be viewed with caution. (Id. at p. 352.) The “ ‘verbal acts’ ” in question there did not constitute the crime of selling heroin.
The reasoning of Zichko appears correct to us in these circumstances. In our view, the cautionary instruction was not required. Even if failure to give the cautionary instruction was error, we would conclude it was harmless under the Watson standard, that is, that it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. (See Beagle, supra, 6 Cal.3d at p. 455.) In order to find defendant guilty of making a terrorist threat, the jury of necessity found true beyond a reasonable doubt that he had made the statements at issue. We see no basis to conclude that the jury would have reached any other conclusion had it been given the cautionary instruction.
B. Doyle Error
Defendant contends the prosecutor improperly commented in closing argument on his prearrest silence in violation of the rule of Doyle v. Ohio (1976) 426 U.S. 610, 611, 619. In the challenged argument, the prosecutor told the jury: “But what about the defendant? The defendant now claims that he’s the victim. That he didn’t do all the things that they said. [¶] And I ask you to consider, what evidence did the defendant point to that would make two people, two different people—yeah, they lived together and they’re friends, but they’re going to come and they’re going to say the same story that isn’t a hundred percent matching because people see and perceive and hear it differently. [¶] But they’re going to invite the police into their home. [¶] They’re going to make statements about somebody who they really don’t have a huge problem with. And they’re going to say something—you know, if you’re going to make it up, make it a real whopper. [¶] They didn’t want him just standing like this with a knife.... He was coming at them like this.... But it wasn’t an exaggerated or crazy rendition. It’s what two people said occurred on that day. And they came again and again and under often confusing cross-examination maintained what happened that day. Why? Because they were telling you the truth. [¶] And the defendant had the benefit of saying those statements over and over again so he could concoct the story that he gave you.” Defense counsel raised an objection, without stating her grounds, and the trial court overruled the objection. The prosecutor continued. “That he did none of what the victim said that he did. All he did was act in self defense yet he didn’t call the police for help that day. Didn’t try to seek help. [¶] I ask you in the end to consider what is reasonable, what is credible.” Defendant contends this argument improperly commented on his exercise of his constitutional right to silence.
During trial, the trial court refused to allow the prosecutor to cross-examine defendant on his failure to tell the police his version of events when they came to the house, immediately before his arrest.
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); Miranda v. Arizona (1966) 384 U.S. 436; see also Doyle, supra, 426 U.S. at pp. 611, 619 [use of defendant’s silence at time of arrest after receiving Miranda warnings 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; id. at p. 158 [cross-examination on defendant’s fleeing and failing to contact authorities used to discredit claim of self-defense]; 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 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.)
We first note that defendant did not specify the grounds for his objection during argument or request an admonition, and thereby forfeited the point. (See People v. Gray (2005) 37 Cal.4th 168, 215; People v. Carter (2003) 30 Cal.4th 1166, 1207.)
In any case, we reject defendant’s contention on the merits. The prosecutor’s comment on the fact that defendant did not call the police, used to undermine his claim of self-defense, did not refer to events that occurred after his arrest. There was no implication that defendant was relying on his right to silence in failing to call the police. (See Free, supra, 131 Cal.App.3d at pp. 158, 165.) Nor can we conclude that the prosecutor’s statement that defendant “had the benefit of saying those statements over and over again so he could concoct the story that he gave you” improperly commented on his postarrest silence. It is not entirely clear whether the prosecutor meant that defendant had the chance to rehearse his story before he testified, or whether she misspoke and actually meant to say he had the benefit of hearing the victims’ stories before concocting his own. In either case, we see no reason to conclude the jury would have understood the argument to refer to defendant’s silence after having been arrested or advised of his right to silence. There was no constitutional error.
C. Testimony of Defense Counsel
During trial, Meza-Flores testified that after the attack, his eye turned black and blue, and changed colors, “attain[ing] a sort of greenish color” and “[a] purplish color,” and that the bruising took “like a month” to heal. On cross-examination, defense counsel asked Meza-Flores, “Do you recall showing the judge and the district attorney and myself [at the preliminary hearing 15 days after the attack] the injuries and pointing out that the mark on your chin under a small bandage was the extent of your injuries at that time?” Meza-Flores replied, “Yes.” Upon being pressed on whether he was still bruised when he testified at the preliminary hearing, Meza-Flores said he had bruising on his face at the time.
Outside the presence of the jury, defense counsel proposed to testify as a witness that Meza-Flores had no bruising or swelling at the time of the January 24, 2008, preliminary hearing, that he had no black eye, and that his only sign of injury was a small bandage. The trial court refused to allow her to testify.
On redirect examination, the prosecutor asked Meza-Flores about the state of his injuries at the time of the preliminary hearing. He testified that his eye was healing at that time.
Defendant contends the trial court denied him due process by refusing to allow his counsel to testify in order to impeach Meza-Flores. Our Supreme Court has declared that “ ‘a trial court may not deny the defendant the right to present impeaching evidence through the testimony of his counsel, notwithstanding the provisions relating to testimony by counsel in the Rules of Professional Conduct.’ ” (People v. Earp (1999) 20 Cal.4th 826, 879, quoting People v. Marquez (1992) 1 Cal.4th 553, 574.)
Assuming it was error for the trial court to refuse to allow defense counsel to testify, the error was harmless beyond a reasonable doubt. Although Meza-Flores testified that the bruising took about a month to heal, he also testified that the bruises changed color over time and that at the time of the preliminary hearing, they were healing. There was no dispute that Meza-Flores’s face was cut and bleeding after the incident, or that he suffered bruising on both his face and his body. The testimony would have revealed at most a minor discrepancy between Meza-Flores’s recollection of the time his bruises healed and that of defense counsel. We see no possibility the proffered testimony would have affected the jury’s view either of Meza-Flores’s credibility or of whether he suffered great bodily injury.
D. Exclusion of Hearsay
Defendant contends the trial court improperly excluded evidence that Candiani had told defendant’s sister, Floricel, that Meza-Flores said that defendant would pay for using his vacuum cleaner. Outside the presence of the jury, defense counsel told the court that Floricel had told the defense investigator that Candiani had told her that Meza-Flores had “used very crude language and he pledged that [defendant] was going to pay for taking his vacuum cleaner.” Defense counsel argued that Floricel’s evidence would be offered not for the truth of the matter asserted, but as a prior inconsistent statement, to impeach Candiani. She also argued that she had questioned Candiani about his conversations with Floricel, and about whether he had told her that Meza-Flores was the one who had started the brawl, and that he had denied it. The court ruled the evidence was inadmissible both because it contained hearsay and because it was not relevant to the issues in the case.
Defendant contends that this ruling was erroneous, that the proffered evidence was admissible as prior inconsistent statements of both Candiani and of Meza-Flores, and that he suffered prejudice because the case involved a credibility contest between himself and Meza-Flores. As defendant notes, Candiani was asked whether he had told Floricel that Meza-Flores had used crude language toward defendant about the use of the vacuum, and he replied that he had spoken only with defendant’s mother, “and not exactly that way.” Meza-Flores had testified that he was not upset about defendant using his vacuum cleaner.
He also denied having told Floricel that it was Meza-Flores who had grabbed defendant, that he had had to break up the altercation, and that he had scolded Meza-Flores for “making such a big deal of these things.”
Evidence Code section 1235 provides: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with section 770.” Evidence Code section 770 provides: “Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action.” On appeal, we apply “ ‘the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the hearsay nature of the evidence in question....’ ” (People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008; see also People v. Hamilton (2009) 45 Cal.4th 863, 930 [evidentiary rulings turning on relative probativeness and prejudice of evidence reviewed for abuse of discretion].)
We see no abuse of discretion in the trial court’s ruling. Candiani’s alleged statement to Floricel was indubitably hearsay—that is, an out-of-court statement offered to prove the truth of the matter stated. (Evid. Code, § 1200, subd. (a).) At the time of the ruling, Candiani had already testified, and he had been excused from further testimony. (See id., § 770, subd. (b).) During his testimony, he was asked whether he had told Floricel that Meza-Flores had used crude language, but not whether Meza-Flores had said defendant would pay for using the vacuum cleaner. (See id., § 770, subd. (a).) Thus, the portion of Candiani’s alleged statement to Floricel related to whether Meza-Flores had said defendant would “pay” did not meet the admissibility standards of Evidence Code section 770. The trial court could reasonably conclude that the remaining portion of the statement—that Meza-Flores had used crude language—had minimal relevance or probative value.
E. Deadly Weapon Enhancement
In count 4, defendant was convicted of assault with a deadly weapon. (§ 245, subd. (a)(1).) The jury also found true an enhancement for use of a knife pursuant to section 12022, subdivision (b). Defendant contends that this enhancement is improper because use of a deadly weapon is an element of a violation of section 245, and section 12022 does not apply where “use of a deadly or dangerous weapon is an element of [the] offense” (§ 12022, subd. (b)(1)). The Attorney General concedes the point, and we agree. (See People v. Summersville (1995) 34 Cal.App.4th 1062, 1069-1070; People v. McGee (1993) 15 Cal.App.4th 107, 110, 112-113.) We therefore strike the enhancement.
F. Restitution Fine
Defendant contends the trial court misunderstood the scope of its discretion when it imposed a restitution fine of $440.
Section 1202.4, subdivision (b) requires the trial court to impose a restitution fine, unless it finds compelling and extraordinary reasons for not doing so. The fine “shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony....” (Id., subd. (b)(1).) In setting a felony restitution, the court may calculate the fine as “the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.” (Id., subd. (b)(2).) In setting a felony fine in an amount greater than two hundred dollars, the court may consider any relevant factors; among the permissible factors is “the number of victims involved in the crime.” The court need not make express finding on the factors bearing on the amount of the fine. (Id., subd. (d).)
An additional 10 percent is authorized to cover the administrative cost of collecting the fine. (§ 1202.4, subd. (l).)
During sentencing, the trial court ordered defendant to pay a restitution fine. Defense counsel said, “I ask the court to impose the mandatory minimum,” and the trial court stated, “It would be $440 because of the counts, I believe. [¶] The defendant is ordered to pay a restitution fine of $440 which includes a 10 percent administrative fee....”
Defendant contends that the exchange between the trial court and defense counsel shows the trial court misunderstood the scope of its discretion in imposing the restitution fine—that is, that it believed the mandatory minimum fine was $440 rather than $220. He points out that a ruling otherwise within the trial court’s power will be set aside where it appears from the record that the trial court failed to exercise its discretion based on an erroneous understanding of the law (People v. Downey (2000) 82 Cal.App.4th 899, 912), and asks us to remand the matter for recalculation of the restitution fine.
We reject this contention. Defendant does not dispute that a fine of $440 was within the trial court’s discretion. As we have noted, the trial court is not required to make express findings on the factors bearing on the amount of the fine. (§ 1202.4, subd. (d).) Although the court’s words are not entirely clear, they can reasonably be understood to mean that the court was exercising its discretion to impose a fine of $440 based on the number of counts, or on the fact that defendant’s crimes had more than one victim. On this record, we cannot say the trial court misunderstood the scope of its discretion.
III. DISPOSITION
The judgment is modified to strike the personal weapon use enhancement to count 4. As so modified, the judgment is affirmed.
We concur: RUVOLO, P.J., REARDON, J.