Filed 5/29/14 P. v. Williams CA3
                                       NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.



             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                   THIRD APPELLATE DISTRICT
                                                (Sacramento)
                                                      ----




THE PEOPLE,

                 Plaintiff and Respondent,                                           C068754

        v.                                                                (Super. Ct. No. 08F01226)

JOSEPH RAHEEM WILLIAMS,

                 Defendant and Appellant.




        Defendant Joseph Raheem Williams shot and killed a man in front of a hotel. Law
enforcement apprehended him several days later, read him his Miranda1 rights and
interviewed him.




1 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).


                                                       1
       The People charged defendant with murder and being a felon in possession of a
firearm. At trial, defendant asserted self-defense. A recording of the police interview
was played to the jury. The jury found defendant guilty of voluntary manslaughter and of
possessing a firearm.
       The trial court imposed the maximum sentence of 11 years for manslaughter, 10
years for a firearm enhancement and one year for a prior prison term, suspending an
eight-month term for firearm possession.
       Defendant now contends (1) the prosecutor committed misconduct during closing
argument; (2) the trial court erred in admitting defendant’s interrogation statements to the
police in violation of Miranda, supra, 384 U.S. 436 [16 L.Ed.2d 694]; (3) his failure to
respond to certain police questions was used against him in violation of Doyle v. Ohio
(1976) 426 U.S. 610 [49 L.Ed.2d 91] (Doyle); and (4) in sentencing defendant, the trial
court ignored the jury’s findings, failed to consider mitigating factors and demonstrated
animus toward defendant.
       We conclude (1) the prosecutor’s comments were a legitimate response to the
evidence, and we presume the jury followed the trial court’s instructions rather than the
prosecutor’s arguments; (2) based on the totality of the circumstances and giving
deference to the trial court’s findings of fact, defendant’s statements in the interrogation
could be interpreted by a reasonable police officer as expressions of frustration rather
than an invocation of the right to remain silent, and defendant did not effectively invoke
his Miranda right to halt the questioning; (3) any error in allowing the prosecutor to
comment on the recorded interrogation statement was harmless beyond a reasonable
doubt; and (4) in sentencing defendant, the trial court did not err and did not abuse its
discretion.
       We will affirm the judgment.




                                              2
                                     BACKGROUND
       Lashaun Blake was celebrating her 17th birthday with friends at the Double Tree
Hotel. In another room, Alex Hunter was celebrating his 21st birthday with his siblings
and friends. Defendant and “Goldie” Benoit had joined the party of teenage girls because
they knew Blake’s boyfriend. Benoit, defendant and two of the girls made a trip to a
nearby convenience store in Benoit’s car. At about the same time, Hunter, his brother
and their two sisters were walking toward their cars. Benoit was “driving crazy” as he
prepared to park his Ford Taurus.
       After yelling at the Hunter group to move, Benoit narrowly missed hitting them
with the car. As defendant and Benoit got out of the car, there was an exchange of heated
words. Hunter followed defendant’s group as they walked away, challenging them to
fight. Defendant responded to Hunter’s unexpected tap on the shoulder by turning and
shooting him at a range of less than three to four feet, killing him with a single gunshot
wound to the chest. Defendant and Benoit ran away.
       Police arrested defendant several days later and questioned him. During the
interrogation, defendant said only that he “didn’t do the shooting.” At trial, he asserted
self-defense, saying he believed the victim had a gun and was threatening him when he
pulled the trigger. The trial court denied defendant’s motion in limine to exclude
evidence from defendant’s interrogation and the jury saw a video recording of it.
       The jury found defendant not guilty of murder but convicted him of voluntary
manslaughter. The jury also found true the allegation that defendant personally used a
firearm. The trial court sentenced him to an aggregate of 22 years in prison. Additional
facts are included in the discussion as relevant to the contentions on appeal.
                                      DISCUSSION
                                              I
       Defendant contends the prosecutor engaged in misconduct by suggesting in
closing argument that defendant’s claim of self-defense had to be rejected because the

                                             3
victim did not have a gun. Defense counsel promptly objected to the argument, but the
trial court overruled the objection and refused to admonish the jury. Defendant argues
this was sufficient grounds for the mistrial he sought in the trial court and for reversal on
appeal.
       Prosecutorial misconduct violates the Fourteenth Amendment when it “ ‘infects
the trial with such unfairness’ ” as to make the conviction a denial of due process.
(People v. Cole (2004) 33 Cal.4th 1158, 1202.) Even if the conduct does not reach that
level, it may violate California law if it involves “ ‘the use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury.’ ” (Ibid.) Regarding closing
arguments, “It is within the domain of legitimate argument for a prosecutor to state his
deductions or conclusions drawn from the evidence and to relate to the jury that, in his
opinion, the evidence shows that the defendant is guilty of the crimes charged, unless his
statements are not based upon legitimate evidence or are to the effect that he has personal
knowledge of the defendant's guilt.” (People v. Calpito (1970) 9 Cal.App.3d 212, 223,
citing People v. Dillinger (1968) 268 Cal.App.2d 140, 144.) It is not proper, however,
for a prosecutor to misstate the law or resort to personal attacks on the integrity of
opposing counsel. (People v. Bell (1989) 49 Cal.3d 502, 538.)
       Here, defendant claims the prosecutor “implied a lower burden of proof” and
shifted the burden of proof to defendant. Noting that not a single witness said the victim
had a gun, the prosecutor argued: “Why is it so important to the defense that [the victim]
have a gun? Because that’s the one way they are trying to create this situation where it
could be justified to use a gun on an unarmed person. It is not justified to shoot down an
unarmed person. That is not what self-defense is all about.” Defendant immediately
objected, saying the argument misstated the law. The trial court overruled the objection.
       One element of self-defense is a reasonable belief that a person is in “imminent
danger of being killed or suffering great bodily injury.” (CALCRIM No. 505.) The jury
was so instructed. The law recognizes, of course, that great bodily injury can be inflicted

                                              4
without a firearm. (People v. Aguilar (1997) 16 Cal.4th 1023, 1035 [finding the key
inquiry in an aggravated assault conviction is the nature of the force applied by a
defendant, not whether he used a weapon].) Defendant testified that the victim claimed
to be a “UFC fighter,” which defendant understood to mean someone who fights in a
cage for money or sport.2 Defendant contends the prosecutor’s statement impermissibly
led the jury to conclude that defendant had to prove the victim had a gun, instead of the
prosecutor having to prove that defendant did not act in self-defense.
       On review of alleged misconduct in a closing argument, we must examine the
context of the argument as a whole. (People v. Cole, supra, 33 Cal.4th at p. 1203.) In
this case, defendant contended that, at the very beginning of the conflict, the victim threw
up his hand and raised his shirt to “flash[]” a gun. He went on to testify that he did not
know why, but the victim followed him as defendant and his friends tried to make their
way back to their hotel room. He said the victim persisted in demanding a fight and
saying something about a gun. Defendant said he was trying to avoid a fight by walking
away in the moments before he shot the victim. But as defendant reached the stairs, he
said he felt a pull on his left shoulder as the victim turned him around and suddenly they
faced one another at very close range. He said he did not intend to shoot anybody, but
“[i]t just happened.” He said he did not want the victim to shoot him or pistol-whip him.
       Following the defense objection, the prosecutor continued his closing argument,
pointing out that although the victim’s actions were not consistent with having a gun, he
did talk about fighting, calling defendant and his friend cowards. The prosecutor said,
“Again, no one is excusing his behavior. He is being a jerk that night. If he would have
let it go, he’d still be alive, but he didn’t. But he didn’t ever talk about having a gun. No



2 The parties stipulated that the ultimate fighting championship or UFC is sponsored by
MMA, the world’s premier mixed martial arts organization, and that it features men who
engage in boxing, wrestling, judo and other martial arts.

                                              5
one heard him say I’m going to shoot you. He talked about fighting.” The prosecutor
rhetorically asked whether the victim would not have just pulled the gun out if he had
one, instead of tapping defendant on the shoulder to say, “I’m talking to you,” as one
witness had testified.
       Moments later, the prosecutor continued, “As far as the stand your ground, I mean,
that’s the law. . . . But if you stand your ground, you still are limited to using the force
that is necessary under the circumstances, you know, to meet the threat. You can’t use
any more force than is necessary to meet the threat, even when you are standing your
ground.” He went on, “the point I was making earlier in my first argument is that you
still cannot use any more force than is necessary. [¶] So the decision you have to make
then . . . is whether or not the defendant actually, actually felt that he was in imminent
danger of death or great bodily injury requiring the immediate use of force.”
       The prosecutor accurately defined the jury’s decision as “whether or not the
defendant actually, actually felt that he was in imminent danger . . . of great bodily injury
requiring the immediate use of force.” Addressing the statement to which defendant
objected once more, he continued, “And, you know, you can feel that way if another
person isn’t armed. I mean, that’s -- that’s -- if I misspoke before, that is true, you can be
in that position where you feel like you have to use deadly force because you feel like
you are actually in imminent danger of death or great bodily injury requiring the use of
immediate force. The other person doesn’t have to be armed for you to meet that point,
obviously.”
       Defendant claims the prosecutor “did not clarify his previous misstatement”
because he did not make it “explicitly clear” that defendant’s shooting could be justified
even if the victim did not have a gun. He further contends that the trial court abused its
discretion when it “implicitly endorsed” the misstatement by overruling defendant’s
objection.



                                              6
       We disagree. As we just recounted, defendant testified that, at the time he pulled
the trigger, he feared being shot or pistol-whipped by the victim. The prosecutor’s
comments about the reasonableness of defendant’s fear were legitimately part of closing
argument. In context, the prosecutor’s single statement about shooting an unarmed man
was not likely to be perceived as an explanation of the law of self-defense but as an
attack on the reasonableness of the defense theory and the evidence supporting it.
Moreover, we presume that the jury relied on the instructions of the trial court, not the
arguments of counsel. (People v. Morales (2001) 25 Cal.4th 34, 47.) The jury was
instructed to follow the law as explained by the trial court and was told, “If you believe
that the parties’ comments on the law conflict with my instructions, you must follow my
instructions.” Defendant has asserted no objection to the self-defense instruction,
CALCRIM No. 505. The prosecutor’s statement did not infect the trial with unfairness
so as to deprive defendant of due process, nor did it employ deceptive or reprehensible
methods to persuade the jury.
       We find no merit in defendant’s contention that the trial court “implicitly
endorsed” a misstatement of law simply by overruling a defense objection. The
instruction was correct and any misstatement by the prosecutor was corrected by the
prosecutor and addressed again by defendant’s closing argument. Among other things,
defense counsel argued in closing that the law clearly and undoubtedly gave defendant
“an entitlement to use self-defense” to avoid “great bodily injury, if not being shot.”
Defense counsel said “any reasonable person” under the circumstances would believe
they were in imminent danger of death or great bodily injury, and he emphasized that
even if the victim was not a fighter and did not have a gun, defendant was entitled to
defend himself if his belief about the threat was reasonable at the time. The jury found
defendant not guilty of murder, which is inconsistent with defendant’s claim that they
may have adopted the prosecutor’s statement that shooting an unarmed man was never
justified. There was no prosecutorial misconduct and no prejudice.

                                             7
                                              II
       Defendant next contends his conviction must be reversed because the trial court
erroneously admitted evidence that violated his Miranda rights.
       The police arrested defendant a few days after the shooting and questioned him
later that day. Before trial, defendant moved to exclude the interrogation on the ground
that he had asserted his constitutional right to remain silent by not answering pertinent
questions. The trial court denied the motion and allowed the jury to see a video recording
of the police interview. After reviewing a transcript and listening to the recording, the
trial court found that the interviewing detective gave defendant appropriate warnings at
the start of the interview and defendant affirmatively responded that he understood them.
The record supports the trial court’s conclusion that defendant’s waiver was knowing,
intelligent and voluntary.
       Defendant argued that even if his initial waiver was effective, he invoked his right
to cut off questioning by not answering questions about the crime or by giving only
evasive answers to questions about the crime. But the trial court found that defendant
interspersed silence with numerous responses and did not clearly communicate to the
detective that the interview was over. The trial court found defendant “never invoked his
right to remain silent” and, because the statements were voluntary, they could be
admitted into evidence. After the ruling, defense counsel urged the trial court to
reconsider a segment of the interview in which defendant said to the detective, “I don’t
wanna talk about that, bro.” The trial court determined that the phrase referred to the
subject of the police chase preceding defendant’s arrest, although defendant urged that it
related to the crime. Defendant raised the issue again after opening statements and the
trial court agreed to accept his objection as continuing throughout the trial.
       The Fifth Amendment of the United States Constitution provides that no person
“shall be compelled in any criminal case to be a witness against himself” and the
Fourteenth Amendment extends this right to state criminal prosecutions. (Malloy v.

                                              8
Hogan (1964) 378 U.S. 1, 12 [12 L.Ed.2d 653, 662].) Miranda warnings implicitly
promise there will be no penalty for exercising the right to remain silent. (Doyle, supra,
426 U.S. at pp. 618-619 [49 L.Ed.2d at p. 98].) “A person who initially waives his or her
Miranda rights retains the right to cut off further police interrogation.” (People v. Lopez
(2005) 129 Cal.App.4th 1508, 1526.)
       The question presented is whether defendant asserted his right to remain silent
after the interview began or whether he was just selectively evasive. “[T]he admissibility
of statements obtained after the person in custody has decided to remain silent depends
under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously
honored.’ ” (Michigan v. Mosley (1975) 423 U.S. 96, 104 [46 L.Ed.2d 313, 321],
fn. omitted [quoting Miranda, supra, 384 U.S. at pp. 474, 479 [16 L.Ed.2d at pp. 723-
724, 726]].) A California court has held that there is “ ‘no right to remain silent
selectively’ ” after a Miranda waiver (People v. Hurd (1998) 62 Cal.App.4th 1084,
1093), but a federal court deemed that decision “incorrectly and unreasonably applied
[to] clearly established law.” (Hurd v. Terhune (9th Cir. 2010) 619 F.3d 1080, 1089.)
The Ninth Circuit determined that the right to silence pertains independently to each
question posed. (Id. at p. 1087) There is no definitive Supreme Court guidance on the
extent to which interrogation evidence is admissible when a defendant answers some
questions but not others. (People v. Bowman (2011) 202 Cal.App.4th 353 364 [listing
cases illustrating split of authority].)
       On review, we accept the trial court’s resolution of disputed facts and inferences if
they are substantially supported by the evidence, before applying federal standards to
independently determine whether a challenged statement was elicited in violation of
Miranda. (People v. Bradford (1997) 14 Cal.4th 1005, 1032-1033.) “In order to invoke
the Fifth Amendment privilege after it has been waived, and in order to halt police
questioning after it has begun, the suspect ‘must unambiguously’ assert his right to
silence or counsel.” (People v. Stitely (2005) 35 Cal.4th 514, 535, citing Davis v. United

                                              9
States (1994) 512 U.S. 452, 459 [129 L.Ed.2d 362, 371].) To determine whether there
was an unambiguous assertion of the privilege after an initial waiver, we review the
totality of the circumstances and the context of the words a defendant has used.
(People v. Musselwhite (1998) 17 Cal.4th 1216, 1238.) Doing this, we employ an
objective standard, that is, whether a reasonable police officer would have understood the
defendant’s statements to require immediate cessation of questioning. (People v. Nelson
(2012) 53 Cal.4th 367, 376-378, citing Davis v. United States, supra, 512 U.S. 452, 459
[129 L.Ed.2d 362, 371] and Berghuis v. Thompkins (2010) 560 U.S. 370 [176 L.Ed.2d
1098].) Expressions of frustration or animosity do not invoke the right to silence.
(People v. Williams (2010) 49 Cal.4th 405, 434 [“ ‘I don’t want to talk about it’ ” was not
an invocation].)
       In this case, a few minutes after issuing Miranda warnings, the detective said, “Do
you know why you’re here?” and offered an explanation to which defendant did not
respond. After the detective continued, saying several people identified defendant as the
“shoot[er]” at the hotel, defendant responded with a minute-long silence, then said, “Got
a little bed in this joint?” After a colloquy about defendant being tired from the police
chase at the time of his arrest, the detective asked, “What did you do on Saturday,
Joseph?” Defendant responded, “I’m gonna go right back on the ground to sleep.” When
defendant repeated the statement, the detective reflected that, if defendant went to sleep,
they would not “get very far on what we’ve got to talk about,” to which defendant
replied, “I don’t wanna talk about that, bro.”
       After a brief and largely unintelligible exchange about the chase, the detective
said, “I’ll let you sleep a little bit,” and left for about 20 seconds; when he returned, there
was a brief conversation in which defendant said he wanted to go to jail and the detective
said he would be taken to jail after unnamed others had been interviewed. The detective
left again for two minutes, returning with photographs. Defendant acknowledged a
photograph of the victim, saying he had “seen him around,” then asked again to be taken

                                              10
to jail. The detective said, “Oh you will [but] what you go to jail for [depends] on how
this plays out,” and showed defendant more photographs. Defendant looked at the
photographs but deflected questions. A few minutes later, the detective pointedly asked,
“Did you not shoot the guy or did you shoot the guy?” to which defendant responded, “I
didn’t do the shooting.”
       For 13 minutes, defendant evaded and deflected the detective’s follow-up
questions, alternating silence, mumbling, saying he was sleepy and asking to be taken to
jail, but never actually responding or asserting his rights; the detective finally confirmed
defendant had nothing to say and just wanted to go to sleep. In the midst of the
detective’s follow-up questions, defendant twice asked, “This even legal?” to which the
detective responded, “We wouldn’t do it if it wasn’t legal. We’re the police.” The entire
interview lasted about 30 minutes.
       The trial court reviewed the recorded interview and concluded from defendant’s
bantering that “this defendant has apparently extensive contact with law enforcement”
and had the “clear ability to communicate to the detective that the interview was over”
but “did no such thing.” The trial court concluded that the statement “I don’t wanna talk
about that, bro” referred to the chase preceding defendant’s arrest, not the shooting.
Evaluating the totality of the circumstances and giving deference to the trial court’s
findings of fact, we conclude that defendant’s statements could be interpreted by a
reasonable police officer as expressions of frustration rather than an invocation of the
right to remain silent. (See People v. Rundle (2008) 43 Cal.4th 76, 115, disapproved on
other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 [right to silence not
invoked by expressions of frustration or animosity or refusal to discuss a particular
subject]; People v. Silva (1988) 45 Cal.3d 604, 630 [same].) We conclude defendant did
not effectively invoke his Miranda right to halt the questioning.




                                             11
                                             III
       Defendant contends that, even if his Miranda rights were not violated, the trial
court violated his constitutional rights by allowing the prosecutor to show the jury his
postarrest interview and describe his nonanswers as proof of guilt.
       In Doyle, supra, 426 U.S. 610 [49 L.Ed.2d 91], the United States Supreme Court
said “every post-arrest silence is insolubly ambiguous” due to the assurances implicit in
the Miranda warnings that silence will carry no penalty. (Doyle, supra, 426 U.S. at
pp. 617-618 [49 L.Ed.2d at pp. 97-98].) Impeaching a defendant with his post-Miranda
silence is a violation of the due process clause of the Fourteenth Amendment. (Id. at
p. 619 [49 L.Ed.2d at p. 98].) Post-Miranda silence may not be used as evidence of guilt
during the prosecution’s case-in-chief. (People v. Coffman and Marlow (2004)
34 Cal.4th 1, 118; People v. Cockrell (1965) 63 Cal.2d 659, 669.) Similarly, nonanswers
by a suspect in custody may not be used as adoptive admissions. (People v. Lopez, supra,
129 Cal.App.4th at p. 1526 [curse preceding request for counsel]; (Hurd v. Terhune,
supra, 619 F.3d at pp. 1088-1089 [refusal to demonstrate shooting].) Silence at the time
of arrest is not especially probative and has a high risk of causing prejudice that is not
likely to be overcome by explanation. (United States v. Hale (1975) 422 U.S. 171, 180
[45 L.Ed.2d 99, 107].)
       “Under the rationale of Doyle, due process is violated whenever the prosecution
uses for impeachment purposes a defendant's post-Miranda silence.” (Brecht v.
Abrahamson (1993) 507 U.S. 619, 629 [123 L.Ed.2d 353, 367].) Trial error arising from
a defendant’s exercise of the right to remain silent is evaluated under federal standards,
so it is reversible unless it is harmless beyond a reasonable doubt. (Chapman v.
California (1967) 386 U.S. 18, 21, 24 [17 L.Ed.2d 705, 709, 710-711].) When a
defendant responds to some questions during a police interview and does not
unambiguously invoke his right of silence, the silence does not trigger Doyle unless the
circumstances lend themselves to an inference that silence or evasive replies were made

                                             12
in reliance on the Fifth Amendment. (People v. Bowman, supra, 202 Cal.App.4th at
pp. 364-365.) In this case, the context was a postarrest interrogation, so refusal to discuss
the shooting may very well have been based on the Fifth Amendment, particularly given
that defendant asked, “This even legal?” after repeated attempts by the detective to
provoke a response from him.
       The People argue that a criminal defendant should not be allowed “to engage law
enforcement [after waiving Miranda] and then claim that flippant and evasive answers
were in fact in ‘silence’ in reliance on Miranda.” They contend the prosecutor’s reliance
on the interrogation was justified because defendant was trying to use evidence of his
silence and evasion as a sword instead of a shield, as that concept was explained in
People v. Champion (2005) 134 Cal.App.4th 1440 (Champion). The People argue the
prosecutor focused on defendant’s actual responses and demeanor during the interview,
which was consistent with the detective’s warning that whatever he said could be used
against him and was a fair response at trial to his claim of self-defense.
       Champion involved a prosecutor’s reference to a defendant’s postarrest silence as
a fair response to defendant’s trial claim that “no one would listen to him.” (Id. at
pp. 1448, 1450.) Here, however, defendant testified that he acted in self-defense, not that
no one would listen to him. Highlighting defendant’s failure to tell the police
investigator defendant acted in self-defense was not a fair response under Champion.
       During opening statement, the prosecutor pointed out that, in response to hearing
about the evidence against him during the police interview, defendant’s recorded
response was, “How long I been here for?” and “Got a little bed in here?” “I’m gonna go
right back on the ground to sleep.” The prosecutor noted that defendant never responded,
“[T]he victim had a gun” or “I had to shoot to defend myself.” The interview was not
mentioned on cross-examination. During closing argument, the prosecutor said, “Think
about his attitude, his demeanor on that tape [¶] . . . [¶] [a]nd if you watch that tape, just
days after he shot this person, you can see through [his] attitude that he’s a cold-blooded

                                              13
killer. He has no remorse. He’s not feeling bad about it. He’s not showing any fear. . . .
[¶] . . . [¶] Don’t you have anything to say about what happened? . . . [¶] . . . I’m going
to lay down here on the floor . . . . He had killed a man five days earlier, shot him down
and that’s his attitude. No remorse, no fear, definitely didn’t have any self-defenses
going on.”
       As we explained in part I, ante, a prosecutor may state his own conclusions from
the evidence during closing argument and relate his belief that the defendant is guilty.
(People v. Calpito, supra, 9 Cal.App.3d at p. 223.) But a prosecutor may not convert a
defendant’s silence during a police interview into a tacit admission of guilt if the
defendant has invoked his right to remain silent or seek counsel. (People v. Andrews
(1970) 14 Cal.App.3d 40, 47.) The prosecutor’s comments suggested that defendant’s
failure to tell police he was defending himself proved he was not. If defendant had
unambiguously cut off questioning or otherwise clearly asserted his right to remain silent,
the evidence would have been inadmissible under Doyle. But as we explained in part II,
he did not. In fact, at trial, defendant said he was evasive because he did not trust the
detective and did not want to talk to him.
       In any event, it is not necessary to decide whether a series of evasive answers
punctuated by silence ought to be excluded from evidence under Doyle, because we
conclude that, in this case, any error in admitting or allowing comment on the recorded
interview was harmless beyond a reasonable doubt.
       The constitutional harmless error standard is “ ‘not whether, in a trial that occurred
without the error, a guilty verdict would surely have been rendered, but whether the
guilty verdict actually rendered in this trial was surely unattributable to the error.’ ”
(People v. Quartermain (1997) 16 Cal.4th 600, 621, quoting Sullivan v. Louisiana (1993)
508 U.S. 275, 279 [124 L.Ed.2d 182, 189].) Defendant admitted that he was carrying a
gun on the night of the shooting, even though he knew there was a warrant for his arrest
and he could not legally possess a gun. He said he had the gun with him because he

                                              14
expected to return it to its owner who was “usually . . . around” when there were girls and
drugs. He admitted that he spent the evening drinking, smoking marijuana, snorting
cocaine and “popping” Ecstasy pills while “shooting dice” and listening to music.
Defendant said the victim “flashed” a gun in his waistband from a distance of 30 or 40
feet but, as he approached, the victim appeared to want a fistfight, not a gun battle. The
victim did not actually have a gun and defendant admitted his vision was poor.
Defendant said he was “high” and was just trying to get away when the victim pulled his
shoulder and was suddenly facing him. He said he did not have it in his mind to shoot
anybody but he did acknowledge shooting the victim.
       The trial court instructed the jury that either heat of passion or imperfect self-
defense could reduce the murder charge to voluntary manslaughter. It also instructed the
jury that if defendant believed there was imminent danger, the belief “must have been
reasonable,” that a person is “only entitled to use that amount of force that a reasonable
person would believe is necessary” and if defendant used more force than was necessary,
“the killing was not justified.” The jury’s verdict of manslaughter, but not murder,
indicates that defendant persuaded the jury he was provoked or that his fear of imminent
danger was reasonable, despite his failure to assert self-defense in the police interview.
But the jury also must have concluded that he used more force than was necessary.
Given defendant’s own testimony that the victim was spoiling for a fistfight, suddenly
shooting him in the chest at close range was an excessive response that necessarily would
have rendered the killing “not justified,” regardless of how the defendant’s demeanor
during the police interview was construed. The guilty verdict was “surely unattributable
to” the admission of the interrogation evidence. Any error was harmless beyond a
reasonable doubt.




                                              15
                                              IV
       In addition, defendant contends the trial court erred in sentencing him because it
ignored the jury’s findings, failed to consider mitigating factors and demonstrated animus
toward him.
       A trial court has broad discretion in sentencing, but it must orally announce its
reasons to encourage the careful exercise of that discretion and to enable parties to seek
an immediate clarification or change in the event of errors or omissions in its reasoning.
(People v. Scott (1994) 9 Cal.4th 331, 351.) Claims that a trial court weighed sentencing
factors incorrectly or failed to give a sufficient number of valid reasons for the sentence
cannot be considered for the first time on appeal. (Id. at pp. 352-353.) Here, defendant
asserts for the first time on appeal that the trial court’s sentencing reasons were improper
or insufficient. Defendant did not object to the sentence when it was imposed and did not
assert judicial animus or judicial misconduct in the trial court. Accordingly, his
contention is forfeited. (People v. Sturm (2006) 37 Cal.4th 1218, 1237.)
       Acknowledging his failure to object, defendant contends that his presentencing
argument against the upper term preserved the claim and, in any event, an objection
would have been futile. Even if that were true, the record does not support defendant’s
assertion that the trial court ignored the jury’s findings, failed to consider mitigating
factors or demonstrated animus toward defendant.
       In claiming that the trial court considered facts not found by the jury, defendant
points to a reference in the probation report indicating that defendant said he “probably
would have shot the victim sooner if he had been sober.” The trial court commented that
the statement was “[u]ndoubtedly” true and that it “is a common tale in Sacramento.”
Defendant also argues the trial court “implied” that it was ignoring the verdict by noting
that the jury considered victim provocation when it found defendant guilty of
manslaughter but not murder. He contends the trial court’s statement that the jury gave
defendant “a tremendous break in view of all the surrounding circumstances” proves that

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the trial court believed defendant committed murder and improperly made the sentencing
decision on that basis.
       The trial court apparently found the facts of this case abhorrent and minced no
words in explaining the sentence, but even if defendant had preserved an objection to the
sentence, we would find no abuse of discretion. (See People v. Scott, supra, 9 Cal.4th at
p. 349 [standard of review].) Any “factor reasonably related to the sentencing” may be
considered in selecting an authorized sentence, including evidence in the probation
report. (Cal. Rules of Court, rule 4.420(b).) Some of the aggravating factors that may be
considered in imposing sentence include great violence, use of a weapon and conviction
of other crimes. (Cal. Rules of Court, rule 4.421(a).) In sentencing defendant, the trial
court articulated various aggravating and mitigating factors. Any one of the aggravating
factors would have sufficed to justify the maximum sentence. (People v. Yim (2007)
152 Cal.App.4th 366, 369.)
       In mitigation, the trial court considered that defendant was only 23 years old and
that the crime was unlikely to recur because of the victim’s provocation. Nonetheless, it
concluded the aggravating factors far outweighed the mitigating factors. The probation
report recommended the maximum term because defendant was on parole at the time of
the crime. Among other things, the trial court noted that the crime involved great
violence and great bodily harm, that defendant had engaged in a “continuous pattern of
crime from the age of 12,” that he had a prior prison term, that he was on parole, and that




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he had a poor parole record. The trial court did not abuse its discretion in sentencing
defendant.
                                      DISPOSITION
       The judgment is affirmed.


                                                              MAURO                       , J.


We concur:


               BUTZ                  , Acting P. J.


               MURRAY                , J.




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