Filed 10/2/13 P. v. Alvisar CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064413
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF225514)
                   v.

DANIEL NAVARRO ALVISAR,                                                                  OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tulare County. Darryl B.
Ferguson, Judge.
         Sylvia Whatley Beckham, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Alice
Su, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         Defendant Daniel Navarro Alvisar was charged by information with murder
involving the personal use and intentional discharge of a firearm, proximately causing
death (Pen. Code,1 §§ 187, subd. (a), 12022.5, subd. (a), 12022.53, subds. (b)-(d);
count 1) and child abuse involving the personal use of a firearm (§§ 273a, subd. (a),
12022.5, subd. (a); count 2). A jury acquitted him of murder, convicted him on count 1
of involuntary manslaughter (§ 192, subd. (b)), convicted him as charged on count 2, and
found the firearm use allegation true as to that count.2 Sentenced to an aggregate term of
17 years in prison and ordered to pay restitution and various fees, fines, and assessments,
he now appeals. We affirm, but order a minor correction to the abstract of judgment.
                                           FACTS
                                               I
                                  PROSECUTION EVIDENCE
         At approximately 10:50 p.m. on August 8, 2009,3 Cynthia Martinez was in her
home in the 1200 block of West Wren, Visalia, when she heard a single “pop” that she
thought was a firecracker. She went outside, then heard a crash like something falling
over. The noise came from the house across the street and one house over from
Martinez’s residence. Martinez heard a woman’s voice say, “Oh, my God. What have
you done?” After that, the voice said, “Oh, my God. Oh, my God. Oh, my God.” Later,
the woman said, “But I love you,” then, “Oh, my God.” Martinez had not heard any
yelling before the pop, and in fact had never heard yelling from the direction of that
house.


1        All statutory references are to the Penal Code.
2      The section 12022.5, subdivision (a) allegation was dismissed, with respect to
count 1, on the People’s motion prior to trial. Jurors were not asked to make a finding of
firearm use with respect to involuntary manslaughter.
3        Unspecified references to dates in the statement of facts are to the year 2009.



                                               2.
         Cynthia Adzhayan, who lived next door to Martinez, heard a loud popping that
sounded like a gunshot. She saw lights flickering off and on at defendant’s house. She
went outside and heard a woman screaming, “Oh, my God. What have you done?” The
woman continued to scream, “Oh, my God. What have you done? I love you. Why did
you do this?” Adzhayan then heard defendant screaming he was sorry, and she also
heard a baby screaming. During this time, she could see a dark shirt bend down, get back
up, and the light in the bedroom turn off and on. This happened several times.
         Martinez called the police. She and Adzhayan saw defendant quickly leave the
house with his 15-month-old daughter, Danielle. Defendant put Danielle in his silver-
colored car, then drove off.
         Visalia Police Detective O’Rafferty and his partner, Officer Gilson, were
dispatched to defendant’s house at approximately 10:55 that evening, in response to a call
of possible shots fired. The lights were off at the house, and they received no answer
when they knocked on the front door. The door was unlocked, however, so they went
inside. There were bloody footprints all over the entryway and into the hallway. Farm
Chow Saefong lay on the floor in one of the bedrooms with what appeared to be fatal
head trauma. There was a great deal of blood all over her and blood spatter on the wall
nearby. There were also foot tracks from her to the front door. No one else was in the
house.
         Shortly before 11:00 that evening, Rico Guajardo and his wife and children were
southbound, waiting for a red light at the intersection of Demaree and Goshen in Visalia,
when a silver Toyota entered the intersection, going westbound on Goshen. The car,
which was going around 40 to 50 miles per hour, attempted to turn left onto Demaree, but
hit a brick sign in the corner of some offices. The car tried to back out, but would not
move. Guajardo and another driver stopped. Defendant exited the vehicle and handed a
child over to Guajardo’s wife. Defendant seemed jittery and “amped up.” He kept
telling Guajardo not to worry about him, but just to go to his house and check on his wife.

                                              3.
He gave the address. Defendant was pacing back and forth, grabbing his hair and saying
he could not believe this. He said he “fucked up.” He also said he could not look at his
daughter because she reminded him so much of his wife, that he did not mean for it to
happen, and that there should not have been a gun in the home but he needed it for
protection because “they” were after him. He kept begging Guajardo to go check on his
wife.
        Visalia Police Officer Kuykendall, who had heard the “shots fired” call, was
dispatched to the accident scene. Kuykendall found a small silver car in the decorative
planter box at the southwest corner of the intersection. Danielle appeared to be
uninjured, but she had a substantial amount of dried blood spatter on her. Defendant was
pacing back and forth. He was crying and appeared to be very distraught. He was
screaming, “How is she? How is she?” When Kuykendall asked who he meant,
defendant responded, “My wife. Is she all right?” Kuykendall asked where his wife was,
and defendant responded with the address on Wren Street about which Kuykendall
already had information. Defendant had bloodstains on his clothing. There was blood on
and in the car and on a cell phone under the driver’s seat. The front of the cell phone was
damaged. Kuykendall detained defendant, who had problems walking.
        Kuykendall subsequently transported defendant to the Tulare County Main Jail.
Defendant remained extremely distraught and emotional during the time Kuykendall was
attempting to obtain booking information, although at one point when Kuykendall
stepped out of the interview room to speak to someone, defendant stopped crying and
appeared to try to listen to the conversation, only to start crying again when Kuykendall
returned.4
        Meanwhile, defendant’s house was searched. The body was in the northeast
bedroom, which also contained a bloodstained ironing board with an iron on top. There
4       Defendant was videotaped while in the interview room.



                                            4.
were a lot of blood stains around the body, as well as a baby’s bottle and some
bloodstained weights and chairs. A bullet hole went through the sliding closet doors and
into the back of the closet. A bullet fragment was on the closet floor. A Heckler & Koch
(H&K) semiautomatic nine-millimeter pistol was next to the bedroom door. A spent
casing was jammed inside the firearm, which did not have any other bullets or any type
of magazine in it. An ammunition magazine containing seven live rounds was found on
the bedroom floor. A plastic gun box that bore the pistol’s serial number and contained
some live rounds was in the room. A bloodstained green ammunition box that was
slightly open was found under the iron. In addition to bullets, the box contained a range
safety checklist and ear plugs. An empty case for a rifle or shotgun was next to the
closet. Two unloaded rifles and a box of 12-gauge shotgun shells were in the closet.
       A handgun holster containing an ammunition magazine was found on the closet
shelf in the southwest (master) bedroom. Two live .38-caliber rounds were with the
holster, and the magazine itself contained a live nine-millimeter round. Also in that
closet were a loaded 12-gauge shotgun and a case containing a .223-caliber rifle. The
rifle was not loaded, but eight rounds of ammunition for it were in a small container on
the stock. There was blood on the bed sheet in that bedroom. On the floor near the head
of the bed was the victim’s cell phone.
       After going through the house, Visalia Police Detective Houser returned to the
police department and attempted to interview defendant. Houser was unable to obtain a
statement the first time he tried; defendant was crying and not responding to any of the
questions Houser asked while attempting to advise defendant of his rights. Defendant
wept for approximately two hours.
       Houser and Sergeant Williams were able to speak to defendant on Houser’s
second attempt, at which time defendant stated he understood his rights. When Houser
asked if defendant had called 911 after Saefong was shot, defendant said he did not. He
indicated his cell phone was broken and he was unable to. Houser later checked

                                            5.
defendant’s phone; when he dialed 911, he was immediately connected to a highway
patrol dispatcher.
       During the interview,5 defendant related that he and Saefong had lived together for
seven years and were planning to have another baby. Defendant said what happened was
an accident. He related that he always kept all his guns loaded. He and Saefong were at
a baptism, and she left earlier than he did. He and Saefong were talking about where they
were going the next day, as they kept Sundays just for them and their baby, and they were
“about to call it a night.” Defendant did not know what happened; the gun “just
discharged.” Defendant could not believe it, and he kissed Saefong. He was going to
take his daughter to the hospital, because he already knew Saefong was not doing good,
and he could not make a call from his cell phone because a part had fallen off of it.
       Asked if he was playing with or checking the gun, defendant replied, “No. I was
just grabbing it to call it a night.” He thought he might have “hit the de-cocker and it
went off.” The gun was on the ironing board in the computer room, and he was picking it
up as they were walking back to the bedroom. His daughter was in the same room. He
did not know how he was holding the gun; he just grabbed it, headed out to the room,
“and bam.” Defendant stated he was negligent; he knew better than to leave “that shit”
loaded, especially with his daughter there.
       Defendant said Saefong liked drinking games, which was what they had been
doing at the baptism. His sister and brother-in-law dropped defendant off at the house,
and everything happened within a minute of him getting home. He was getting ready to
call it a night, and he and Saefong were facing each other when the gun fired. He had
walked into the computer room and she came in after him, because they would always
kiss and hug when he got home. He usually kept the handgun on top of his closet, but it

5      Three interviews were videotaped. The first consisted of defendant crying.
Portions of each were played for the jury.



                                              6.
was on the ironing board that day because he got off work at midnight and was on the
computer all night the night before. The gun had been on the ironing board since the
night before the shooting. The gun’s 10-round-capacity magazine had seven or eight
rounds in it and was in the gun, and a round was in the chamber but the gun was on
safety. Defendant did not recall if the hammer was cocked back, but thought it was. The
gun could not be on safety when the hammer was cocked back; it had to be decocked. He
grabbed it with one hand and suggested to Saefong that they go to the room, then it went
off. He gave Saefong two kisses. He could not believe what was happening. The gun
was double action, so it had like a hair touch.6 Defendant had shot the gun before, but
not too often and not within the last couple of months. He did not remember if his finger
was on the trigger when it went off.
         Asked why he did not go to one of the neighbors and have them call someone,
defendant said he did not know why. After the accident, however, he just stayed there
waiting for the police. He told the people there to call the police and send them to his
house.
         Defendant professed his love for Saefong. He stated he had offered to marry her
numerous times, but she refused because she wanted to finish school first. He denied
there had ever been any kind of violence between the two of them. He said the two had
not been arguing about anything that day.
         An autopsy showed Saefong was shot through the head, with the bullet entering
the left forehead near the hairline and exiting the back of her head. Her skull was also
fractured. There was no powder tattooing in conjunction with the entrance wound,
although there was stippling. This indicated a close range, but not contact, shot.

6       Subsequent testing of the gun, which had a thumb safety, showed that the single
action trigger pull (the amount of pressure on the trigger required to fire the weapon) was
five to six pounds. Double action was 11 to 12 pounds of pressure. The gun discharged
normally in each type of action. The gun did not have a hair trigger.



                                             7.
Dr. Gary Walter opined Saefong possibly would have been able to speak after being shot.
The cause of her death was the perforating gunshot wound to the head.
       Saefong was four feet seven inches tall. Trajectory analysis and measurements
showed the bullet moving left to right, front to back, and at a downward angle of
approximately 10 degrees, assuming Saefong was standing upright and her head was
straight at the time she was shot. According to Walter, however, most people do not
stand in that position for prolonged periods of time, and, if Saefong were holding
something in her arms, it would be even less likely that she would have been in that
position.
       Tom Bevel, an expert in blood stain pattern analysis and crime scene
reconstruction, opined that Saefong was standing at the time of the gunshot. From the
blood spatter and mist-sized stains on Danielle, he concluded Danielle was in very close
proximity to Saefong’s entrance wound — most likely in Saefong’s left arm, facing the
wound — when Saefong was shot, and that Saefong was standing somewhere by a
particular chair at the time. Based on the stippling, Bevel estimated the muzzle was
approximately 12 inches, but possibly as much as 24 inches, away from Saefong’s face
when it was fired. He further opined defendant was standing somewhere in the area to
the side of the chair. Bevel viewed the videotape in which defendant demonstrated how
he removed the weapon from the ironing board; in Bevel’s opinion, the manner shown by
defendant could not have caused the direction of Saefong’s injury. A more likely
scenario was a “point shoulder shot” in which the gun was brought up and held straight
out and aimed.
       Forensic analysis was performed on defendant’s cell phone. Although the track
ball used for navigating the device was missing, making it difficult to navigate through
the phone, the phone was usable. Forensic analysis was also performed on Saefong’s cell
phone. The analysis showed 13 or 14 calls made between 10:20 p.m. and 10:42 p.m. on
August 8 from defendant’s cell phone to Saefong’s cell phone. Saefong’s phone showed

                                            8.
eight missed calls from defendant’s phone on August 8, with the first at 11:23 a.m. and
the last at shortly after 10:43 p.m.
       Friends of defendant and Saefong and members of Saefong’s family testified
defendant was very familiar with guns and knew how to handle them safely. Defendant
obtained the pistol with which Saefong was shot from Saefong’s brother in 2007 or 2008;
the brother had owned the gun about three years and had fired it about six times, and
never had any problems with it. When he gave it to defendant, he showed defendant how
to take it apart and clean it and also the safety. Defendant was able to safely handle the
weapon.
       Friends and family members also testified that defendant and Saefong sometimes
argued, mainly about defendant’s drinking or his going out and drinking with a friend.
Although most never saw anything physical between defendant and Saefong, and
Saefong never said anything about defendant threatening her, Saefong’s mother once saw
defendant grab Saefong’s neck and push Saefong into the bedroom. On one occasion
when defendant and Saefong had been fighting, defendant angrily remarked to a neighbor
that he would love to put her skull in with a baseball bat. Another time, defendant said he
would kill Saefong before he ever saw her with somebody else. Sometimes when the
couple argued, Saefong would tell her sister that she wanted to throw defendant out of the
house, or that she wanted to break up with defendant because of his drinking. Once when
the couple was living with Saefong’s parents, Saefong asked her mother to kick
defendant out of the house. Her mother refused and said it was up to Saefong to get rid
of him.
                                              II
                                       DEFENSE EVIDENCE
       On the day of the shooting, defendant, Saefong, and Danielle attended the baptism
of one of defendant’s cousins at the home of defendant’s aunt in Tulare. A lot of
defendant’s family was there, and there was drinking and food. Saefong was drinking

                                              9.
and was teaching others how to play a drinking game, although she was not intoxicated.7
Defendant was also drinking.8 He and Saefong acted normally toward each other at the
party. Saefong only left before defendant because Danielle was tired. Defendant stayed
because his grandfather was present and defendant did not get to see him often.
Defendant made arrangements for another of his sisters to take him home, and he walked
Saefong out to her car when she and Danielle left. He did not seem upset. He left for
home about half an hour later, and was very happy on the drive from Tulare to Visalia.
       John Jacobson, a private forensic consultant specializing in firearms and crime
scene reconstruction, tested the handgun involved in this case and determined it
functioned normally. The gun was operable without a magazine in the handle, although it
would not typically be fired in that mode. In viewing photographs of the gun taken at the
scene, Jacobson opined that what occurred was a jam, not stovepiping.9 A jam can be
caused by a defective cartridge or an impediment to the movement of the gun’s slide. In
Jacobson’s opinion, had a magazine been in the gun when the weapon was fired, the
cartridge case would not be seated in the position it was in.
       Jacobson took issue with the way the bullet’s trajectory and people’s positions
were determined in this case; in his view, one could not determine where anyone was
standing when the bullet was fired because the necessary tests were not done. In


7      Tests performed after her death showed Saefong’s blood-alcohol content was zero.
8      Blood collected from defendant at 2:55 a.m. had an alcohol content of 0.09
percent. If a person stopped drinking at 11:00 p.m., theoretically it would take 45
minutes or an hour for him or her to reach a peak blood-alcohol content. Accordingly,
the person would have a blood-alcohol content of approximately .16 percent at midnight.
At that level, the person might have problems with decisionmaking and/or motor skills.
9      “Stovepiping” is a term used when a gun is fired and the cartridge case then gets
stuck in the ejection port and so is not completely expelled from the firearm. Causes
include cheaply made firearms, dirty firearms, ammunition type, and not having a firm
grip on the firearm.



                                            10.
addition, the only way to make an accurate determination with respect to stippling was to
conduct tests with the exact same firearm and same type of ammunition that were
involved in the shooting. Otherwise, a determination of the weapon’s distance was
basically just a guess.
       Kenton Wong, an expert in blood pattern analysis and crime scene reconstruction,
reviewed photographs of the stippling on Saefong and concluded she was not standing up
straight when shot. Rather, her head was tilted forward and down slightly. Wong
confirmed the only reliable way to determine distance from stippling was to conduct tests
using the actual firearm and same type of ammunition. Knowing Saefong’s height and
assuming her head landed in a particular spot, Wong opined Saefong was standing in the
area in front of the chair, near where the clip was located, when shot. The absence of
blood on the gun indicated to Wong that the gun was not within a foot of Saefong when it
discharged. From blood spatter on Danielle, Wong opined the child was facing the
wound and in very close proximity to Saefong when Saefong was shot, and that Saefong
was looking toward Danielle.
       Wong concluded there was no physical evidence to prove defendant was in a
“point shoulder aiming stance” when he fired. Rather, any position imaginable that
would align the muzzle of the gun in the proper trajectory (with the bullet going through
Saefong’s head and into the closet) would work.
       Detective Houser reviewed the telephone calls defendant made from jail from
August 9 through August 25. The majority, if not all, were to defendant’s mother. In a
call made on August 9, defendant told his mother the shooting was an accident; he picked
the gun up and it fired. Defendant told his mother it happened very quickly, he kissed
Saefong twice, and he was going to take his daughter to the hospital.




                                           11.
                                       DISCUSSION
                                              I
                                 INSTRUCTIONAL ERROR
       Defendant contends his conviction on count 2 must be reversed because the trial
court gave conflicting instructions on the requisite mental state. The Attorney General
concedes error occurred, but says it was harmless beyond a reasonable doubt.
A.     Background
       Defendant was charged in count 2 with violating subdivision (a) of section 273a,
which provides: “Any person who, under circumstances or conditions likely to produce
great bodily harm or death, willfully causes or permits any child to suffer, or inflicts
thereon unjustifiable physical pain or mental suffering, or having the care or custody of
any child, willfully causes or permits the person or health of that child to be injured, or
willfully causes or permits that child to be placed in a situation where his or her person or
health is endangered, shall be punished by imprisonment in a county jail not exceeding
one year, or in the state prison for two, four, or six years.” The People’s theory was that
defendant endangered Danielle by means of his conduct toward Saefong.
       During the jury instruction conference, the trial court stated it would give
CALCRIM No. 225 (circumstantial evidence: intent or mental state). The court then
announced it would not give CALCRIM No. 251 (union of act and intent: specific intent
or mental state), as that was not the proper instruction. Rather, it would give CALCRIM
No. 252 (union of act and intent: general and specific intent together) “because the
abuse, child abuse, is a general intent crime.”
       The jury was subsequently instructed, pursuant to CALCRIM No. 225: “The
People must prove not only that the defendant did the acts charged but also that he acted
with a particular intent and/or mental state. The instruction for each crime and allegation
explains the intent and mental state required.” Several instructions later, jurors were told,
pursuant to CALCRIM No. 252:

                                             12.
               “The crimes and/or allegations charged in Counts 1 and 2 and the
       lesser included offenses require the union or joint operation of act in [sic]
       wrongful intent.

              “The following crimes and allegations require general criminal
       intent: Child abuse and attempted child abuse.

              “For you to find a person guilty of these crimes …, that person must
       not only commit the prohibited act or fail to do the required act, but must
       do so with wrongful intent.

              “A person acts with wrongful intent when he or she intentionally
       does a prohibited act or fails to do a required act. However, it is not
       required that he or she intend to break the law. The act required is
       explained in the instruction for that crime .…

             “The following crimes require a specific intent and/or mental state:
       Murder, voluntary manslaughter, and involuntary manslaughter.” (Italics
       added.)
       The trial court subsequently instructed the jury on accident or misfortune, first and
second degree murder, voluntary manslaughter based on sudden quarrel or heat of
passion, and involuntary manslaughter. In pertinent part, the court instructed that
involuntary manslaughter required criminal negligence, and it defined that mental state
pursuant to CALCRIM No. 580: “Criminal negligence involves more than ordinary
carelessness, inattention, or mistake in judgment. [¶] A person acts with criminal
negligence when: One, he acts in a reckless way that creates a high risk of death or great
bodily injury, and; Two, a reasonable person would have known that acting in that way
would create such a risk. In other words, a person acts with criminal negligence when the
way he or she acts is so different from the way an ordinarily careful person would act in
the same situation that his or her act amounts to disregard to human live [sic] or
indifference to the consequences of that act.”
       After instructing on voluntary intoxication, the court turned to count 2. Pursuant
to CALCRIM No. 821, it told jurors in pertinent part:




                                             13.
               “The defendant is charged in Count 2 with child abuse likely to
       produce great bodily harm. To prove that the defendant is guilty of this
       crime, the People must prove that: One, the defendant while having care or
       custody of a child willfully caused or permitted the child to be placed in a
       situation where the child’s person or health might have been in danger;
       Two, the defendant caused or permitted the child to be in danger under
       circumstances or conditions likely to produce great bodily harm, and;
       Three, the defendant was criminally negligent when he caused or permitted
       the child to be in danger.” (Italics added.)
Jurors were told that someone commits an act willfully “when he or she does it willingly
or on purpose,” and were given the same definition of criminal negligence as that given
with respect to involuntary manslaughter.
B.     Analysis
       “The law imposes on a trial court the sua sponte duty to properly instruct the jury
on the relevant law and, as such, requires the giving of a correct instruction regarding the
intent necessary to commit the offense and the union between that intent and the
defendant’s act or conduct. [Citations.]” (People v. Alvarado (2005) 125 Cal.App.4th
1179, 1185; see also People v. Rubalcava (2000) 23 Cal.4th 322, 333-334.) Because
instructions regarding the elements of the crime affect a defendant’s substantial rights,
defendant did not need to object at trial in order to preserve his claim for appellate
review. (§ 1259; People v. Hillhouse (2002) 27 Cal.4th 469, 503.)
       “Section 273a encompasses a wide variety of situations and includes both direct
and indirect conduct. [Citations.] When the harm to a child is directly inflicted, the
requisite mental state for the section 273a offense is general criminal intent. [Citations.]
When that harm is indirectly inflicted, the requisite mental state is criminal negligence.
[Citations.]” (People v. Burton (2006) 143 Cal.App.4th 447, 454; see generally People v.
Valdez (2002) 27 Cal.4th 778, 781, 783-790; People v. Sargent (1999) 19 Cal.4th 1206,
1219-1220.)
       In the present case, there was no evidence, and the People did not contend,
defendant directly inflicted harm to Danielle. Accordingly, as the Attorney General


                                             14.
concedes, the trial court erred by instructing jurors, pursuant to CALCRIM No. 252, that
child abuse was a general intent crime. (Cf. People v. Rogers (2006) 39 Cal.4th 826,
872-873.) However, the trial court correctly instructed, pursuant to CALCRIM No. 821,
that jurors must find defendant criminally negligent in order to convict him on count 2.
Accordingly, the question to be decided is whether the conflicting instructions resulted in
prejudice.
       Where conflicting instructions on the mental state element of an offense are given,
prejudice is assessed under the beyond-a-reasonable-doubt standard of Chapman v.
California (1967) 386 U.S. 18. (People v. Lee (1987) 43 Cal.3d 666, 676; People v.
Chavez (2004) 118 Cal.App.4th 379, 387.) Because the conflicting portion of CALCRIM
No. 252 could have cancelled out CALCRIM No. 821’s correct statement of the required
mental state, the potential for prejudice here is the same that arises when jury instructions
omit an element of an offense. (See People v. Gonzalez (2012) 54 Cal.4th 643, 662.) In
Neder v. United States (1999) 527 U.S. 1 (Neder), the United States Supreme Court
concluded that in this context, “a demonstration of harmless error [under Chapman] does
not require proof that a particular jury ‘actually rested its verdict on the proper ground
[citation], but rather on proof beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error [citation]. Although the former can be proof
of the latter [citation], the Neder majority made clear that such a determination is not
essential to a finding of harmlessness [citation], which instead “will often require that a
reviewing court conduct a thorough examination of the record” [citation].’ [Citation.]”
(People v. Gonzalez, supra, 54 Cal.4th at p. 666; see also Neder, supra, 527 U.S. at
pp. 17-18, 19.)
       “We have exhaustively reviewed the trial evidence to determine ‘whether the
record contains evidence that could rationally lead to a contrary finding with respect to’”
the element of criminal negligence. (People v. Gonzalez, supra, 54 Cal.4th at p. 666,
quoting Neder, supra, 527 U.S. at p. 19.) We have also considered the erroneous

                                             15.
instruction in the context of the instructions as a whole (see People v. Frye (1998) 18
Cal.4th 894, 957, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th
390, 421, fn. 22) and the arguments of counsel to the jury (see People v. Chavez, supra,
118 Cal.App.4th at p. 388). We conclude the error was harmless beyond a reasonable
doubt.
         First, jurors were instructed, pursuant to CALCRIM No. 225, that the instruction
for each crime explained the required intent and mental state. We believe it reasonably
likely jurors — assuming they even realized there was a conflict between CALCRIM
Nos. 252 and 821 — concluded CALCRIM No. 821’s requirement of criminal negligence
prevailed over CALCRIM No. 252’s statement of general intent, in light of CALCRIM
No. 225. (See People v. Rogers, supra, 39 Cal.4th at pp. 873-874.)
         Second, and most importantly, the prosecution and defense expert witnesses all
placed Danielle facing the wound, and in very close proximity to Saefong (probably in
her arms), when Saefong was shot. Both counsel at least implicitly recognized, in their
arguments to the jury, that the child abuse count was inextricably intertwined with the
homicide charge. As we have already stated, on the homicide charge, the jury convicted
defendant of involuntary manslaughter, a crime requiring criminal negligence. Based on
the evidence adduced at trial, no rational jury could have concluded that defendant acted
with criminal negligence in shooting Saefong, but not with respect to endangering
Danielle. (See People v. Clark (2011) 201 Cal.App.4th 235, 251; People v. Sarkis (1990)
222 Cal.App.3d 23, 29.)
                                              II
                              SUFFICIENCY OF THE EVIDENCE
         With respect to count 2, the jury found true a section 12022.5, subdivision (a)
allegation. That provision mandates imposition of a sentence enhancement upon “any
person who personally uses a firearm in the commission of a felony .…” Defendant
contends the enhancement was not supported by substantial evidence.

                                              16.
       The applicable legal principles are clear. The test of sufficiency of the evidence is
whether, reviewing the whole record in the light most favorable to the judgment below,
substantial evidence is disclosed such that a reasonable trier of fact could find the
essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26
Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial
evidence is that evidence which is “reasonable, credible, and of solid value.” (People v.
Johnson, supra, at p. 578.) An appellate court must “presume in support of the judgment
the existence of every fact the trier could reasonably deduce from the evidence.” (People
v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence
(People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses,
or resolve factual conflicts, as these are functions reserved for the trier of fact (In re
Frederick G. (1979) 96 Cal.App.3d 353, 367). This standard of review is applicable
regardless of whether the prosecution relies primarily on direct or on circumstantial
evidence (People v. Lenart (2004) 32 Cal.4th 1107, 1125), and applies to enhancements
as well as to substantive offenses (People v. Wilson (2008) 44 Cal.4th 758, 806).
       “‘Whether a defendant used a firearm in the commission of an … offense is for the
trier of fact to decide. [Citation.]’” (People v. Wilson, supra, 44 Cal.4th at p. 806.)10
“‘Although it is the jury’s duty to acquit a defendant if it finds the circumstantial
evidence susceptible of two reasonable interpretations, one of which suggests guilt and
the other innocence, it is the jury, not the appellate court that must be convinced of the
defendant’s guilt beyond a reasonable doubt. [Citation.]’ [Citation.] Where the
circumstances reasonably justify the trier of fact’s findings, a reviewing court’s
conclusion the circumstances might also reasonably be reconciled with a contrary finding

10     Although, as defendant notes, it appears the jury in the present case was not
provided with a written copy of the pertinent instruction, defendant does not predicate a
claim of error on that omission, which did not implicate his state or federal constitutional
rights. (People v. Samayoa (1997) 15 Cal.4th 795, 845.)



                                              17.
does not warrant the judgment’s reversal. [Citation.]” (People v. Zamudio (2008) 43
Cal.4th 327, 357-358.) Reversal on the ground of insufficient evidence “is unwarranted
unless it appears ‘that upon no hypothesis whatever is there sufficient substantial
evidence to support’” the enhancement finding. (People v. Bolin (1998) 18 Cal.4th 297,
331.)
        “Due process requires the prosecution to shoulder the burden of proving each
element of a sentence enhancement beyond a reasonable doubt. [Citations.]” (People v.
Tenner (1993) 6 Cal.4th 559, 566.) Defendant says the evidence in his case is
insufficient to sustain the jury’s finding that he “used” a firearm within the meaning of
section 12022.5, subdivision (a), as there was no evidence he intended to discharge the
weapon, and the jury found he did not intentionally kill Saefong or intentionally inflict
unjustifiable pain or mental suffering upon Danielle. Defendant argues that “grossly
negligent discharge of a firearm which in and of itself is the basis for a child
endangerment conviction without any further ‘use’ of the firearm” does not support an
enhancement under the statute.
        “By employing the term ‘uses’ instead of ‘while armed’ the Legislature requires
something more than merely being armed. [Citation.]” (People v. Chambers (1972) 7
Cal.3d 666, 672.) “Proof of firearm use during a felony does not require a showing the
defendant ever fired a weapon. ‘Although the use of a firearm connotes something more
than a bare potential for use, there need not be conduct which actually produces harm but
only conduct which produces a fear of harm or force by means or display of a firearm in
aiding the commission of one of the specified felonies. “Use” means, among other
things, “to carry out a purpose or action by means of,” to “make instrumental to an end or
process,” and to “apply to advantage.” [Citation.] The obvious legislative intent to deter
the use of firearms in the commission of the specified felonies requires that “uses” be
broadly construed.’ [Citation.] ‘Thus when a defendant deliberately shows a gun, or
otherwise makes its presence known, and there is no evidence to suggest any purpose

                                             18.
other than intimidating the victim (or others) so as to successfully complete the
underlying offense, the jury is entitled to find a facilitative use rather than an incidental or
inadvertent exposure. The defense may freely urge the jury not to draw such an
inference, but a failure to actually point the gun, or to issue explicit threats of harm, does
not entitle the defendant to a judicial exemption from section 12022.5[, subdivision] (a).’
[Citations.]” (People v. Wilson, supra, 44 Cal.4th at pp. 806-807, italics omitted.)
       The fact that a fatal wound was inflicted by a firearm does not compel the
conclusion, as a matter of law, that the defendant was “using” the firearm and so was
subject to the enhancement. (See People v. Doyle (1958) 162 Cal.App.2d 158, 163.)
Rather, personal use — whether by menacing display, firing, or striking with the gun —
must be done intentionally. (People v. Johnson (1995) 38 Cal.App.4th 1315, 1320.) This
does not mean, however, that a section 12022.5, subdivision (a) enhancement requires
proof the perpetrator specifically intended to utilize the gun to accomplish the underlying
crime; “[a]n intentional use of a firearm in the commission of a crime does not
encompass any specific intent.” (People v. Wardell (2008) 162 Cal.App.4th 1484, 1494.)
“A gun use occurs ‘in the commission of’ an offense if the gun use in fact objectively
facilitated the commission of the offense. The issue is not one of the gun user’s
subjective mental state but of the objective role that the gun use played in the commission
of the crime.” (Id. at p. 1495.)
       In the present case, evidence was adduced at trial from which a rational trier of
fact could have concluded — not merely speculated (see People v. Raley (1992) 2 Cal.4th
870, 891) — that defendant intentionally used a firearm within the meaning of
section 12022.5, subdivision (a), whether by firing or menacing display. This evidence
included the close-range nature of the shot; the bullet’s trajectory; expert opinion that this
was a “point shoulder shot,” which involves the gun being brought up, held straight out,
and aimed; the fact defendant knew how to safely handle firearms; the number of missed
calls received by Saefong’s cell phone from defendant’s cell phone within a short time

                                              19.
before the shooting, together with the fact defendant had been drinking and he and
Saefong had argued a number of times in the past about his drinking; defendant’s leaving
the scene without summoning aid, even though, according to his own statement to police,
he knew Saefong was still alive; and defendant’s lies to police about not being able to call
911 because his cell phone was broken, where Danielle was at the time the shot was fired,
and the amount of pressure needed to fire the gun.
       Our concern, when determining whether the evidence was sufficient to support a
conviction or finding, is not what this jury may have found or not found, but with what a
reasonable trier of fact could find. (See People v. Lopez (1982) 131 Cal.App.3d 565,
569-572.) From the foregoing evidence, a rational juror conceivably could have found
defendant acted with express malice toward Saefong. (See People v. Smith (2005) 37
Cal.4th 733, 741-742.) The gun need not have been used against Danielle in order for the
use to have occurred “in the commission of” the violation of section 273a,
subdivision (a). (See People v. Fierro (1991) 1 Cal.4th 173, 226-227.)
       Defendant says, however, that under the so-called Toledo doctrine (People v.
Toledo (1948) 85 Cal.App.2d 577), the prosecution was bound by defendant’s
extrajudicial statements that were introduced by the prosecution. Defendant says this is
so because those statements were irreconcilable with a theory that defendant displayed
the firearm in a menacing manner or intentionally fired the gun, and there was no
competent and substantial evidence otherwise. Defendant misperceives the scope and
effect of the doctrine.
       In Toledo, the defendant was charged with murder and convicted of manslaughter.
He admitted striking the fatal blow, but claimed self-defense. The physical evidence was
consistent with his version of events. Construing former section 1105,11 the appellate

11    See now section 189.5. Subdivision (a) of this statute, which is substantively
unchanged from subdivision (a) of former section 1105, provides: “Upon a trial for
murder, the commission of the homicide by the defendant being proved, the burden of


                                            20.
court held a defendant need only raise a reasonable doubt with respect to self-defense; the
defendant’s statement did so; and there was no rational way to believe the defendant’s
concession that he struck the victim, yet reject the remaining exculpatory portion of his
statement. Accordingly, the appellate court ruled, the record did not support the
defendant’s manslaughter conviction. (Toledo, supra, 85 Cal.App.2d at pp. 579-582.)
       Based on Toledo, it has been stated that “if the prosecution presents as a part of its
case a statement of the defendant evidencing justification for the alleged crime, the
prosecution is bound by that evidence in the absence of proof to the contrary.
[Citations.]” (People v. Griego (1955) 136 Cal.App.2d 51, 56; see People v. Acosta
(1955) 45 Cal.2d 538, 542-543.) In People v. Burney (2009) 47 Cal.4th 203, however,
the California Supreme Court referred to the Toledo doctrine as “an antiquated and
questionable statement of the law.” (People v. Burney, supra, at p. 248.) The high court
stated: “Opinions rendered by the Courts of Appeal subsequent to Toledo demonstrate
that its holding has been superseded at least in part. ‘First, the so-called Toledo doctrine
(whose genesis seems to have been merely an argument offered on appeal) actually refers
to a principle of judicial review invoked in homicide prosecutions obviating a defendant’s
burden of showing mitigation or justification where the prosecution’s proof itself tends to
show same or a lesser unlawful homicide. [Citations.] … To the extent that the doctrine
is founded upon a notion that the prosecution is bound by their witnesses’ statements
[citation] on the antiquated theory of vouchsafing one’s own witnesses [citation], that
theory has long since been discarded in favor of the modern rule allowing impeachment
of a witness by any party, “including the party calling him.” [Citations.] In the final



proving circumstances of mitigation, or that justify or excuse it, devolves upon the
defendant, unless the proof on the part of the prosecution tends to show that the crime
committed only amounts to manslaughter, or that the defendant was justifiable or
excusable.”



                                             21.
analysis the question of defendant’s guilt must be resolved from all the evidence
considered by the jury.’ [Citation.]” (Ibid.)
       “[C]redibility is governed by more than just the words transcribed by a court
reporter. A trier of fact is free to disbelieve a witness, even one uncontradicted, if there is
any rational ground for doing so. [Citations.]” (In re Jessica C. (2001) 93 Cal.App.4th
1027, 1043.) Here, there was physical and other evidence from which a rational juror
could have disbelieved defendant’s statements to police, and found instead that he
intentionally “used” a firearm in a manner that brought him within the ambit of
section 12022.5, subdivision (a).
       That such a conclusion might be inconsistent with the jury’s involuntary
manslaughter verdict is immaterial. “It is well established that, under section 954,
inconsistent verdicts are allowed to stand if the verdicts are otherwise supported by
substantial evidence. [Citation.]” (People v. Miranda (2011) 192 Cal.App.4th 398, 405;
accord, People v. Santamaria (1994) 8 Cal.4th 903, 911; see also United States v. Powell
(1984) 469 U.S. 57, 66-67.)12 “The rule applies equally to inconsistent enhancement
findings [citation], and to an enhancement finding that is inconsistent with the verdict on
a substantive offense [citation].” (People v. Miranda, supra, 192 Cal.App.4th at p. 405.)
“‘Sufficiency-of-the-evidence review involves assessment by the courts of whether the
evidence adduced at trial could support any rational determination of guilty beyond a
reasonable doubt. [Citations.] This review should be independent of the jury’s
determination that evidence on another count was insufficient.’ [Citation.]” (People v.
Lewis (2001) 25 Cal.4th 610, 656, italics added, quoting United States v. Powell, supra,
469 U.S. at p. 67.)



12     Section 954 provides, in pertinent part: “An acquittal of one or more counts shall
not be deemed an acquittal of any other count.”



                                             22.
       Finally, there is the question whether the discharge of a firearm, which is itself the
basis for conviction under section 273a, subdivision (a), can support a sentence
enhancement under section 12022.5, subdivision (a) without any further use of the
firearm. In other words, can the same firearm use be the basis for both the substantive
offense and the enhancement? We conclude that it can. Section 12022.5, subdivision (a)
mandates imposition of a sentence enhancement for personal use of a firearm in the
commission of a felony “unless use of a firearm is an element of that offense.” “The
phrase ‘element of the offense’ signifies an essential component of the legal definition of
the crime, considered in the abstract. [Citations.]” (People v. Hansen (1994) 9 Cal.4th
300, 317, overruled on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1199;
accord, People v. Smith (2007) 150 Cal.App.4th 89, 94-95; People v. Ross (1994) 28
Cal.App.4th 1151, 1156.) Although here defendant violated section 273a, subdivision (a)
by means of a firearm, the offense obviously can be committed without the use of any
weapon at all. (See People v. Smith, supra, 150 Cal.App.4th at p. 95.) “Under section
12022.5, subdivision (a), the enhancement applies unless ‘use of a firearm is an element
of the offense,’ and not merely the means by which the offense was committed or the
factual predicate of a theory upon which the conviction was based. [Citations.]” (People
v. Hansen, supra, 9 Cal.4th at p. 317.)
                                             III
                          SENTENCING AND RELATED ERRORS
A.     Imposition of Upper and Consecutive Terms
       The sentence range faced by defendant for involuntary manslaughter was two,
three, or four years. (§ 193, subd. (b).)13 The sentence range he faced for child abuse


13    Involuntary manslaughter is now punished pursuant to section 1170,
subdivision (h) rather than by imprisonment. In light of the remainder of the sentence
imposed on defendant, we are not concerned with sentencing under so-called


                                             23.
was two, four, or six years. (§ 273a, subd. (a).) The sentence range he faced for the
firearm use enhancement was three, four, or 10 years. (§ 12022.5, subd. (a).)
       Prior to sentencing, the prosecutor filed a statement in aggravation that requested
imposition of the maximum aggregate term of 17 years, calculated as the aggravated term
of six years on count 2, plus the aggravated term of 10 years for the enhancement, plus a
consecutive term of one year (one-third of the middle term) on count 1. After arguing
against a grant of probation, the prosecutor asserted there were no factors in mitigation,
but several in aggravation: the crime involved great violence, great bodily harm, threat of
great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, and
callousness (Cal. Rules of Court,14 rule 4.421(a)(1)); the victim was particularly
vulnerable (rule 4.421(a)(3)); the manner in which the crime was carried out indicated
planning (rule 4.421(a)(8)); defendant took advantage of a position of trust and
confidence to commit the offense (rule 4.421(a)(11)); and defendant engaged in violent
conduct that indicated a serious danger to society (rule 4.421(b)(1)). The prosecutor
further argued absence of remorse and the danger posed by defendant (see rule 4.408(a)).
       Defense counsel filed a statement in mitigation, together with supporting letters, in
which he asked the court to grant probation or, alternatively, to sentence defendant to the
mitigated term for the offenses. After discussing the criteria affecting probation, defense
counsel asserted the following circumstances in mitigation existed: defendant was a
passive participant or played a minor role in events (rule 4.423(a)(1)); although the
victims were not initiators of the crime, Saefong willingly placed herself in proximity to a
loaded weapon (rule 4.423(a)(2)); the crime was committed due to an unusual
circumstance (an accident) not likely to recur (rule 4.423(a)(3)); although defendant was


realignment, and defendant appropriately does not claim he was entitled to serve his
sentence in county jail rather than state prison.
14     All references to rules are to the California Rules of Court.



                                            24.
not induced by others to participate in the crime, his level of intoxication contributed to
his negligence in handling the weapon (rule 4.423(a)(4)); defendant had an insignificant
record of criminal conduct (rule 4.423(b)(1)); and defendant always admitted this was an
accident, a claim with which the jury agreed (rule 4.423(b)(3)). In aggravation, defense
counsel conceded Danielle was under two years of age, and defendant’s handling of the
firearm was negligent and put her in grave danger (rule 4.421(a)(3)).
       The probation officer’s report (RPO) showed defendant, who was 26 years old
when interviewed for the report, had a juvenile record consisting of two separate offenses
— battery (fight at school) and disturbing the peace — and an adult record consisting of a
2005 misdemeanor violation of section 415, which resulted in a fine. Defendant denied
any gang affiliation, although jail records indicated he was a Northern gang dropout.
Defendant admitted last using marijuana when he was 14, denied the use of other drugs,
and admitted first using alcohol at age 14 and drinking a 12-pack on a weekly basis at the
time of his arrest. The RPO reflected defendant was employed at the time of the offense,
and had a steady employment history as an adult. After discussing criteria affecting
probation, the RPO related there were no factors in mitigation. In aggravation, the RPO
recited the fact the crime involved great violence, great bodily harm, the threat of great
bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness
(rule 4.421(a)(1)), and the fact defendant had engaged in violent conduct, indicating a
serious danger to society (rule 4.421(b)(1)). The RPO recommended imposition of the
four-year middle term on both count 2 and the firearm use enhancement, plus a
consecutive term of one year on count 1, for a total of nine years in prison.
       At sentencing, the trial court stated it had read the RPO, the parties’ written
statements, and letters that had been submitted. Both parties submitted the matter on
their respective written statements. Several of Saefong’s family members spoke, as did
defendant. This ensued:



                                             25.
       “[THE COURT:] All right. Having heard the statements from the
family members, having read the letters, having read the probation report,
this Court is not in agreement with the probation recommendation. This
Court believes that there are no factors in mitigation, that the factors in
aggravation justify an aggravated term.

       “The defendant -- the jurors saw this as a manslaughter, and the
Court certainly is not going to dispute what the jurors found. They found
what they found, but the jurors also found that the defendant endangered
the health and safety of this child. And that carries up to a maximum of six
years along with ten years for the use of a gun.

        “This house was full of firearms. Everywhere you turned there was
a firearm. There was ammunition. There were firearms in cases. There
were firearms out of cases. There was a loaded firearm on an ironing
board. And that’s the firearm that was used to kill the mother of this child.
The defendant knew firearms, knew how they worked, was very familiar
with them. Photos were shown with the defendant with a variety of
firearms. The defendant went to the range, knew how to use firearms. The
idea that a person knowing firearms as the defendant in this Court’s opinion
obviously did -- would turn with a firearm off safety, chambered and fire a
round into the head of a victim holding a child is almost beyond belief.

       “The defendant had the opportunity to render aid to this victim that
he claims accidentally was shot. Instead of that, he fled the scene.

       “He lied to law enforcement when they asked him why he didn’t call
911. He said his phone didn’t work. That was a lie. His phone did work.
You could phone 911. It was checked. And rather than render aid to this
victim, he fled the scene and lied to law enforcement.

       “The aggravating factors justify an aggravated term.

       “In Count 2, the defendant’s application for probation is denied.
He’s committed to state prison for the aggravated term of six years plus an
additional consecutive ten years with credits .…

      “In Count 1, he’s committed to state prison for one-third the
midterm --

       “[DEFENSE COUNSEL]: Your Honor, on those credits, I just want
to update them .…

     “THE COURT: Oh. Thank you, Counsel. [¶] … [¶] Thank you,
Counsel, for catching that.… [¶] … [¶] … In Count 1, he’s committed to

                                     26.
       state prison for one-third the midterm of one year. [¶] … [¶] That’s
       consecutive to Count 2 .…”
       Defendant now contends he is entitled to be resentenced, because the reasons
stated for imposing the upper term were not reasonably related to the offense and
constituted dual use of facts.
       As a preliminary matter, the Attorney General says defendant’s claims were
forfeited by defendant’s failure to object at sentencing. (See People v. Scott (1994) 9
Cal.4th 331, 353-355 (Scott).) Defendant concedes the lack of objection, but says it
should not result in forfeiture because the trial court did not provide any indication of the
reasons upon which it would rely before pronouncing judgment, and it did not allow
counsel to interrupt while judgment was being pronounced.
       The California Supreme Court has explained that “the Scott rule applies when the
trial court ‘clearly apprise[s]’ the parties ‘of the sentence the court intends to impose and
the reasons that support any discretionary choices’ [citation], and gives the parties a
chance to seek ‘clarification or change’ [citation] by objecting to errors in the sentence.
The parties are given an adequate opportunity to seek such clarifications or changes if, at
any time during the sentencing hearing, the trial court describes the sentence it intends to
impose and the reasons for the sentence, and the court thereafter considers the objections
of the parties before the actual sentencing. The court need not expressly describe its
proposed sentence as ‘tentative’ so long as it demonstrates a willingness to consider such
objections.… [¶] It is only if the trial court fails to give the parties any meaningful
opportunity to object that the Scott rule becomes inapplicable.” (People v. Gonzalez
(2003) 31 Cal.4th 745, 752.)
       Here, the trial court gave no indication it intended to depart from the probation
officer’s recommended sentence or the aggravating factors listed in the RPO, until it was
already in the process of pronouncing judgment. On the other hand, the court showed
itself willing to entertain defense counsel’s argument regarding time credits, even though



                                             27.
that argument was presented by way of interruption. (See People v. Downey (2000) 82
Cal.App.4th 899, 916.)
       Under the circumstances, we find it likely, albeit not certain, the trial court would
have considered objections to the manner in which it made or articulated its discretionary
sentencing choices. (See Scott, supra, 9 Cal.4th at p. 353.) However, in light of
defendant’s alternative claim that trial counsel’s failure to object constituted ineffective
assistance of counsel, as well as our inherent authority to address the issue even if
forfeited (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6), we find it
appropriate to review defendant’s claims on the merits rather than finding them forfeited.
       Section 1170 affords a trial court broad discretion in imposing sentence. (People
v. Sandoval (2007) 41 Cal.4th 825, 847.) “[D]iscretion is abused whenever the court
exceeds the bounds of reason, all of the circumstances being considered. [Citations.]”
(People v. Giminez (1975) 14 Cal.3d 68, 72.) “[A] trial court will abuse its discretion …
if it relies upon circumstances that are not relevant to the decision or that otherwise
constitute an improper basis for decision. [Citations.]” (People v. Sandoval, supra, 41
Cal.4th at p. 847.) Absent a clear showing of abuse, a trial court’s discretion in
sentencing will not be disturbed on appeal. (People v. Sanchez (1982) 131 Cal.App.3d
718, 740.) Moreover, a sentencing court is presumed to have acted properly, absent a
clear showing that its sentence choice is arbitrary or irrational. (People v. Hubbell (1980)
108 Cal.App.3d 253, 260.)
       “The statutes and sentencing rules generally require the court to state ‘reasons’ for
its discretionary choices on the record at the time of sentencing. [Citations.]” (Scott,
supra, 9 Cal.4th at p. 349; see also People v. Sandoval, supra, 41 Cal.4th at p. 847.)
“Such reasons must be supported by a preponderance of the evidence in the record and
must ‘reasonably relat[e]’ to the particular sentencing determination. [Citations.]”
(Scott, supra, 9 Cal.4th at pp. 349-350, fn. omitted.) “The relevant circumstances may be
obtained from the case record, the probation officer’s report, other reports and statements

                                             28.
properly received, statements in aggravation or mitigation, and any evidence introduced
at the sentencing hearing.” (Rule 4.420(b).)
       “[I]n assessing factors in aggravation or in mitigation the sentencing court not only
may but must examine all of the circumstances of the crime. [Citations.] ‘[T]he
“circumstances” the sentencing judge may look to in aggravation or in mitigation of the
crime include “attendant facts,” “the surroundings at the commission of an act.”
[Citation.] “Circumstances” include “practically everything which has a legitimate
bearing” on the matter in issue. [Citations.]’ [Citation.]” (People v. Blade (1991) 229
Cal.App.3d 1541, 1544.)
       As this court has explained, because “[n]either section 1170 nor the California
Rules of Court attempt to provide an inclusive list of aggravating circumstances … a trial
court is free to base an upper term sentence upon any aggravating circumstance that
(1) the court deems significant and (2) is reasonably related to the decision being made.
[Citations.]” (People v. Moberly (2009) 176 Cal.App.4th 1191, 1196.) In this respect,
“‘[t]he essence of “aggravation” relates to the effect of a particular fact in making the
offense distinctively worse than the ordinary.’ [Citation.]” (People v. Rodriguez (1993)
21 Cal.App.4th 232, 241; accord, People v. Black (2007) 41 Cal.4th 799, 817.)
       A single factor may be relevant to more than one sentencing choice. (Scott, supra,
9 Cal.4th at p. 350.) For example, only a single aggravating factor is required to impose
one or more upper terms or to impose one or more consecutive sentences, so long as that
fact is reasonably related to each count for which it is used. (People v. Osband (1996) 13
Cal.4th 622, 728-729; People v. Robinson (1992) 11 Cal.App.4th 609, 616, disapproved
on another ground in Scott, supra, 9 Cal.4th at p. 353, fn. 16; People v. Price (1984) 151
Cal.App.3d 803, 812.) On the other hand, “such dual or overlapping use is prohibited to
some extent.” (Scott, supra, 9 Cal.4th at p. 350.) Thus, a court cannot use a single fact
both to impose the upper term and to impose an enhancement (§ 1170, subd. (b); Scott,
supra, 9 Cal.4th at p. 350; rule 4.420(c)), or to impose the upper term and a consecutive

                                             29.
sentence (People v. Osband, supra, 13 Cal.4th at p. 728). Similarly, a fact that
constitutes an element of the offense may not be used to aggravate or enhance a sentence.
(Scott, supra, 9 Cal.4th at p. 350; rule 4.420(d).) A court can, however, use the same fact
or facts to aggravate both the base term for an offense and the sentence on an
enhancement. (People v. Moberly, supra, 176 Cal.App.4th at p. 1198.)
       In the present case, the trial court did not make clear which of the reasons it found
significant related to which discretionary sentencing decision(s). Assuming there was
improper dual use of facts or reliance on factors not reasonably related to a particular
sentencing choice, however, we see no cause for remand. “When a trial court has given
both proper and improper reasons for a sentence choice, a reviewing court will set aside
the sentence only if it is reasonably probable that the trial court would have chosen a
lesser sentence had it known that some of its reasons were improper. [Citation.]”
(People v. Price (1991) 1 Cal.4th 324, 492.) It is readily apparent, from the trial court’s
comments, that it intended to impose the maximum sentence possible; the factors it
identified and that are shown by the record permitted it to do so without running afoul of
the various sentencing rules. (See People v. Avalos (1984) 37 Cal.3d 216, 233; People v.
Moreno (1982) 128 Cal.App.3d 103, 110.)
       The record supported the trial court’s statement that the house was full of firearms
and ammunition, and that there was a loaded firearm on the ironing board. In our view,
under the circumstances of this case, these factors were directly related to the child abuse
count and the firearm use enhancement. That they are not factors in aggravation listed in
the rules of court is immaterial. (People v. Black, supra, 41 Cal.4th at p. 817; rule
4.408(a).) They were not elements of the substantive offense or the enhancement; “[a]
sentencing factor is an element of the offense if the crime as defined by statute cannot be
accomplished without performance of the acts which constitute such factor. [Citations.]”
(People v. Clark (1992) 12 Cal.App.4th 663, 666, italics added.) Moreover, they had the



                                            30.
effect of making the offense worse than the ordinary (People v. Black, supra, 41 Cal.4th
at p. 817), because they created a tragedy waiting to happen.
       Defendant says the court’s reliance on how defendant handled the gun — turning
with the gun off safety and with a round chambered, and firing a bullet into the head of a
victim — was essentially the grossly negligent handling of the firearm, and could not be
used to support the upper term for child abuse because of the firearm enhancement
attached to that offense. Assuming he is correct, the trial court identified other, valid
factors supporting imposition of the aggravated term for child abuse, as we have just
explained.
       Defendant further says grossly negligent discharge of the firearm does not
properly support the upper term for the firearm enhancement, because the reckless
mishandling of the firearm did not make the firearm use distinctively worse than the
ordinary. Defendant relies on People v. Rodriguez, supra, 21 Cal.App.4th at pages 241-
242, in which the Court of Appeal found improper the trial court’s reliance, in imposing
an aggravated term for a firearm use enhancement, on the fact the gun misfired and the
defendant had to rerack.
       We are not convinced. “The gun use enhancement is applicable to all uses of a
weapon, from the most ‘benign’ display to the most heinous confrontation.” (People v.
Sandoval (1994) 30 Cal.App.4th 1288, 1301.) Here, the evidence at trial showed
defendant did not merely possess or display the handgun, he fired it, even if
unintentionally. (See People v. Douglas (1995) 36 Cal.App.4th 1681, 1691; People v.
Mustafaa (1994) 22 Cal.App.4th 1305, 1312.) The trial court’s comments indicate a
finding of circumstances beyond what was necessary for finding use of the gun or, for
that matter, criminal negligence. (See People v. Douglas, supra, 36 Cal.App.4th at
p. 1691.)
       Moreover, as conceded by defendant in his statement in mitigation, Danielle was a
particularly vulnerable victim, a fact that constitutes a circumstance in aggravation under

                                             31.
rule 4.421(a)(3). Defendant now takes issue with this position, arguing that because the
underlying offense by its nature presumes a vulnerable victim, Danielle was not
“particularly” vulnerable.
       We disagree. “[A]ggravating a sentence due to ‘particular vulnerability,’ where
vulnerability is based solely on age, is improper when age is an element of the offense.
[Citations.]” (People v. Dancer (1996) 45 Cal.App.4th 1677, 1693-1694, disapproved on
another ground in People v. Hammon (1997) 15 Cal.4th 1117, 1123; accord, People v.
Alvarado (2001) 87 Cal.App.4th 178, 195.) “However, ‘particular vulnerability’ is
determined in light of the ‘total milieu in which the commission of the crime
occurred .…’ [Citation.]” (People v. Dancer, supra, 45 Cal.App.4th at p. 1694; accord,
People v. Ramos (1980) 106 Cal.App.3d 591, 607, disapproved on another ground in
Scott, supra, 9 Cal.4th at p. 353, fn. 16.) Danielle was a mere toddler in her mother’s
arms — the place she should have been the safest. Since she was facing the wound, her
back most likely was to defendant, whom she had no reason to fear or mistrust and as to
whom she was in close proximity, and so she had no warning anything was amiss. The
combination of circumstances supports a finding of particular vulnerability (see People v.
Alvarado, supra, 87 Cal.App.4th at p. 195; People v. Dancer, supra, 45 Cal.App.4th at
p. 1694; cf. People v. Weaver (2007) 149 Cal.App.4th 1301, 1316), which is reasonably
related to both the child abuse count and the firearm use enhancement.15
       From the foregoing, it is clear the trial court found ample valid aggravating
circumstances to justify imposition of the upper term on both the child abuse count and
the attendant firearm use enhancement. Defendant admits the court’s finding he acted
with callousness toward Saefong by fleeing the scene without rendering aid or

15    Although not mentioned by the trial court, the record also showed defendant’s
criminal conduct was of increasing seriousness. (Rule 4.421(b)(2); see, e.g., People v.
Piceno (1987) 195 Cal.App.3d 1353, 1360; People v. Kellett (1982) 134 Cal.App.3d 949,
962; People v. Ramos, supra, 106 Cal.App.3d at p. 610.)



                                            32.
summoning rescuers (rules 4.421(a)(1), 4.425(b)) “arguably” supports the imposition of a
consecutive term for involuntary manslaughter. We agree, and find nothing “arguabl[e]”
about the matter. Since this factor need not be used to justify imposition of an upper
term, it is available for the purpose of imposing a consecutive term. In addition,
imposition of a consecutive term was warranted by the existence of multiple victims.
(See, e.g., People v. Calhoun (2007) 40 Cal.4th 398, 408; People v. Gutierrez (1992) 10
Cal.App.4th 1729, 1739; People v. Leung (1992) 5 Cal.App.4th 482, 504.)
       Defendant argues for a remand for resentencing in light of what he calls
“significant” mitigating circumstances. He points to his minimal prior record, his history
of steady employment, his lack of current gang affiliation or substance abuse problems,
the fact the offenses were committed under unusual circumstances that were unlikely to
recur, and the fact he voluntarily acknowledged wrongdoing at an early stage of the
proceedings.
       A trial court is deemed to have considered all relevant criteria contained in the
sentencing rules, unless the record affirmatively reflects otherwise. (Rule 4.409; People
v. White (1981) 117 Cal.App.3d 270, 280, disapproved on another ground in Scott, supra,
9 Cal.4th at p. 353, fn. 16.) Here, a number of purportedly mitigating factors were before
the court through defendant’s statement in mitigation; if there were other factors
defendant wished the court to consider, those factors should have been included.
       “A sentencing court errs in disregarding an undisputed factor in mitigation.
[Citation.] However, many alleged factors in mitigation are disputable either because
they may not be established by the evidence or because they may not be mitigating under
the circumstances of a particular case. Where an alleged factor in mitigation is
disputable, the court may find an absence of mitigating factors and need not explain the
reason for its conclusion. [Citations.]” (In re Handa (1985) 166 Cal.App.3d 966, 973.)
Additionally, the weighing of factors in aggravation and mitigation involves a flexible
quantitative and qualitative approach (People v. Thornton (1985) 167 Cal.App.3d 72, 77),

                                            33.
and a court may properly determine that a factor’s mitigating influence is small (People
v. Lambeth (1980) 112 Cal.App.3d 495, 500; People v. Regalado (1980) 108 Cal.App.3d
531, 539) or nonexistent (People v. Salazar (1983) 144 Cal.App.3d 799, 813).
       The mere assertion of a mitigating factor does not establish that factor. (People v.
Lambeth, supra, 112 Cal.App.3d at p. 500.) It is for the sentencing court to determine
what, if any, factors in mitigation are established, and thus whether conduct was excused
or culpability reduced, based on the facts and circumstances of each case. (People v.
Regalado, supra, 108 Cal.App.3d at p. 538.) Under the circumstances in this case, we
cannot say the trial court abused its discretion in concluding there were no factors in
mitigation. (See People v. Holguin (1989) 213 Cal.App.3d 1308, 1318.)
       “Each of the aggravating factors were supported by the record. Even if we were to
assume that [some] constituted a dual use of facts and should have been excluded, the
remaining factors were more than sufficient to impose the [upper and consecutive]
term[s] .… We are confident that, under the circumstances, an order of remand for a
clarified statement of reasons [or resentencing] would be no more than an idle act.
[Citation.]” (People v. Williams (1996) 46 Cal.App.4th 1767, 1782-1783.)
B.     Presentence Credits
       At sentencing, defendant was awarded 851 days of actual presentence credits, plus
127 days of local conduct credits, for a total of 978 days. He now says that, because he
was arrested on August 8, 2009, he is entitled to one additional day of actual credit.
       Section 2900.5, subdivision (a), provides in pertinent part: “In all felony …
convictions, … when the defendant has been in custody, including, but not limited to, any
time spent in a jail … or similar residential institution, all days of custody of the
defendant … shall be credited upon his or her term of imprisonment .…” Subdivision (d)
of the statute places upon the court imposing sentence the duty “to determine the date or
dates of any admission to, and release from, custody prior to sentencing and the total
number of days to be credited pursuant to this section.”

                                              34.
       In People v. Ravaux (2006) 142 Cal.App.4th 914 (Ravaux), the court held: “[A]
defendant is not in custody within the meaning of section 2900.5 prior to being processed
into a jail or similar custodial situation as described in” subdivision (a) of the statute.
Accordingly, a defendant’s custody credits are to be calculated beginning when the
defendant was booked into jail rather than from the time of his or her arrest. (Ravaux,
supra, at p. 919.) The court examined the wording of the statute, and concluded: “The
plain language of section 2900.5 addresses only residential custody arrangements and
makes no mention of detention, seizure or arrest by the police as being the type of
custody included in the calculation of custody credits.… Arrest or detention by police
prior to booking is not mentioned anywhere in section 2900.5. It is clear from the plain
language of the statute that custody credits are to be given for time spent within a
residential detention facility, not for merely being in the custody of police.” (Id. at
pp. 919-920.)
       We agree with Ravaux. The only reasonable reading of section 2900.5,
subdivision (a) is that it is limited to time spent in custody in a jail or similar residential
institution. This is consistent with the California Supreme Court’s longstanding
pronouncements concerning the statute’s purpose. (See, e.g., People v. Riolo (1983) 33
Cal.3d 223, 228 [§ 2900.5 helps equalize actual time served in custody and reflects basic
philosophy that when a person is incarcerated, he is being punished]; In re Rojas (1979)
23 Cal.3d 152, 156 [original wording of statute provided for credit for all days defendant
spent in jail prior to sentencing; statute was subsequently extended in recognition that
defendants may be in pretrial custody in institutions other than jails for reasons other than
indigence].)
       As noted in Ravaux, granting custody credit beginning at the time of arrest does
not further the purposes for which section 2900.5 was adopted. (Ravaux, supra, 142
Cal.App.4th at p. 920.) Moreover, it would lead to absurd results. “[A] defendant would
be eligible for a day of custody credit on occasions when he was detained by the police

                                               35.
and questioned, but released without being booked into jail. In the course of an ongoing
criminal investigation a defendant may be contacted and questioned by police several
times, each time potentially putting the defendant in custody .… Because defendants are
given credit based on the number of days in custody rather than the number of 24-hour
periods, a full day would be credited regardless of the actual length of the detention.
[Citation.] Further ambiguity would be created by virtue of the court having to review in
detail the circumstances surrounding the detention of a defendant, possibly on more than
one occasion and for varying reasons, in order to determine at what time or times he was
placed into custody and whether that custody was related to the offense for which he was
convicted. By contrast, the booking of a suspect into jail represents a bright line for trial
courts to begin counting credits.” (Id. at p. 921.)
       Defendant acknowledges Ravaux, but says the record clearly shows he was
arrested on August 8, 2009, and fails to establish he was not booked until after midnight.
To the contrary, the RPO shows defendant was in custody of the Tulare County Jail
beginning August 9, 2009. That he may have been in police custody prior to midnight,
while coincidentally being questioned at the jail, does not change section 2900.5’s
applicability. The trial court properly awarded credit calculated from August 9, 2009.
(See People v. Macklem (2007) 149 Cal.App.4th 674, 702.)16
C.     Clerical Error in Abstract of Judgment
       The abstract of judgment originally showed defendant was convicted, in count 1,
of involuntary manslaughter, but it incorrectly specified subdivision (a) of section 192,
rather than subdivision (b) of that statute. The trial court issued an amended abstract

16     We note that defense counsel, in informing the trial court of defendant’s updated
credits during sentencing, also calculated from the August 9, 2009, date. If defendant
now believes that date was incorrect and he was in fact booked into jail on August 8,
2009, he is free to seek relief in the trial court. (See People v. Acosta (1996) 48
Cal.App.4th 411, 428, fn. 8.)



                                             36.
correcting that error, but the amended abstract still erroneously had an “X” in the box
labeled “CONSECUTIVE 1/3 VIOLENT.” The parties agree the box that should be
checked is the one labeled “CONSECUTIVE 1/3 NON-VIOLENT.” (See § 667.5,
subd. (c)(1), (8).) We will direct the trial court to correct this clerical error. (See People
v. Mitchell (2001) 26 Cal.4th 181, 185; In re Candelario (1970) 3 Cal.3d 702, 705.)
D.     Description of Count 2 as “Child Abuse”
       Last, defendant seeks to have the record reflect that he was convicted in count 2 of
child endangerment, rather than child abuse.17 He says child endangerment is a “more
accurate and fair description of the offense,” because his conviction clearly rested on
indirect or passive conduct.
       While we agree defendant did not directly abuse Danielle, we decline to order any
change. Defendant was charged with, convicted of, and sentenced for “child abuse.” We
do not believe the description of the offense as “child abuse” is erroneous. In People v.
Sargent, supra, 19 Cal.4th 1206, the California Supreme Court observed that the statute
could be violated by “‘both active and passive conduct, i.e., child abuse by direct assault
and child endangering by extreme neglect.’ [Citation.]” (Id. at pp. 1215-1216, italics
added.) In the very next paragraph, however, the high court referred to the latter form as
“indirect abuse or child endangerment.” (Id. at p. 1216, italics added.) A concurring
opinion in the same case referred to all branches of the statute as proscribing “felony
child abuse.” (Id. at pp. 1225, 1226, italics added (conc. opn. of Mosk, J.).) By contrast,
the appellate court in People v. Felton (2004) 122 Cal.App.4th 260, 269 termed a
violation of the statute in general “felony child endangerment.” (Italics added.) Thus,



17     In his opening brief, defendant asks us to modify the judgment accordingly. In his
reply brief, although the heading of his argument still says the judgment should be
modified, he says he is only requesting correction of a clerical entry on the abstract of
judgment.



                                              37.
while it would have been correct to describe count 2 as “child endangerment” in the
present case, it was not incorrect to describe it as “child abuse.”
       Defendant points to no disabilities he currently suffers, or is likely to suffer in the
future, as a result of the offense being so described. He speculates that he might be
subjected to unjust penal consequences in the future, because a certified abstract of
judgment is generally admissible to prove the nature of an offense when a prior
conviction is charged. (People v. Delgado (2008) 43 Cal.4th 1059, 1066.) Perhaps, he
posits, although neither child abuse nor child endangerment is presently listed as a
“‘violent’” felony under section 667.5, subdivision (c) or a “‘serious’” felony under
section 1192.7, subdivision (c), those statutes could be amended in the future to provide
such designations for “child abuse” but not “child endangerment.”
       In People v. Delgado, supra, 43 Cal.4th at page 1066, the California Supreme
Court explained:

              “A common means of proving the fact and nature of a prior
       conviction is to introduce certified documents from the record of the prior
       court proceeding and commitment to prison, including the abstract of
       judgment describing the prior offense. [Citations.] [¶] … [¶]

               “Thus, if the prosecutor presents, by such records, prima facie
       evidence of a prior conviction that satisfies the elements of the recidivist
       enhancement at issue, and if there is no contrary evidence, the fact finder,
       utilizing the official duty presumption, may determine that a qualifying
       conviction occurred. [Citations.]

              “However, if the prior conviction was for an offense that can be
       committed in multiple ways, and the record of the conviction does not
       disclose how the offense was committed, a court must presume the
       conviction was for the least serious form of the offense. [Citations.] In
       such a case, if the statute under which the prior conviction occurred could
       be violated in a way that does not qualify for the alleged enhancement, the
       evidence is thus insufficient, and the People have failed in their burden.
       [Citations.]” (Italics added.)




                                             38.
       It would thus seem defendant will be adequately protected should the
consequences he hypothesizes ever come about. No doubt he will be able to avail
himself of other remedies as well, to ensure he is subject in the future only to those
consequences that are based on his true circumstances.
       There being no error, there is nothing to correct.
                                      DISPOSITION
       The judgment is affirmed. The trial court is directed to cause to be prepared an
amended abstract of judgment, showing count 1 (involuntary manslaughter) as
“CONSECUTIVE 1/3 NON-VIOLENT,” and to forward a certified copy of same to the
appropriate authorities.

                                                                 _____________________
                                                                            DETJEN, J.
WE CONCUR:


 _____________________
 GOMES, Acting P.J.


 _____________________
 PEÑA, J.




                                             39.
