Filed 2/24/15 P. v. Delacruz CA2/4
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR




THE PEOPLE,                                                          B251463
                                                                     (Los Angeles County
         Plaintiff and Respondent,                                   Super. Ct. No. PA068137)

         v.

CORENE DELACRUZ,

         Defendant and Appellant.


              APPEAL from a judgment of the Superior Court of Los Angeles County,
    Harvey Giss, Judge. Affirmed as modified.

              Alex Coolman, under appointment by the Court of Appeal, for Defendant
    and Appellant.

              Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant
    Attorney General, James William Bilderback II and Brendan Sullivan, Deputy
    Attorneys General, for Plaintiff and Respondent.
      Appellant Corene Delacruz was convicted of assault with a firearm and other
offenses arising out of a shooting incident involving James Calderon. She
contends the judgment must be reversed due to instructional and sentencing error.
We reject those challenges to the judgment, with the exception of her contention
that the trial court miscalculated her presentence custody credits. Accordingly, we
modify the judgment to remedy that error, and affirm the judgment so modified.


                 RELEVANT PROCEDURAL BACKGROUND
      On November 29, 2010, an information was filed, charging appellant in
count 1 with first degree burglary (Pen. Code, § 459); in count 2, with the
attempted willful, deliberate, and premeditated murder of James Calderon (Pen.
Code, §§ 187, subd. (a), 664); in count 3, with making criminal threats (Pen. Code,
§ 422); in count 4, with carrying an unregistered loaded handgun (Pen. Code
§ 12031, subd. (a)(1)); in count 5, with assault with a firearm on Calderon (Pen.
Code, § 245, subd. (a)(2)); and in count 6, with the false imprisonment of Calderon
by violence (Pen. Code, § 236).1 Accompanying counts 1, 2, 3, 5, and 6 were gun
use allegations (§§ 12022.5, subd. (a), 12022.53, subds. (b), (c), (d)); in addition,
accompanying counts 2, 5, and 6 were allegations that appellant had inflicted great
bodily injury upon Calderon (§§ 12022.53, subd. (d), 12022.7, subd. (e)).
Appellant pleaded not guilty and denied the special allegations.
      A jury found appellant not guilty of attempted murder, and guilty of all the
remaining charged offenses. In addition, the jury found true the special allegations
regarding the latter charges. The trial court sentenced appellant to a cumulative
term of 22 years and eight months, comprising the six-year upper term for burglary
(count 1) and enhancements totaling 15 years for that offense (§§ 12022.5, subd.




                                           2
(a), 12022.7, subd. (e)), plus consecutive terms of eight months and one year,
respectively, for carrying an unregistered loaded handgun (count 4) and assault
with a firearm (count 5). Sentences regarding the remaining offenses were
imposed and stayed (§ 654).


                                         FACTS
      A. Prosecution Evidence
      In 1999, James Calderon and appellant began what Calderon characterized
as an “[o]n and off” relationship that lasted approximately 11 years, during which
they sometimes lived together. In June 2010, Calderon ended the relationship.
According to Calderon, after that break up, appellant repeatedly called and texted
him in what he regarded as a harassing manner, and sometimes appeared uninvited
at his residence. In early July 2010, he installed a surveillance camera with an
audio and video recording system in his house.
      Matthew Villa testified that in June 2010, appellant asked to borrow his gun
in order to go shooting with friends. According to Villa, when he loaned the gun
to appellant, the magazine clip had rounds in it but was detached from the gun, and
the gun itself had no bullets in its chamber. Upon loaning appellant the gun, Villa
instructed her regarding the safe use of the weapon, and told her never to point a
loaded gun at a person.
      Calderon testified that on July 4, 2010, at approximately 11:30 a.m., he was
alone in his home when appellant appeared at his door. After a brief conversation,
appellant went to her car, and Calderon closed the front door. Carrying a blanket
that belonged to Calderon’s godmother, appellant returned to Calderon’s front
door, and rang the door bell. When Calderon opened the door and asked why

1     All further statutory citations are to the Penal Code.



                                             3
appellant was there, she rushed toward him. Calderon heard a loud noise, fell
backward, and discovered wounds on his body near his stomach and hip.
       Appellant entered the house, locked the door, and pointed a gun at Calderon.
Appellant said, “I came here to kill myself and I came here to kill you and I want
your family to feel the pain that I’m feeling.” Calderon got to his feet, saw that his
wounds were bleeding, and said to appellant, “You shot me.” Appellant then
asked where Calderon’s cell phone was located. When Calderon replied that it was
in his room, she closed the door to that room, while continuing to aim her gun at
him. Calderon begged her to stop, told her that he did not want to die, and asked
her to make a 911 call. She did not do so. Later, after experiencing intense pain
and difficulties in breathing, Calderon said, “Look at me. I’m gonna die. . . . Help
me, please. It’s still not too late.” Appellant asked, “You promise if I leave you’re
gonna tell them it wasn’t me, it was someone else[?]” Although Calderon agreed,
appellant “got an angry look on her face,” and replied, “No, I don’t trust you.”
       Calderon then became desperate. When appellant briefly looked away from
him, he jumped toward her, punched her, and grabbed for the gun. During their
struggle over the gun, its bullet magazine came loose. Calderon seized the
magazine and pocketed it. Appellant, who retained the gun, made an apparent
effort to shoot Calderon, who thought that the gun might hold a bullet in its
chamber. When appellant tried to aim the gun at Calderon, he unlocked the front
door to his residence and pushed her outside, where their struggle continued.
Calderon shoved appellant into some bushes, and fled back into his house. After
locking the door, he called 911. Later, he underwent major surgery to mend his
injuries.
       The surveillance system inside Calderon’s house recorded the encounter
between appellant and Calderon. Although the surveillance camera viewed the
exterior walkway to the residence’s front entrance, the audio system captured

                                          4
appellant’s and Calderon’s remarks inside the residence. Video and audio
recordings from the surveillance system were played for the jury.
      Gracie Torres, a coworker of appellant’s, testified that on July 4, 2010,
appellant arrived at her house in an apparent state of shock, with blood on her
hands and nose. Appellant told Torres she had gone to Calderon’s house to return
a comforter and shoot herself. After Calderon called her crazy and said, “Go
ahead. Shoot yourself, bitch,” a fist fight began. When he punched her, the gun
she held “went off.” Torres related the incident to her brother, who lived with her
and was employed as a Los Angeles Police Department sergeant.
      Torres’s brother examined appellant’s car and found a gun. Investigating
officers soon arrived at Torres’s house, where they arrested appellant and took
possession of the gun, which was determined to belong to Villa.


      B. Defense Evidence
      Appellant testified as follows: After she and Calderon broke up, she
borrowed Villa’s gun, and falsely told him she intended to go shooting with
friends. According to appellant, she was contemplating suicide.
      On July 4, 2010, prior to visiting Calderon, she held the gun to her head, but
was unable to pull the trigger. At approximately 11:15 a.m., she phoned Calderon
from her home to tell him she intended to visit him. She planned to return a
blanket to Calderon, and also contemplated suicide by shooting herself with Villa’s
gun. Appellant denied intending to shoot Calderon. She testified she loved
Calderon, and hoped they would have a conversation that would result in their
reconciliation. According to appellant, she took Villa’s gun with her to show
Calderon she was serious about hurting herself.
      After appellant arrived at Calderon’s residence, he opened the front door and
asked why she was there. When she said she wanted to return the blanket, he

                                         5
cursed at her and shut the door. She went to her car, grabbed the blanket and the
gun, and walked back to Calderon’s front door, carrying the blanket in her left
hand and the gun in her right hand. According to appellant, her finger was behind
-- not on -- the gun’s trigger.
      After appellant rang the doorbell, Calderon cursed at her again and opened
the door. When appellant stated she wanted to return the blanket, the pair began
arguing. During the argument, Calderon said, “You’re on camera,” stepped
outside the house, and looked to appellant’s right. Calderon then grabbed
appellant’s shirt and pulled her into the residence, causing both appellant and
Calderon to fall. There was a loud bang, and Calderon screamed, “You shot me.
You shot me.” According to appellant, the shooting was “an accident.”
      Following the gunshot, appellant was shocked and hysterical. According to
appellant, although there was a hole in Calderon’s shirt, she saw no blood, and he
“was walking fine.” He said, “It’s okay. The bullet came out.” Appellant
repeatedly told Calderon she never meant to hurt him, and that she had come to his
residence to kill herself.
      As appellant and Calderon talked, he began to “manipulate[] her.” While
walking closer to her, he offered to tell the police that his injuries were the result of
a robbery not involving her. Appellant concluded that Calderon was “cornering
[her] in,” that “everything [had] changed,” and that she “need[ed] to save
[her]self.” She told Calderon she did not trust him, and in order to scare him away,
she threatened to shoot him again, and at one point held the gun to her own head.
Appellant denied intending to shoot Calderon, and denied pointing the gun at him.
      When appellant realized she could flee through the open front door, she felt
safe enough to lower the gun to her side. Calderon then bit her shoulder, punched
her repeatedly with his fists, and tried to seize the gun. During the ensuing
struggle, appellant was fearful that Calderon would use the gun to shoot her.

                                           6
When appellant managed to open the front door, Calderon pushed her outside and
into some bushes.
                                   DISCUSSION
      A. Instructions Regarding the Accident Defense
      Appellant contends the trial court, in instructing the jury regarding the
defense of accident, limited the defense to the charges of burglary (count 1) and
attempted murder (count 2), and improperly failed to inform the jury that the
defense was also applicable to assault with a firearm (count 5). As explained
below, she has failed to establish reversible error.


             1. Governing Principles
      The defense of accident ordinarily is raised to rebut the mental element of a
crime. (People v. Anderson (2011) 51 Cal.4th 989, 996 (Anderson); People v.
Lara (1996) 44 Cal.App.4th 102, 110 [“The accident defense amounts to a claim
that the defendant acted without forming the mental state necessary to make his or
her actions a crime.”].) Section 26 “states the statutory defense: ‘All persons are
capable of committing crimes except those belonging to the following classes: [¶]
. . . [¶] Five -- Persons who committed the act or made the omission charged
through misfortune or by accident, when it appears that there was no evil design,
intention, or culpable negligence.’ The defense appears in CALCRIM No. 3404,
which explains a defendant is not guilty of a charged crime if he or she acted
‘without the intent required for that crime, but acted instead accidentally.’”
(Anderson, supra, 51 Cal.4th at p. 996.)
      The application of the defense to assault with a firearm thus hinges on the
state of mind required for that crime. Assault with a firearm is a general intent
crime. (People v. Williams (2001) 26 Cal.4th 779, 782-784 (Williams).) The
nature of the requisite general intent arises from the relationship between the

                                           7
offenses of assault and battery. (People v. Colantuono (1994) 7 Cal.4th 206, 214.)
“Assault . . . lies on a definitional . . . continuum of conduct that describes its
essential relation to battery: An assault is an incipient or inchoate battery; a battery
is a consummated assault. . . . The criminal law . . . independently sanctions the
initiation of force or violence -- the ‘assault’ -- because it directly and immediately
culminates in injury -- the ‘battery.’ [Citation.] Based on this apposition, each
constitutes a discrete offense . . . . [Citations.]” (Id. at pp. 216 -217.)
        The relationship between assault and battery determines the precise mental
state required for assault. (Williams, supra, 26 Cal.4th at p. 785.) Our Supreme
Court has explained: “[A] defendant is only guilty of assault if he intends to
commit an act ‘which would be indictable [as a battery], if done, either from its
own character or that of its natural and probable consequences.’ [Citation.]”
Logically, a defendant cannot have such an intent unless he actually knows those
facts sufficient to establish that his act by its nature will probably and directly
result in physical force being applied to another, i.e., a battery.” (Id. at pp. 787-
788.)
        Accordingly, to establish the requisite mental state for assault, the
prosecution need only show that the defendant engaged in “an intentional act” and
had “actual knowledge of those facts sufficient to establish that the act by its nature
will probably and directly result in the application of physical force against
another.” (Williams, supra, 26 Cal.4th at p. 790.) However, because assault
requires neither a specific intent to injure nor an subjective awareness of the risk
that a battery might occur, the existence of the requisite mental state does not hinge
on the defendant’s own subjective assessment of the likelihood of a battery. (Id. at
pp. 782-783, 788.) “For example, a defendant who honestly believes that his act
was not likely to result in a battery is still guilty of assault if a reasonable person,
viewing the facts known to defendant, would find that the act would directly,

                                            8
naturally and probably result in a battery.” (Id. at p. 788 & fn. 3.) Nonetheless,
“mere recklessness or criminal negligence is still not enough [citation][] because a
jury cannot find a defendant guilty of assault based on facts he should have known
but did not know . . . .” (Williams, supra, 26 Cal.4th at p. 788, fn. omitted.)


             2. Underlying Proceedings
      At trial, appellant testified that although she carried a gun to Calderon’s
front door, her intent was not to injure him, but to demonstrate that she was serious
about hurting herself. She further testified that the gun went off only because
Calderon grabbed her, causing them both to fall. Appellant acknowledged that
after Calderon was injured, she threatened to shoot him again, but she denied that
she intended to fire the gun, and maintained that she never pointed the gun at him.
      During a break in appellant’s testimony, the trial court stated to her counsel:
“I do want to say this now. Based on the testimony of your client, it seems that
this case would generate . . . an accident instruction . . . .” After counsel replied,
“Yes,” the court stated that the instruction would be discussed later. Following the
close of the presentation of evidence, the court proposed a packet of jury
instructions that included a modified version of CALCRIM No. 3404 applicable to
the charges of burglary and attempted murder. Counsel neither objected nor
requested that the instruction also encompass assault with a firearm.
      Regarding assault with a firearm, the jury was instructed with CALCRIM
No. 250, which stated that the offense “require[d] proof of the union, or joint
operation, of act and wrongful intent, that “[a] person acts with wrongful intent
when he or she intentionally does a prohibited act . . . .” Furthermore, the jury was
instructed with CALCRIM No. 875, which stated that appellant committed the
offense only if she willfully “did an act with a . . . firearm that by its nature would
directly and probably result in the application of force to a person,” while “aware

                                           9
of facts that would lead a reasonable person to realize that [her] act by its nature
would directly and probably result in the application of force to someone.”
CALCRIM No. 875 also stated: “Someone commits an act willfully when he or
she does it willingly or on purpose. It is not required that he or she intend to break
the law, hurt someone else, or gain any advantage.”
      In closing arguments, defense counsel maintained that appellant was not
guilty of the charges against her because the fall that caused the gun to fire was
accidental. He asserted; “[T]he truth is that she did not intentionally shoot that
gun. The truth is that this was a horrible, horrible, horrible incident, but it was an
accident that he got shot.”


             3. Analysis
      Appellant contends the trial court erred in instructing the jury with a
modified version of CALCRIM No. 3404 limited to burglary and attempted
murder, arguing that the instruction effectively informed the jury that the defense
of accident was inapplicable to assault with a firearm. We conclude that appellant
has forfeited her contention for want of a request that the instruction encompass
assault with a firearm, and that even were we to consider it, she has shown no
prejudicial error.
      Generally, when the jury otherwise receives “complete and accurate”
instructions regarding the mental element required for a crime, “the obligation of
the trial court . . . to instruct on accident extend[s] no further than to provide an
appropriate pinpoint instruction upon request by the defense.” (Anderson, supra,
51 Cal.4th at p. 998, italics added, fn. omitted.) Furthermore, if the trial court has
no duty to instruct sua sponte regarding a matter, a defendant who fails to request
such an instruction may not complain on appeal that “‘an instruction correct in law



                                           10
and responsive to the evidence was too general or incomplete.’” (People v. Valdez
(2004) 32 Cal.4th 73, 113, quoting People v. Lang (1989) 49 Cal.3d 991, 1024.)
      Under these principles, appellant’s failure to request an instruction
specifically directed at the charge of assault with a firearm forfeited the contention
she raises on appeal. The crux of that contention is that CALCRIM No. 3404, as
given, was “correct in law and responsive to the evidence” with respect to the
charges of burglary and attempted murder, but was incomplete, that is, did not
encompass the charge of assault with a firearm. However, because the jury
received “complete and accurate” instructions regarding the mental state required
for assault with a firearm, appellant was obliged to request a pinpoint instruction
regarding the application of the defense to that crime. (Anderson, supra, 51
Cal.4th at pp. 996-998.) Accordingly, she has not preserved her contention of error
on appeal.
      Furthermore, we would conclude that appellant has shown no prejudicial
error were we to address her contention. Generally, the failure to give a requested
pinpoint instruction on a defense theory is reviewed for prejudice in light of the
test stated in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Earp (1999)
20 Cal.4th 826, 886-887.) Under that test, an error is reversible only if “it is
reasonably probable that a result more favorable to the [defendant] would have
been reached in the absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.)
Because the accident defense is intended to rebut the mental state required for
assault with a firearm, when the trial court fails to give requested instructions on
the defense in relation to that offense, no prejudice is ordinarily demonstrated if the
jury was otherwise adequately instructed regarding the mental state required for the
offense. (People v. Sandoval (1963) 222 Cal.App.2d 348, 352-353.)
      Here, the absence of an instruction on accident cannot be regarded as
prejudicial, as the jury was adequately instructed regarding the state of mind

                                          11
required for assault, and the record otherwise discloses ample evidence of an
assault with a firearm involving no purportedly accidental conduct. Generally,
“[t]o point a loaded gun in a threatening manner at another (especially if
accompanied by threats to shoot . . . ) constitutes an assault . . . .” (People v.
Miceli (2002) 104 Cal.App.4th 256, 269.) At trial, Calderon testified that appellant
appeared at his front door, shot him, and continued to point the gun at him. He
further testified that when he asked her to make a 911 call because he feared he
was dying, she refused. According to the transcript of the audio recording and
appellant’s own testimony, rather than assisting Calderon, appellant threatened to
shoot him again. There is thus abundant evidence that appellant committed an
assault with a firearm after the purportedly accidental fall that caused Calderon’s
injuries. Accordingly, it is not reasonably likely that appellant would have secured
a more favorable outcome had the jury been instructed that the defense of accident
was applicable to assault with a firearm.
      Appellant contends the absence of a pertinent instruction was prejudicial,
arguing that because the version of CALCRIM No. 3404 given to the jury omitted
the count regarding assault with a firearm, the court “telegraphed the idea that
accident was not a defense to that count,” and thus undermined appellant’s central
defense. We disagree. Although defense counsel, in closing argument, relied on
the purportedly accidental fall to establish appellant’s lack of guilt, her culpability
for assault with a firearm did not hinge on the defense of accident. The
fundamental issue regarding appellant’s culpability for that offense was not
whether the initial fall was accidental, or whether appellant fired her gun during
the fall without the mental state required for assault with a firearm, but whether she
acted with the requisite mental state at any time, that is, whether she engaged in
any intentional conduct with knowledge of facts establishing the reasonable
likelihood of a battery. As explained above, the instructions given accurately

                                            12
informed the jury regarding that fundamental inquiry, and there was considerable
evidence that after the shooting at Calderon’s front door, appellant engaged in an
assault with a firearm.
      Appellant also contends the prosecutor misinformed the jury regarding
application of the defense of accident to appellant’s version of the incident.
During closing arguments, in discussing the charge of assault with a firearm, the
prosecutor stated: “[N]o matter what you believe in terms of [appellant’s] version
of the facts, I submit to you that she’s guilty on this one . . . .” He maintained that
according to appellant’s testimony, she “purposefully and willfully” stood at
Calderon’s front door holding a loaded handgun hidden under a blanket, with the
gun’s muzzle pointed toward the door. He further contended that appellant showed
a “clear, conscious disregard for human life,” and that “she used the gun in a
manner that made it likely that [Calderon] would be struck . . . .” The prosecutor
asserted: “[I]f you believe [appellant] intentionally fired the gun, she’s guilty of
[assault with a firearm]. If you believe she did it [by] accident, if she used the gun
in a manner that made it likely that [Calderon] would be struck, she’s still guilty.”
      In view of the language italicized above, we discern no error in the
prosecutor’s argument. As explained above (see pt. A.1., of Discussion, ante),
even when a defendant has the honest belief that she is not likely to apply force to
her victim, she may be guilty of assault “if a reasonable person, viewing the facts
known to defendant, would find that the act would directly, naturally and probably
result in a battery.” (Williams, supra, 26 Cal.4th at p. 788 & fn. 3.) The essence of
the prosecutor’s argument was that even if appellant had done “it”-- that is, fired
the gun -- by accident, she would be guilty of assault with a firearm if her prior
intentional conduct displayed a “clear, conscious disregard” of facts establishing
the likelihood of injury to Calderon. Because the argument accurately reflects the



                                           13
principles governing assault with a firearm, it was not improper. In sum, appellant
has shown no reversible instructional error.


      B. Imposition of Upper Term on Burglary and Accompanying
      Enhancements
      Appellant contends the trial court erred in imposing the upper term on the
burglary count and the accompanying enhancements. She argues that the court
improperly disregarded evidence that she had no prior criminal record and
committed her crimes while suffering from suicidal depression. As explained
below, we disagree.


             1. Governing Principles
      When a sentence of imprisonment is imposed, the trial court has discretion
to select the middle, upper or lower term on the basis of circumstances in
aggravation or mitigation. (Cal. Rules of Court, rule 4.420(b).) Generally, “[a]
single factor in aggravation will support imposition of an upper term. [Citation.]”
(People v. Cruz (1995) 38 Cal.App.4th 427, 433.) We review the trial court’s
findings concerning aggravating and mitigating factors for the presence of
substantial evidence (People v. Gragg (1989) 216 Cal.App.3d 32, 46), and the trial
court’s balancing of aggravating and mitigating factors for abuse of discretion
(People v. Hetherington (1984) 154 Cal.App.3d 1132, 1140-1141).


             2. Underlying Proceedings
      In a report dated December 21, 2011, psychologist Nancy Kaser-Boyd
provided defense counsel with the results of an evaluation of appellant she had
performed after the inception of the underlying proceedings. Kaser-Boyd opined
that at the time of the alleged crimes, appellant was suffering from a “[m]ajor

                                         14
[d]epressive [e]pisode” precipitated by the breakup of her relationship with
Calderon. According to Kaser-Boyd, as appellant “display[ed] the effects of
intimate partner battering,” her plan to commit suicide in front of Calderon was not
“unusual.”
      Shortly before the commencement of trial, the court and counsel discussed
Kaser-Boyd’s report. The court stated that it had read the report, and asked
defense counsel to describe his purposed uses of the report, including whether
counsel intended to call Kaser-Boyd “for . . . sentencing purposes if there is a
conviction[.]” Defense counsel stated that the report raised “several issues,” and
that he did not contemplate calling Kaser-Boyd as an expert witness at trial unless
appellant herself testified.
      Appellant testified that during her relationship with Calderon, they both said
“hurtful things” to each other. At various times, Calderon called her a psychopath,
moron, bitch, and whore; in addition, he described her as fat. Following her
breakup with Calderon, she contemplated suicide. According to appellant, before
the underlying incident, she sought therapy from Dr. Peter Adler, and discussed her
thoughts of suicide with him. In describing her mental state immediately prior to
the shooting, she stated: “I wasn’t in the right state of mind. I was so confused. I
was depressed. I was going through so many mixed emotions.” Following
appellant’s testimony, defense counsel did not call Kaser-Boyd as a witness.
      After the jury returned its verdicts, the prosecution submitted a sentencing
memorandum requesting that the court select the burglary conviction as the
principal count, and impose the upper term on that conviction and the
accompanying enhancements. The prosecution maintained that there were several
aggravating circumstances, namely, that the crime displayed planning and great
violence (Cal. Rules of Court, rules 4.421(a)(1) & (a)(8)), that appellant was armed
(Cal. Rules of Court, rule 4.421(a)(2)), and that the victim was particularly

                                         15
vulnerable (Cal. Rules of Court, rule 4.421(a)(3)). The prosecutor further argued
that appellant’s lack of a criminal record constituted the sole mitigating factor (Cal.
Rules of Court, rule 4.423(b)(1)).
       Appellant’s response to the prosecution’s sentencing memorandum asked
the court to select the burglary conviction as the principal count, impose the middle
term on that conviction, and impose middle or low terms on the related
enhancements. Appellant argued there were two mitigating factors: that she had
no criminal record, and that she had suffered abuse from Calderon while they were
intimate cohabitants (Cal. Rules of Court, rule 4.423(a)(9)). Appellant’s response
further stated that Kaser-Boyd’s December 21, 2011 report was “incorporated
herein.”
       At the sentencing hearing, after describing the trial evidence supporting the
jury’s verdicts, the court stated that its tentative ruling was to impose the upper
term on the burglary and its accompanying enhancements. In summarizing the
trial evidence, the court noted: “[Appellant] and [Calderon] had a long term
relationship. [¶] [Appellant] was of the opinion that [Calderon] mistreated her
during that time frame.”2 Furthermore, in discussing appellant’s acquittal on the
charge of attempted murder, the court concluded the jury must have decided that
the shooting was accidental, and remarked: “Frankly[,] I thought the jury was
extremely charitable in buying her explanation of what happened at the door.”
       Although the court accepted appellant’s account of the shooting because
“that apparently is what the jury believed,” the court otherwise rejected appellant’s
testimony regarding the remaining portions of the underlying incident. Pointing to

2       We recognize that the trial court actually stated: “The victim was of the opinion
that the defendant mistreated her during that time frame.” Viewed in context, however,
the statement reasonably reflects only a slip of the tongue regarding the identities of the
victim and defendant.


                                             16
the transcript of the audio recording from Calderon’s surveillance system, the court
stated: “I think anyone’s opinion after reading this transcript and knowing what
transpired is that this is a gruesome, bloodcurdling conversation between the
shooting victim and a vengeful, narcissistic, self-centered defendant who callously
refuses to get help and threatened to shoot him again and again in the head, this
time out of fear of him telling the police what happened.”
          The court thus found the aggravating circumstances identified by the
prosecution. In discussing whether the crime showed planning, the court
remarked: “[Appellant] has no record, but . . . she made it very clear from her
testimony [that] she borrowed a gun from someone she knew . . . , and she brought
that gun to this incident.” The court further stated: “[C]ircumstances in
mitigation, under [California Rules of Court, rule] 4.423[,] I found none
whatsoever.”
          In response to the court’s tentative ruling, defense counsel stated that he
offered Kaser-Boyd’s report to support the existence of a mitigating factor,
namely, that appellant had suffered repeated abuse from Calderon while they were
cohabitants. The following colloquy then occurred:
          “The Court: There was no proof. Nobody ever put on any proof to that
effect.
          “[Defense Counsel]: I understand.
          “The Court: I read the doctor’s report. You wanted me to read it before the
trial began. . . . [¶] I read it for a different reason . . . . I read it for purposes of
making a determination as to how I should rule if you tried to get that into
evidence, but there was no evidence presented to the jury -- [¶] . . . [¶] . . . .
          “[Defense Counsel]: But I am using it simply to enlighten the court and to
expand the record in the sentencing that she had a long history of depression
. . . . [¶] She had said goodbye to her family. She was going to kill herself. [¶]

                                              17
She was in the throes of a huge depression and despair; and I’m asking the court to
look . . . [at] sentencing [in] that context[. T]his did not happen in a vacuum; and
yes, it was a horrible incident; and yes, the victim almost died; but it was
situational and this is a woman who had never been in trouble before . . . . [¶]
. . . [¶] I know the court feels that maybe the jury was in error on the attempted
murder, but --
      “The Court: I’m not saying that. I’m saying they gave her a break. It could
be construed that the gun went off accidentally at the threshold of the door.”
      After defense counsel suggested the jury also believed that appellant
intended to kill herself at Calderon’s house, the court remarked that appellant
never, in fact, made any attempt to commit suicide throughout the incident, even
though that “was her whole motive allegedly.” In response, defense counsel
argued that appellant never shot Calderon again after the initial shooting. The
court replied: “She didn’t have to. His life was slowly ebbing away . . . .” The
court further observed: “[Appellant] didn’t want him calling the police because he
was going to tell on her. [¶] . . . [B]ecause . . . she’s a narciss[ist] she could care
less about him. She was concerned with number one.”
      Shortly afterward, the court imposed sentence in accordance with its
tentative ruling.


             3. Analysis
      Pointing to the court’s remark, “[C]ircumstances in mitigation, . . . I found
none whatsoever,” appellant contends the court abused its discretion in imposing
sentence. She argues there was undisputed evidence that she had no criminal
record (Cal. Rules of Court, rule 4.423(b)(1)). In addition, she argues there was
considerable evidence -- including Kaser-Boyd’s report -- that she “was suffering
from a mental . . . condition that significantly reduced culpability for the crime”

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(Cal. Rules of Court, rule 4.423(b)(2)), namely, a suicidal depression, and that she
had suffered repeated abuse from Calderon (Cal. Rules of Court, rule 4.423(a)(9)).3
As explained below, we discern no error.
       Generally, the trial court, in determining the appropriate term for a crime,
“need not state reasons for minimizing or disregarding circumstances in mitigation
. . . .” (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) The court “will be
deemed to have been considered [the sentencing criteria stated in the rules] unless
the record affirmatively reflects otherwise.” (Cal. Rules of Court, rule 4.409.)
Moreover, the court’s remarks must be interpreted in context. (See People v.
Sanders (1995 ) 11 Cal.4th 475, 566; People v. Melton (1988) 44 Cal.3d 713, 770-
771.) Thus, in Melton, a death penalty case, the defendant argued that the trial
court’s remark that it found no mitigating circumstances established that the court
misunderstood its duty to consider all mitigating evidence. (44 Cal.3d at pp. 770-
771.) Our Supreme Court concluded that the remark conveyed the trial court’s
conclusion that the aggravating considerations outweighed all mitigating
considerations, as the trial court’s other remarks reflected a correct understanding
of its duties. (Ibid.)
       We reach a similar conclusion here. The record discloses that the court
examined the sentencing memorandum and response, assessed the evidence in the
record, and found the aggravating circumstances identified by the prosecution. In
so doing, the court expressly noted that appellant lacked a criminal record.



3      Aside from Kaser-Boyd’s report, appellant points to her own trial testimony, as
described above (see pt. B.2., of Discussion, ante), as well as testimony from Torres.
According to Torres, after appellant and Calderon broke up, appellant said she wanted to
commit suicide. Torres also stated that Calderon left telephone messages for appellant
containing abusive language.



                                           19
       The record further discloses that the court, in assessing mitigating
circumstances, appears to have considered all the evidence, including Kaser-
Boyd’s report. In summarizing the trial evidence, the court expressly noted
appellant’s claim that Calderon had acted abusively toward her. Although the
court remarked that “no proof” of Kaser-Boyd’s opinions had been admitted at
trial, it stated that it had read the report; furthermore, when defense counsel
explained that he relied on the report “to expand the record in the sentencing [to
show] that [appellant] had a long history of depression,” the court did not rule that
the report was inadmissible.4 Rather, the court rejected defense counsel’s claim
that appellant’s depression arising from her relationship with Calderon constituted
a mitigating factor. As the court observed, appellant never, in fact, tried to kill
herself, and she otherwise engaged in conduct inconsistent with a plan to commit
suicide; she told Calderon she was afraid he would report her conduct to the police,
demonstrating that she was looking out for herself as “number one.”
       The record thus establishes that the court imposed high terms on the
burglary count and its accompanying enhancements in light of all the evidence,

4      Even had the court excluded the report, we would find no error. Under rule
4.420(b) of the California Rules of Court, aggravating and mitigating circumstances are
properly based only on “reports . . . properly received.” When the court excludes
evidence on its own motion, we will affirm the ruling on any proper ground established
by the record. (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 392,
pp. 483-484.)
        Generally, in expressing an opinion, an expert is permitted to rely on inadmissible
information, provided that the information meets “‘a threshold requirement of
reliability.’” (People v. Nelson (2012) 209 Cal.App.4th 698, 707-711, quoting People v.
Dodd (2005) 133 Cal.App.4th 1564, 1569.) Nonetheless, an expert “may not in the guise
of stating reasons for an opinion bring before [the factfinder] incompetent hearsay
evidence.” (People v. Price (1991) 1 Cal.4th 324, 416.) Accordingly, the report was
excludable for want of a threshold showing of reliability, as Kaser-Boyd’s opinions relied
in large measure on a hearsay account from appellant of events during her relationship
with Calderon that appellant did not address during her testimony at trial.


                                            20
including Kaser-Boyd’s report. Furthermore, because the court acknowledged that
appellant had no prior criminal record, its statement that it found no mitigating
circumstances cannot reasonably be understood to deny the existence of all such
circumstances. Viewed in context, the remark appears intended to convey the
court’s conclusion that the aggravating considerations outweighed any potential
mitigating considerations. As the record contains evidence sufficient to support
that conclusion, appellant’s contention fails.


      C. Custody Credits
      Appellant contends the trial court miscalculated her presentence custody
credits. The trial court awarded her custody credits totaling 1148 days. She argues
that she is entitled to credit for an additional two days of actual custody.
Respondent agrees. We conclude that appellant’s custody credits must be
corrected to reflect custody credits totaling 1150 days.




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                                  DISPOSITION
      The judgment is modified to reflect that appellant is entitled to custody
credits totaling 1150 days. The trial court is directed to correct the sentencing
minute order to reflect the modification stated above, to prepare an amended
abstract of judgment reflecting that modification, and to forward the amended
abstract to the Department of Corrections and Rehabilitation. In all other respects,
the judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               MANELLA, J.


We concur:




EPSTEIN, P. J.



COLLINS, J.




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