Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County, Stephen H. Ashworth, Judge., Super. Ct. No. FVI022474
IRION, J.
A jury convicted Michael Alfred Fanelli of attempted voluntary manslaughter (Pen. Code, §§ 664/192, subd. (a)) and assault with a firearm (§ 245, subd. (a)(2)). The jury also found that in the commission of the crime, Fanelli used a firearm (§ 12022.5, subd. (a)) and personally caused great bodily injury to the victim (§ 12022.7, subd. (a)). Fanelli also admitted a prior conviction for assault with a firearm. The trial court sentenced Fanelli to 30 years in prison.
All statutory references are to the Penal Code unless otherwise indicated.
Fanelli appeals, contending that both his conviction and sentence must be reversed. He contends that his conviction must be reversed because the trial court improperly: (i) permitted the prosecution to introduce allegedly involuntary statements he made after being pepper sprayed by police; (ii) declined to impose any discovery sanction for the prosecution's failure to timely disclose that particles consistent with the use of a firearm were located on his hands; and (iii) permitted him to be impeached with a prior assault with a firearm conviction. Fanelli also argues his sentence must be reversed because the court imposed upper term sentences in violation of his constitutional rights under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) and in violation of the statutory requirement that an upper term cannot be imposed based on a fact also used to impose a sentence enhancement.
As discussed below, we conclude that Fanelli's challenges to his conviction are without merit. We agree, however, that his sentence is constitutionally flawed and remand for resentencing.
FACTS
In the predawn hours of September 6, 2005, Fanelli and a friend drove to an apartment in Hesperia that Adrian Macias shared with his girlfriend, Kayla Neminski. After Neminski informed Fanelli that Adrian was not home and asked him to leave, Fanelli and his friend drove away but stated they would be back.
Adrian Macias later returned to the apartment with his friend Matthew Macias (no relation). Adrian entered the apartment while Matthew remained outside. Neminski told Adrian that Fanelli had stopped by earlier and that she had asked him to leave because he was being loud and disruptive. As Neminski was talking to Adrian, he heard a truck approaching and went back outside to see Fanelli pull up in a white pickup truck.
Throughout the opinion, we refer to Adrian and Matthew by their first names to avoid any confusion. We intend no disrespect.
When Fanelli stopped the truck and got out, Adrian, who had encountered Fanelli on three or four prior occasions, approached him and said: "Hey, Homie. The house is shut down. You guys are gonna have to go." Fanelli responded: "I'm gonna kick it anyways. I'm gonna get my home boys and come kick it." Adrian, who was unarmed, moved closer to Fanelli and told him not to come back. Fanelli then pulled out a large chrome revolver and shot Adrian in the groin area. After shooting Adrian, Fanelli started talking about "where he was from" and "stuff like that," and "prancing back and forth with the gun out"; Fanelli stated, "You're not so bad now, . . . mother fucker?" Adrian was hunched over "trying to bear the pain" when Fanelli shot him again, this time in the upper chest; Adrian dropped to the ground.
Neminski, who was in the apartment during the shooting, ran out when she heard the shots and saw Fanelli standing behind the door of his truck. Fanelli told her to get back in the house, and then drove away. Neminski came back out after Fanelli departed and saw Adrian on the ground, bleeding.
Police and paramedics soon arrived at the scene; the police were informed what had happened and given a description of Fanelli's truck. Sherriff's deputies who received the subsequent radio broadcast canvassed the area. A few minutes after hearing the call, Deputy Gomez saw a pickup truck that matched the broadcast description and began following it, activating his emergency lights. The truck, which was registered to Fanelli, slowed to a stop and the driver jumped out of the truck and fled on foot. Gomez and another deputy soon located Fanelli hiding in the bushes near a residence and arrested him.
A police crime scene investigator took swabs of Fanelli's hands to be tested for gunshot residue. Later testing of the swabs revealed that Fanelli had a particle consistent with gunshot residue on his hands.
Adrian was transported to a hospital emergency room by helicopter and treated for multiple, life-threatening gunshot wounds. Adrian testified that the bullets could not be removed from his body and that as a result of his injuries, he would have medial issues, including nerve damage, difficulty sleeping and pain for the rest of his life.
DISCUSSION
I
The Trial Court Did Not Err in Permitting the Prosecution to Introduce Statements Fanelli Made at the Arrest Scene
Fanelli contends that the trial court erred by permitting the prosecution to introduce statements he made during his arrest as evidence in its case in chief. We consider this claim after setting forth the pertinent background facts.
A. Pertinent Background
At approximately 2:00 a.m., Deputy Gomez received a radio call regarding the shooting. The call stated that the shooting suspect had fled the scene in a white Chevy-type, full-size truck, heading north. Gomez drove his patrol car into the area north of the shooting location and, after about five or 10 minutes, observed a truck matching the description. Gomez began following the truck, which then stopped; a male got out of the truck and fled, leaving the driver's side door open. The truck was about one-half to three-quarters of a mile from the scene of the shooting. Gomez communicated the license plate number of the truck to the dispatcher and was informed that the truck was registered to Fanelli, and that Fanelli's alias matched that given by the witnesses to identify the shooter.
Deputy Gomez stopped his patrol car and looked inside the truck for a gun, but found none. Gomez heard dogs barking and the sound of a chain link fence rattling. Gomez proceeded in the direction of the noise and, after about 10 or 15 minutes, located Fanelli crouched down in the bushes outside a residence. Gomez, with his weapon drawn, ordered Fanelli to get down on the ground. Fanelli refused and began arguing with Gomez, stating that this was his house and he had not done anything wrong.
At that point, Deputy Lawyer arrived to assist Gomez; Lawyer (who, like Gomez had looked inside Fanelli's car and been unable to locate any gun) drew his gun and ordered Fanelli to get on the ground. Fanelli again refused and began to walk toward Lawyer, at which point Lawyer sprayed Fanelli with pepper spray, which "didn't seem to affect [Fanelli] too much." Fanelli was very confrontational, "acting irrationally" and waving his hands around. Fanelli continued to refuse to comply with the command that he get on the ground, and Lawyer sprayed him a second time and pushed him to the ground.
While Lawyer was handcuffing Fanelli, and Gomez was looking around the area for the gun, Lawyer asked Fanelli, "Where's the gun." Fanelli responded, "That's your job; go find it."
Hearing the commotion, the homeowner of the nearby residence came outside. He informed the officers that there were children that lived at the residence and, after Fanelli was detained, began looking around on his property for the gun. The officers asked the homeowner to "go back in the house or to get back" and to "stay back."
While the officers searched for the gun, the homeowner who had previously encountered Fanelli began speaking with him in Spanish, asking Fanelli, "Where's the gun at?"; Fanelli responded, "It's not here. Don't bother looking." Gomez and Lawyer testified that they had not asked the homeowner to talk to Fanelli or to assist them in the search for the gun. No gun was found at the scene.
B. Analysis
Fanelli contends that the trial court erred in permitting the prosecution to introduce his statements to deputy Lawyer and to the homeowner as evidence in its case in chief because the statements were involuntary. We disagree.
In Miranda v. Arizona (1966) 384 U.S. 436, the federal Supreme Court ruled that to insure that any statement of a suspect in police custody is voluntary, police must advise the suspect of specified Fifth Amendment rights prior to questioning. (See People v. Smith (2007) 40 Cal.4th 483, 501.) In New York v. Quarles (1984) 467 U.S. 649 (Quarles), however, the Supreme Court crafted a narrow " 'public safety' exception" to the Miranda requirement that applies in situations like that presented in the instant case, where police officers "in the very act of apprehending a suspect, [a]re confronted with the immediate necessity of ascertaining the whereabouts of a gun" that might otherwise be "concealed" in such a manner that it poses a "danger to the public safety." (Id. at pp. 655, 657; see People v. Panah (2005) 35 Cal.4th 395, 471 [recognizing the Quarles exception].)
Fanelli recognizes that the officer's question — "Where's the gun" — "might well fall under the public safety exception to the Miranda rule." He contends, however, that the exception is inapplicable here because his statements were "coerced" and therefore "involuntary." (See People v. Neal (2003) 31 Cal.4th 63, 67 ["an involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion" is not admissible at trial]; Quarles, supra, 467 U.S. at p. 654 [noting that "we have before U.S. no claim that respondent's statements were actually compelled by police conduct which overcame his will to resist"].)
A statement must be suppressed as involuntary if it is a result of "coercive police activity" and thus not the product of " ' "a rational intellect and free will." ' " (People v. Maury (2003) 30 Cal.4th 342, 404 (Maury).) Coercive police activity " 'does not itself compel a finding that a resulting confession is involuntary' "; for a statement to be suppressed on this ground, "[t]he statement and the [coercive] inducement must be causally linked." (Id. at p. 405.) In reviewing a challenge to a trial court's determination that a statement was voluntary, "we independently examine the record, but, to the extent the facts conflict, we accept the version favorable to the People if supported by substantial evidence." (People v. Weaver (2001) 26 Cal.4th 876, 921 (Weaver).)
Fanelli contends that the involuntariness of his statements is established by the undisputed fact that he was "twice pepper sprayed in the eyes and then tackled" prior to making the statements. Fanelli is correct that this type of police conduct, were it to occur in the context of a police interrogation, certainly would support an argument that a subsequent statement was involuntary. Here, however, the coercive police conduct was not part of any interrogation and cannot be "casually linked" to Fanelli's statement. (Maury, supra, 30 Cal.4th at p. 405; cf. Colorado v. Connelly (1986) 479 U.S. 157, 164 (Connelly) ["Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law"]; People v. Whitson (1998) 17 Cal.4th 229, 249 [rejecting claim that statement was involuntary where defendant "was not worn down by improper interrogation tactics, lengthy questioning, or trickery or deceit"].)
Deputy Lawyer pepper sprayed and forced Fanelli to the ground not as part of any effort to obtain information or question him, but rather to diffuse a dangerous situation caused by Fanelli's failure to accede to the officer's lawful commands. Thus, under the facts of this case, the deputies' coercive conduct for the purpose of detaining Fanelli (as opposed to interrogating him) cannot serve as a basis for concluding that his subsequent statements were involuntary. (Weaver, supra, 26 Cal.4th at p. 921 [ruling that because "[t]he due process inquiry [regarding voluntariness] focuses on the alleged wrongful and coercive actions of the state" and "the trial court determined that neither officer engaged in wrongful conduct," the involuntariness claim failed (italics added)].) As the federal Court of Appeals for the Eighth Circuit has held on virtually identical facts, "[w]hile the police did use physical force [and] spray [the defendant] with mace, facts that would favor him in the voluntariness analysis," the subsequent statements were properly admitted because "the police were only acting in response to [his] attempt to resist arrest. This is not a case where the police beat a confession out of a defendant, but rather a situation where the police were required to use force to subdue a fighting suspect, and then, after the suspect was under control, asked him where they could find his gun." (U.S. v. Carroll (8th Cir. 2000) 207 F.3d 465, 472.) Consequently, Fanelli's statement that deputy Lawyer should find the gun because it was his job to do so was properly admitted at trial.
Based on the contention we have just rejected, Fanelli also argues that his later statement to the homeowner should also have been suppressed because it was tainted by the "primary illegality" of the allegedly coercive questioning by deputy Lawyer. As we have concluded that deputy Lawyer did not coerce Fanelli's initial statement, there is no "illegality" that would taint the subsequent statement and we therefore reject this contention as well.
To the extent that Fanelli is also arguing (as he did in the trial court) that the statement should be independently suppressed because it was obtained by the homeowner (without Miranda warnings) at the government's request, we also reject that contention because the record simply does not support the argument that the homeowner acted at the behest of the police. (See People v. Williams (1988) 44 Cal.3d 1127, 1142 [statements solicited by fellow inmate not obtained in violation of Fifth Amendment]; Connelly, supra, 479 U.S. at p. 167 ["coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' "].)
II
The Trial Court Did Not Abuse Its Discretion in Declining the Discovery Sanctions Requested by Fanelli
Fanelli contends that the trial court abused its discretion by rejecting his request for sanctions based on the prosecutor's failure to timely disclose certain findings of a criminalist. We analyze this contention after setting forth the pertinent background information.
A. Pertinent Background
A criminalist testified for the prosecution that he located a "unique gunshot residue particle" on swabs taken from Fanelli's hands shortly after his arrest. The criminalist explained that a "unique particle" is a microscopic particle that consists of three elements, barium, lead and antimony, fused together in one particle under heat and pressure. Such particles indicate contact with a firearm and are not otherwise encountered in everyday activities.
The criminalist also testified that he located six "consistent" particles on the swabs. A consistent particle is a microscopic particle consisting of any one of the three elements noted, or two in combination, but not all three. The criminalist explained that the consistent particles are not as significant as a unique particle because consistent particles can be encountered through contact with substances regularly encountered in everyday life such as paint or fabrics.
After the criminalist concluded his direct examination, Fanelli's counsel informed the court that the discovery he had received indicated only the finding of the "one unique particle" but nothing about any consistent particles. The prosecutor stated that she had not had any information regarding the consistent particles either, but that "[t]he issue came up and that was it." The court indicated that the continuous particles had minimal relevance, and the "bottom line" of the criminalist's testimony was the finding that there was "one unique particle." The other findings, the court said, "have no meaning, really, other than that those are the results." Defense counsel did not request any immediate sanctions for the asserted discovery violation, but stated that if, on cross-examination, the criminalist did not agree with the court's statement regarding the minimal relevance of consistent particles, "then we come back to this problem." Defense counsel then asked the criminalist on cross-examination, "you only found one particle [i.e., the unique particle] that you would say comes from gunshot residue; right?" The criminalist responded, "That's correct."
It was unclear from the prosecutor's response when exactly she became aware of the finding of consistent particles, although the implication of her comments was that it was sometime in the process of presenting the criminalist's testimony.
Defense counsel revisited the issue with the court the next day, arguing that despite the criminalist's answer on cross-examination, the consistent particles finding undercut the defense contention that contamination from contact with the police and police vehicles was responsible for the gunshot residue, and asserting that the prosecutor should not be able to rely on the consistent particles as evidence of gunshot residue. The court responded that the prosecutor was "not going to argue that." The defense counsel further requested that either the parties should stipulate that the consistent particles "are not important," the court should instruct the jury that the prosecutor failed to disclose the information, or the defense should be granted a continuance to "get a[n] expert here to testify about conforming particles." The court denied the request, ruling that the consistent particles were of minimal importance and the defense had received adequate advance notice of the sole significant finding of the criminalist — the presence of the one unique particle.
B. Analysis
Fanelli contends that the trial court abused its discretion by not adopting one of the recommended sanctions for the prosecutor's alleged discovery violation of failing to timely disclose the criminalist's findings regarding the consistent particles. We disagree.
A prosecutor has a statutory obligation to disclose "any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial" whenever such information is "in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies." (§ 1054.1, subd. (f).) If the prosecutor does not comply with this obligation, the trial court may take remedial action, including requiring "immediate disclosure," "delaying or prohibiting the testimony of a witness," "continuance of the matter," or "any other lawful order." (§ 1054.5, subd. (b).) In addition, "the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." (Ibid.) The trial court is granted broad discretion to choose between the wide range of available discovery sanctions, including the option of imposing no sanction, and its ultimate decision is reviewed for abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 299; People v. Lamb (2006) 136 Cal.App.4th 575, 581.)
There is no contention that the information that was not timely disclosed was exculpatory and thus we are concerned here solely with the prosecution's statutory discovery obligations, not its constitutional obligations. (See Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 53.)
While we agree that the prosecutor should have disclosed the consistent particle findings prior to bringing them out at trial, we do not believe that the trial court's failure to require a stipulation, continue the trial or instruct the jury that the prosecution had committed a discovery violation constitutes an abuse of discretion. As the trial court noted, the consistent particles were a relatively insignificant aspect of the criminalist's findings. The criminalist testified that consistent particles could result from contact with everyday items, and stated he had only "found one particle that . . . comes from gunshot residue" (i.e., the unique particle). (Italics added.) In addition, pursuant to the court's implicit order, the prosecution did not attempt to argue that the consistent particles supported the conclusion that Fanelli had handled a gun. Rather, the prosecutor argued that the criminalist had found "one unique GSR particle on the defendant's right hand," and emphasized that it was not "uncommon to only find one particle." (Italics added.) In addition, there was no suggestion of bad faith on the part of the prosecutor in failing to timely disclose the information. (See People v. Zamora (1980) 28 Cal.3d 88, 100 [sanction not required in response to discovery violation where no bad faith is shown]; People v. Cooper (1991) 53 Cal.3d 771, 811 [no sanction required for destruction of potential evidence where no bad faith shown].) Given these circumstances, while some type of sanction may have been appropriate, we cannot conclude that the trial court abused its discretion by failing to require any sanction beyond its implicit order that the prosecutor could not rely on the consistent particles to support an argument that Fanelli had fired a gun.
The Attorney General does not contend otherwise.
Fanelli also references an earlier alleged discovery violation that occurred when the prosecution failed to timely disclose Fanelli's response to a police investigator's question as to whether he was right- or left-handed, a statement the trial court excluded. While this earlier instance, like the later instance, suggests that the prosecutor should have been more diligent in eliciting discoverable evidence from the investigative officers, the statement there at issue was suppressed. Thus, there was no need for the trial court to further sanction the prosecution based on this earlier instance, and, again, given the relative insignificance of the statement, no suggestion of bad faith.
III
The Trial Court's Admission of Fanelli's Prior Assault with a Firearm as Impeachment Does Not Warrant Reversal
Fanelli contends that the trial court abused its discretion in permitting his credibility to be impeached with a 1993 conviction for assault with a firearm, and for refusing the defense request to "sanitize" the conviction as a generic "felony" or "felony assault." We conclude that even if the trial court abused its discretion, reversal is not warranted because it is not reasonably probable that absent the alleged error, the verdict would have been any different.
Impeachment with prior convictions is governed by article I, section 28, subdivision (f) of the California Constitution, passed by the voters in 1982, which states: "Any prior felony conviction of any person in any criminal proceeding . . . shall subsequently be used without limitation for purposes of impeachment . . . ." (See People v. Castro (1985) 38 Cal.3d 301, 310 (Castro); Evid. Code, § 788.) Despite the broad language of the above provision, limitations remain on the use of prior convictions as impeachment. To be admissible, an impeaching offense must demonstrate a " 'general readiness to do evil,' " i.e., "moral turpitude." (Castro, at p. 314.) In addition, even for crimes involving moral turpitude, impeachment remains subject to the trial court's discretion under Evidence Code section 352. (People v. Hinton (2006) 37 Cal.4th 839, 888 (Hinton).)
Evidence Code section 352 permits a trial court to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." " '[T]rial courts have broad discretion to admit or exclude prior convictions for impeachment purposes,' " and " 'in most instances the appellate courts will uphold its exercise whether the conviction is admitted or excluded.' " (Hinton, supra, 37 Cal.4th at p. 887.)
Fanelli contends that the trial court abused its discretion under Evidence Code section 352 by refusing to exclude or sanitize his prior conviction because: (i) the prior offense occurred over 12 years prior to trial at a time when he was 18 years old; (ii) was for an "identical offense" to that charged; and (iii) was a crime of violence that had little probative value with respect to credibility. We disagree that reversal is warranted on this ground.
Fanelli's prior conviction for assault with a firearm is a crime "denot[ing] moral turpitude" and therefore "admissible for impeachment" subject only to the court's discretion under Evidence Code section 352. (Hinton, supra, 37 Cal.4th at p. 888.) Thus, it cannot be questioned that the trial court did not abuse its discretion in permitting Fanelli to be impeached in some form with the fact that he had a prior felony conviction. If the trial court had excluded such impeachment altogether, the absence of any other impeachable convictions would have enabled Fanelli to testify with a " ' "false aura of veracity" ' " — a factor our Supreme Court recently emphasized in affirming a trial court ruling to permit impeachment with three offenses (murder, attempted murder and assault with a firearm) in a prosecution for murder. (Hinton, supra, 37 Cal.4th at p. 888.)
Fanelli had two felony convictions for drug possession, but possession of drugs does not demonstrate sufficient moral turpitude to permit use as impeachment. (Castro, supra, 38 Cal.3d at p. 317.)
This is true even though Fanelli's conviction was somewhat remote. Remoteness is a factor supporting exclusion primarily when the defendant, after being convicted, reformed his criminal behavior and did not engage in subsequent criminal conduct. (People v. Green (1995) 34 Cal.App.4th 165, 183 [20-year-old offense admissible as impeachment because "[d]espite its age, that conviction was nonetheless admissible because appellant did not subsequently lead a blameless life"].) The prior conviction here did not fit this paradigm, as Fanelli was in prison for eight years after the 1993 offense, and soon after release violated his parole by being convicted in 2002 for drug possession (serving 16 months in state prison) and again in 2005 for drug possession (serving 81 days in jail).
Nevertheless, the trial court's refusal to "sanitize" the conviction and require that it be referred to in front of the jury solely as a prior "felony" or "felony assault" presents a closer question. While the jury, in learning that the assault involved a firearm, received some relevant information for purposes of evaluating the exact degree of moral turpitude evidenced by the prior offense (see People v. Rollo (1977) 20 Cal.3d 109, 118), the probative value of this information was relatively small and there was undeniably an increased potential for unfair prejudice in informing the jury that the prior conviction was essentially identical to the charged conduct. (See People v. Sandoval (1992) 4 Cal.4th 155, 178 [recognizing trial court's discretion to sanitize conviction in light of "similarity of the prior to one of the charged crimes"]; People v. Foreman (1985) 174 Cal.App.3d 175, 182 [potential prejudice of prior offense lessened where crime referred to as " 'felony involving theft,' " which "precluded any speculation the prior involved a heinous crime" and made "the prior similar, but not identical, to the [charged] offense"].)
We need not resolve whether the trial court's refusal to sanitize the conviction constitutes an abuse of discretion, however, because even were we to reach that conclusion, we could not reverse the convictions because any error was not sufficiently prejudicial. (See People v. Marks (2003) 31 Cal.4th 197, 227, 229 (Marks) [erroneous admission of prior conviction impeachment subject to harmless error analysis]; Cal. Const., art. VI § 13 ["No judgment shall be set aside, or new trial granted, in any cause, on the ground of . . . improper admission . . . of evidence, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice"]; Evid. Code, § 354 [same].)
The evidence that Fanelli committed the crimes for which he was convicted (attempted voluntary manslaughter and assault with a firearm) was overwhelming. Fanelli was identified as the shooter by three witnesses, including the victim, two of whom knew him prior to the shooting. None of the witnesses had any identifiable motive for falsely accusing Fanelli; in fact, Fanelli in his own testimony was unable to offer any explanation for why the witnesses would testify that he shot Adrian if that were not the case. That Fanelli had shot Adrian was further corroborated by the fact that he was located minutes after the shooting, leaving the area in a truck that matched the description given by the witnesses, and then attempted to flee from the authorities; and by the fact that Fanelli had gunshot residue on his hands. (Fanelli, in his own testimony, admitted to having been at the scene of the shooting earlier in the night and to being caught leaving the area by police.) Given this evidence, and the court's instruction that the jury could not consider the evidence of Fanelli's prior offense for anything other than impeachment purposes, we conclude that even if the trial court had sanitized the conviction, there would have been "no reasonable probability of a different result." (Marks, supra, 31 Cal.4th at pp. 229, 227 ["the application of ordinary rules of evidence like Evidence Code section 352 does not implicate the federal Constitution, and thus we review allegations of error under the 'reasonable probability' standard"].) Consequently, reversal on this ground is not warranted.
Fanelli emphasizes that in addition to the defense based on his own testimony that he was not present for the shooting, his counsel also raised the alternative defense in closing argument that even if Fanelli was present, he acted in self-defense. As Fanelli testified that he was not present for the shooting, the evidence of self-defense was solely that of the prosecution witnesses, testimony that particularly in light of the second gunshot of a victim doubled over in pain would, at most, support a claim of unreasonable self-defense, which is not a defense to a charge of voluntary manslaughter or assault. (People v. Barton (1995) 12 Cal.4th 186, 200 [" 'unreasonable self-defense' is, as we explained earlier, not a true defense; rather, it is a shorthand description of one form of voluntary manslaughter. And voluntary manslaughter, whether it arises from unreasonable self-defense or from a killing during a sudden quarrel or heat of passion, is not a defense but a crime"].)
The jury was instructed that "[t]he fact that a witness has been convicted of a felony . . . may be considered by you only for the purpose of determining the believability of that witness." The court's instruction minimized any unfair prejudice that might have resulted from its refusal to sanitize the conviction. (People v. Horton (1995) 11 Cal.4th 1068, 1121 [appellate courts should presume jury followed its instructions].)
IV
Sentencing Error Requires Remand
Fanelli contends that his sentence must be reversed because the trial court imposed upper term sentences in violation of his constitutional right to a jury trial and the statutory prohibition of use of the same fact to enhance a sentence and impose an upper term. We agree that the sentence is constitutionally flawed and remand for resentencing.
Fanelli's 30-year sentence consisted of the upper term of five and a half years for attempted voluntary manslaughter (§ 192, subd. (a) [three, six or 11 years for voluntary manslaughter]; § 664 [punishment for attempt is half the term authorized for completed offense]), doubled by a prior strike conviction (§ 667, subd. (e)(1)), plus consecutive terms of three years for the great bodily injury enhancement (§ 12022.7, subd. (a)), the upper term of 10 years for the firearm use enhancement (§ 12022.5, subd. (a) [three, four or 10 years for personal use of firearm]), five years for the prior serious felony (§ 667, subd. (a)(1)), and another year for a prior prison term (§ 667.5, subd. (b)). Fanelli's sentence on the assault with a firearm conviction was stayed under section 654.
In sentencing Fanelli to upper terms for attempted voluntary manslaughter and the firearm enhancement, the court noted that it had "reviewed th[e] probation report," and concluded that there were "several things" in aggravation and "nothing in mitigation." (See § 1170, subd. (b) [requiring court to "set forth on the record the reasons for imposing the term selected"].) The court specifically identified as aggravating factors that Fanelli "continues to use firearms on people and continues to hurt people" and thus would likely reoffend; shot the victim two times, leaving him with permanent injuries; and "chose not to reveal the location of the firearm."
Apart from Fanelli's 1993 conviction for assault with a firearm, which is implicitly referenced in the court's statement of reasons but an impermissible basis for imposing an upper term in this case, the balance of the trial court's stated reasons for imposing upper terms were constitutionally barred because they were not admitted by the defendant, the "fact of a prior conviction," or found by the jury "beyond a reasonable doubt." (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 ["Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt"]; Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856] [applying Apprendi and Blakely v. Washington (2004) 542 U.S. 296 to invalidate California's determinate sentencing laws].) Thus, "[n]one of the aggravating circumstances cited by the trial court come within the exceptions set forth in Blakely," and consequently remand is required. (People v. Sandoval (2007) 41 Cal.4th 825 [reversing imposition of upper term where none of factors cited by trial court satisfied constitutional requirements under Blakely/Apprendi]; People v. Tena (2007) 151 Cal.App.4th 720, 737 ["Because both reasons the trial court cited for selecting the upper term are unsound, we conclude the matter must be remanded to the trial court."]; cf. People v. Fluker (2007) 151 Cal.App.4th 515, 520-521 [rejecting contention that sentence could be affirmed because "if we excise from the court's statement of reasons for imposing the upper term" the improper reasons, "we are left without any stated justification for the imposition of the upper term sentence"].) We, therefore, remand for the trial court to conduct a new sentencing hearing as set forth in Sandoval. (People v. Sandoval, supra, 41 Cal.4th 825.)
The 1993 conviction was relied on to impose two sentencing enhancements and so could not form the basis for imposition of an upper term sentence under section 1170, subdivision (b). We, thus, caution the trial court on remand to avoid any dual use of a fact relied upon to impose a sentence enhancement, including Fanelli's 1993 conviction for assault with a firearm and Fanelli's imposition of great bodily injury, to impose an upper term. (See People v. Bowen (1992) 11 Cal.App.4th 102, 105 ["A sentencing court may not rely on the same fact to impose a sentence enhancement and the upper term"]; § 1170, subd. (b) ["the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law"]; People v. Coleman (1989) 48 Cal.3d 112, 165 [instructing trial court on remand to "avoid any reliance on the same fact . . . for both an upper term and an enhancement"].)
The Attorney General contends that there is no constitutional error because Fanelli's "numerous" prior convictions and his "unsatisfactory performance on parole" — as well as the asserted fact that the jury "would have found" aggravating factors "relat[ed] to [Fanelli's] prior criminal history" to be true beyond a reasonable doubt "had they been presented to them" — rendered him constitutionally "eligible" for an upper term sentence under California law. (People v. Black (2007) 41 Cal.4th 799, 806 (Black II).) We do not believe, however, that the factors referenced by the Attorney General (none of which were relied upon by the trial court) are sufficiently established on the sentencing record to satisfy the constitutional requirement of the existence of a "legally sufficient aggravating circumstance." (Black II, at p. 816.) Consequently, we reject this contention and remand for resentencing.
In addition to the constitutional problem noted above, there arguably is also a looming Fifth Amendment issue based on the trial court's reliance on the fact that Fanelli refused to divulge incriminating information to the police (the location of the gun). (See, e.g., U.S. v. Perez-Franco (1st Cir. 1989) 873 F.2d 455, 463 ["the Supreme Court repeatedly has made it quite clear that the government cannot impose penalties because a person elects to exercise his fifth amendment right not to give incriminating testimony against himself"]); U.S. v. Heubel (3d Cir. 1989) 864 F.2d 1104, 1113 [reversing where "the district court impermissibly considered defendant's failure to waive his Fifth Amendment rights against self-incrimination in formulating his sentence"]; Mitchell v. United States (1999) 526 U.S. 314, 330.) As we determine that the sentence must be reversed on other grounds, however, we need not, and do not, resolve whether the court's reliance on this factor was erroneous.
DISPOSITION
The sentence is vacated and the case is remanded for the trial court to conduct a new sentencing hearing. In all other respects, the judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., McDONALD, J.