Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. CM023684
MORRISON, J.
Defendant shot Jamie Mathis with a shotgun, killing her. At trial, there were two different versions of the events that night. Under the prosecution’s version, presented by testimony of Jamie’s family and friends, defendant was the aggressor and the crime was premeditated murder. Defendant claimed Jamie and her cohorts were the aggressors and he shot in self-defense. Accepting neither version completely, the jury convicted defendant of voluntary manslaughter (Pen. Code, § 192) and found he personally used a firearm (Pen. Code, § 12022.5, subd. (a)). The trial court found defendant had a previous prison term pursuant to Penal Code section 667.5, subdivision (b). The trial court sentenced defendant to the upper term on both the offense and the enhancement, for a total of 22 years in prison.
For clarity, members of the Mathis family are referred to by their first names.
On appeal, defendant contends he was denied his right to present a defense because the trial court excluded evidence of the victim’s propensity for violence. He contends it was error to restrict cross-examination of a prosecution witness and not to instruct on involuntary manslaughter. Finally, he challenges his upper term sentence under Cunningham v. California (2007) 539 U.S. ___ [166 L.Ed.2d 856].) We find merit only in the last contention. We remand for resentencing and otherwise affirm the judgment.
FACTS
Prosecution Case
The prosecution witnesses told essentially the same story about the events that night. The evening of the shooting, Dustin Bates, a friend of Jamie and her brothers, Gary and Brandon, came by the apartment where Jamie and Gary lived. Jamie’s cousin Brandy Souder was there. Jamie was drinking beer. She did not appear intoxicated, but it was stipulated her blood alcohol level at her death was .12 percent.
They were on the front porch and Jamie was telling the story of how a man in a stolen car had spun out in front of the apartment several months earlier. Defendant walked by and overheard the conversation. He got angry and said, “[y]ou think that’s funny?” Defendant said he was the one who stole the car and threatened to come back with others “to fuck you guys up[.]” Jamie told Gary about the threat and Gary called the sheriff. He was told to get inside, lock the door and call back if the men returned. He did not tell the others to do so. Afterwards two cars drove by and the men inside yelled at the Mathis group.
Later that night, Shane Keck and Brandon Mathis came over; they had been at Wal-Mart getting pictures made of their children. They were told about the earlier threat and that the police were not coming out.
The Mathis group saw defendant and another man walking down the street towards the apartment with a flashlight. Defendant had a bar in his hand. Brandon and Bates walked down the street and confronted the two men; they fought. Bates fought defendant; defendant threw his bar at Bates and Bates picked it up. Defendant tripped backing up and then ran into his house. Jamie and Brandy followed Bates and Brandon.
It was 494 feet from the apartment to defendant’s residence.
Defendant came out of the house with something in his hand. Someone yelled, “He’s got a gun.” There was a gunshot and the group ran. Keck grabbed a baseball bat and ran to the street. Jamie yelled that she had been shot and fell. They carried her back to the apartment. Gary’s girlfriend called the police.
Gary testified he told Jennifer Pulley to call the police when he heard the four were fighting, before the shot. Pulley testified Gary told her to call the police after the shot.
Jamie died from injuries from multiple gunshot wounds. She was erect when shot and hit by approximately 85 pellets. The shotgun was fired from a distance of 40 to 50 feet away.
An open knife was found in the street, 280 feet from defendant’s gate. There was a large amount of blood on the knife; it was stipulated the blood was Jamie’s. The ballistics expert testified the knife’s condition was consistent with someone running with it with the sharp end down. Bates, Brandy, Gary and Brandon claimed they never saw the knife that night. Gary testified Jamie carries a knife only to fish or cook.
A baseball bat was found 394 feet from defendant’s gate. It was stipulated that Shane Keck’s fingerprint was on the bat.
Defense Case
The defense provided a starkly different version of events. About three months before the shooting, there was an incident when a car spun out and the driver ran into defendant’s yard. The police arrived and chased the driver, going into defendant’s house. Defendant was never a suspect; he cooperated with the police when they arrived.
The night of the shooting defendant’s son left shortly before midnight to go to the bay area. When he left, defendant was welding a bike stand. As he drove past the apartments, the son saw about 10 people having a barbeque.
Defendant, who had a prior felony conviction, walked past the apartments that day looking for his dog. The people at the apartment were talking about the car that spun out months earlier. They were loud and accusing him of being the driver. When defendant said it was not him, a guy stood up and said the girl could say what she wanted. Angry words were exchanged. That night defendant was working on his bike when he saw the group coming towards his house. He grabbed a spotlight and walked to the edge of the driveway. A guy told defendant to “get the fucking light” out of his eyes. Defendant dropped the light and picked up a bar or pipe. The guy put down his beer and picked up a rock; as he threw the rock he said, “break out the pistols.” Defendant threw the pipe at him and ran back into his yard. The guy swung at him and defendant slipped. The guy picked up the pipe.
In his statement to police that night defendant mentioned only one pistol.
Terrified, defendant ran into his mother’s house and got a shotgun. The group was coming up the driveway and into the yard. Believing they had weapons, defendant shot towards the gate. He went in the house to get another shotgun shell. The group left and defendant told his mother to call the police; he may have shot someone.
Deputy Sheriff William Olive testified for the defense. When he arrived at Jamie’s there were people yelling and cursing at him. He had to put people on the ground at gunpoint to retain control. They threatened to take care of defendant if the police did not. Brandon told him Jamie went to defendant’s by herself; he did not mention two men or the fight. Bates, Keck, and Gary all said they were inside when the shooting occurred. Keck did not mention the bat. Gary said they were all drinking that night, having a party. Brandy told the officer she, Jamie, Bates and Keck were near defendant’s and having an argument. Defendant ran into the house and got a shotgun and fired. She did not mention the second man or the fight.
At trial only Brandon admitted drinking; he said he had one beer.
Bates denied he ever spoke to the police that night. Brandon denied he made the statements attributed to him in the police report. He claimed he told the police about the second man and the fight; he gave a brief description of everything that happened. Brandon and Gary denied they got together with the others and made up a story.
DISCUSSION
I. Exclusion of Evidence of Jamie’s Propensity for Violence
Defendant contends he was denied his constitutional right to present a defense because the trial court excluded evidence of Jamie’s propensity for violence. Defendant sought to introduce this evidence under Evidence Code section 1103, to show Jamie was an aggressor that night, that she was acting in conformity with her character for violence. Defendant offered such evidence both during trial and afterwards in a motion for a new trial. We consider each in turn.
Prior to trial the People moved to exclude “irrelevant inflammatory evidence” regarding Jamie’s past conduct and her reputation for violence. The People argued such evidence had no probative value because defendant did not know about it and thus it could not have influenced his behavior the night of the shooting.
Defendant moved in limine to admit evidence of a prior incident where Jamie stabbed a person, as well as evidence of her history of carrying weapons and violence. Defendant sought to admit this evidence under subdivision (a) of Evidence Code section 1103 to show Jamie and her family went to defendant’s house to attack him.
The trial court stated it was inclined to admit evidence of the prior incident, but postponed a ruling until a hearing pursuant to Evidence Code section 402 was held.
Near the end of trial the defense called Dustin Bates as a witness at a 402 hearing. Bates admitted that on New Year’s Eve in 2000 he and Jamie were involved in a fight where Jamie stabbed someone. He claimed he did not see the stabbing because he was asleep. He knew she stabbed someone because she told him. On cross-examination by the prosecution, Bates explained there were about nine guys fighting Jamie and her cousin Gary Cole when he joined the fight. Both he and Jamie were stabbed. The police came, but no one was arrested.
The court asked if defense counsel had any other witnesses. The defense had another witness, but she was too scared to come to court. In an offer of proof, the defense stated this witness would testify she saw Jamie come out of the house, hit someone with a bat, and stab someone with a knife, all unprovoked.
The trial court ruled the evidence of the prior stabbing incident would be excluded.
Under Evidence Code section 1103, subdivision (a): “In a criminal action, evidence of the character or a trait of character (in the form of opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.”
Where self-defense is raised in a homicide case, evidence of the aggressive and violent character of the victim is admissible and may be proved by either reputation evidence or specific acts of the victim on third persons. (People v. Rowland (1968) 262 Cal.App.2d 790, 797 [error to exclude evidence that victim of assault was an aggressive homosexual].) In People v. Brophy (1954) 122 Cal.App.2d 638, the court found it error, though harmless, to exclude evidence that one of the three men defendant claimed advanced on him before he fired had a bad reputation for peace and quiet. “[T]he law recognizes the well-established fact in human experience that the known reputation or character of an assailant as to violence and turbulence has a very material bearing on the degree and nature of the apprehension of danger on the part of a person assaulted; also that one who is turbulent and violent may the more readily provoke or assume the aggressive in an encounter.” (Id. at pp. 647-648.)
We review the trial court’s rulings on the relevance and admissibility of evidence under the abuse of discretion standard. (People v. Harrison (2005) 35 Cal.4th 208, 230.) While we agree with defendant that he did not have to show he knew of Jamie’s reputation for violence for the evidence to be admissible, we find no abuse of discretion in excluding the proffered evidence.
The only evidence that defendant could produce at trial was the testimony of Bates about the New Year’s Eve stabbing. This evidence was fraught with problems. First, it was hearsay as Bates claimed he did not see the stabbing; Jamie told him about it. Even if the evidence was admissible under an exception to the hearsay rule, its probative value was questionable due to the uncertainty of the circumstances surrounding the stabbing. There was no arrest in the incident, indicating the police did not determine Jamie was the aggressor. Bates suggested the stabbing was self-defense because a large number of men were attacking Jamie and her cousin. “The court is not required to admit evidence that merely makes the victim of a crime look bad.” (People v. Kelly (1992) 1 Cal.4th 495, 523.) Since it was uncertain that the evidence would show Jamie was an aggressive, violent person and it would be time consuming, confusing and have prejudicial effect, we find no abuse of discretion in excluding it. (See People v. Tafoya (2007) 42 Cal.4th 147, 173-174.) We recognize the trial court did not exclude the evidence under Evidence Code section 352. “In reviewing a trial court’s decision, we review the result, not the reasoning.” (Florio v. Lau (1998) 68 Cal.App.4th 637, 653.)
After the verdict, defendant moved for a new trial on the basis that he had newly discovered evidence, two new witnesses. The defense claimed this new evidence would show Jamie was an aggressive, violent person and the Mathis group was looking for trouble all day, culminating in their walk up to defendant’s residence.
T.T., the first witness, was known to the defense at trial, but could not be produced because she hid and could not be subpoenaed. She declared she witnessed the New Year’s Eve attack in 2000. She saw Jamie hit her brother Daniel in the head with a bat and swing a knife at him. She knew Jamie to carry knives and as a very violent person. T.T. claimed she hid during trial because she was afraid of the Mathis family and afraid of being labeled a “snitch.” The second witness, L.H., would testify that the night of the shooting he saw a group of people at the Mathis residence hooting, hollering and flipping off people; he thought they were “seriously looking for trouble.” He later encountered them at the Jiffy market. A girl with a shaved head “got buff” with him and would not let him enter the store. He saw the chaos at the Mathis residence after the shooting.
The trial court denied the motion for a new trial. It found the relevant issue was defendant’s state of mind and the new evidence was not material to that issue because defendant did not know Jamie’s reputation for violence.
Penal Code section 1181 provides in part: “When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶] . . . [¶] 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. . . .”
In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: “‘1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.’” (People v. Sutton (1887) 73 Cal. 243, 247-248; People v. Delgado (1993) 5 Cal.4th 312, 328.)
A trial court’s ruling on a motion for a new trial is reviewed for abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 667.) We find no abuse of discretion because it is not probable the new evidence would have resulted in a different result.
“To grant a new trial on the basis of newly discovered evidence, the evidence must make a different result probable on retrial. [Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 473.) Defendant argues a different result was probable because the new evidence would have painted Jamie in a very different light, as a belligerent, aggressive trouble-maker rather than “just a nice person who came upon the scene and got hurt.” What defendant ignores, however, is the verdict indicates the jury did not accept the prosecution’s version of the case. In rejecting murder, the jury rejected the view that defendant was the sole aggressor. There was ample evidence from which the jury could reject the prosecution’s version of events. The major prosecution witnesses were impeached by Deputy Olive and a knife was found with Jamie’s blood on it, permitting the inference that she carried it. In sentencing defendant, the court recognized Jamie’s aggressive participation in the crime and found there was some provocation. In the trial court’s view, “[t]he jury seems to have found simply that the defendant’s belief [in the need to shoot in self-defense] was not reasonable, and therefore was mistaken.”
Since the jury already found the Mathis group was the aggressor, evidence showing Jamie was aggressive would not have changed the outcome. Rather, what was needed was evidence to establish that defendant’s belief in the need to use deadly force in self-defense was reasonable. Accordingly, the relevant issue in the motion for a new trial was, as the trial court stated, whether the new evidence was material to defendant’s state of mind, showing his belief was reasonable. The new evidence did not speak to defendant’s state of mind; he did not know of Jamie’s aggressive behavior or reputation for violence. The trial court did not abuse its discretion in denying the motion for a new trial.
II. Restriction of Cross-Examination
Defendant contends the trial court erred, and denied him the constitutional right to confront and cross-examine his accusers, by restricting his cross-examination of Gary Mathis. He contends his cross-examination would have revealed that the Mathis group made up the presence of the second man and this revelation would have undercut the prosecution’s case.
On cross-examination, defense counsel asked Gary if he originally believed two men were arrested. At a bench conference after an objection, defense counsel explained that in a videotaped interview Gary said he thought two men were arrested. Immediately after the shooting, no one mentioned two men; two days later everyone said defendant and another man came down the street. Defendant wanted to show that Gary had talked to the Mathis group, told them two men were arrested, “so they had to get their story straight.” The court sustained the objection, finding defendant’s theory of collusion “a little convoluted” because the “inferences don’t logically follow from one another.” The court stood by its ruling when defense counsel tried to raise the point again during the testimony of Brandon Mathis.
The confrontation clause of the Sixth Amendment guarantees a criminal defendant the right to confront witnesses against him; this right includes the opportunity for cross-examination. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678 [89 L.Ed.2d 674, 682-683].) The right of cross-examination, however, is not without limits. “[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” (Id. at p. 679.)
Defendant contends restriction of the cross-examination of Gary Mathis was prejudicial error because it would have produced “a hugely different impression of the credibility of not only Gary Mathis, but also the credibility of the other Mathis clan witnesses.” He contends the cross-examination would not have been repetitious because it was “all by itself.” We disagree.
“There is no Sixth Amendment violation at all unless the prohibited cross-examination might reasonably have produced ‘a significantly different impression of [the witness’s] credibility . . . .’ [Citation.]” (People v. Rodriguez (1986) 42 Cal.3d 730, 750-751, fn. 2.) Trial counsel was very effective in impeaching the testimony of the Mathis group about the events that night. Deputy Olive testified their initial statements to the police were very different from their trial testimony, and their behavior that night so unruly that he had to subdue them at gunpoint. Deputy Olive also corroborated defendant’s testimony that he was never a suspect in the stolen car incident the prior May, casting suspicion on the claim of the Mathis group that defendant said he stole the car and became enraged when the others laughed about it. Defense counsel raised these points in closing argument; he argued the “second guy” was a phantom, noting the description of him was both vague and inconsistent. Gary Mathis was also impeached on minor matters. He claimed he told his girlfriend to call the police before the shooting; she testified he told her to call after the shot was fired.
The manslaughter verdict indicated the jury did not accept the prosecution version that defendant was the aggressor and Jamie was an innocent bystander. The difficulty for the defense was convincing the jury that defendant acted reasonably in self-defense. The defense failed to do that and further cross-examination of Gary Mathis about the second guy would not have aided the effort.
III. Failure to Instruct on Involuntary Manslaughter
Defendant contends the trial court erred in refusing to instruct on involuntary manslaughter because there was evidence defendant did not have an intent to kill. Defendant relies on the following statement from People v. Rogers (2006) 39 Cal.4th 826, 884: “An instruction on involuntary manslaughter is required whenever there is substantial evidence indicating the defendant did not actually form the intent to kill. [Citations.]” We find no error. This statement in Rogers is dictum, and one of the cases cited in support of it, People v. Ray (1975) 14 Cal.3d 20, was overruled in People v. Blakeley (2000) 23 Cal.4th 82 (Blakeley), and People v. Lasko (2000) 23 Cal.4th 101, which held voluntary manslaughter does not require an intent to kill.
Defendant requested an instruction on involuntary manslaughter. The instruction read: “Every person who unlawfully kills a human being without malice aforethought and without an intent to kill is guilty of the crime of involuntary manslaughter in violation of Penal Code § 192(b). In order to prove such a crime, each of the following elements must be proved: [¶] 1. A human being was killed. [¶] 2. The killing was unlawful. [¶] The killing was unlawful within the meaning of this instruction when the accused actually but unreasonably believes in the necessity to defend himself or another, and having such mental state, unintentionally causes the death of a human being.”
After a lengthy discussion of People v. Blakeley, supra, 23 Cal.4th 82, the trial court ruled it would not give the instruction. The trial court did not err.
In Blakeley, defendant got into a fight with the victim. The victim, who was larger, swung a beer bottle at defendant and missed. Defendant hit the victim with an unopened bottle; the bottle shattered and cut the victim’s cheek. The victim charged defendant and defendant drew a knife and stabbed the victim. (Blakeley, supra, 23 Cal.4th at pp. 85-86.) Defendant requested an instruction on involuntary manslaughter, identical to the one defendant requested here. (Id. at p. 86, fn. 1.) The court denied the request and the jury convicted defendant of voluntary manslaughter. (Id. at pp. 86-87.)
On appeal defendant asserted one who unintentionally and unlawfully kills in unreasonable self-defense is guilty of only involuntary manslaughter. (Blakeley, supra, 23 Cal.4th 82, 88.) The high court disagreed, concluding “that when a defendant, acting with conscious disregard for life, unintentionally kills in unreasonable self-defense, the killing is voluntary, not involuntary, manslaughter.” (Id. at pp. 88-89.) The court recognized it had often said intent to kill was a necessary element of voluntary manslaughter, but in the companion case of People v. Lasko, supra, 23 Cal.4th 101, the court pointed out such language was mere dictum and incorrect; nothing in Penal Code section 192, subdivision (a), which defines voluntary manslaughter, requires an intent to kill. (Blakeley, supra, at p. 89.) The court found retroactive application of its holding would be unconstitutional, so it was error to deny the request for the involuntary manslaughter instruction. (Id. at pp. 91-93.) The court found the error harmless because there was no reasonable probability it affected the outcome of the case. (Id. at pp. 93-94.)
In People v. Lasko, supra, 23 Cal.4th 101, the court held a defendant who, with conscious disregard for life and the knowledge that such conduct endangers the life of another, unintentionally but unlawfully kills in a sudden quarrel or the heat of passion is guilty of voluntary manslaughter.
Blakeley was decided in 2000, five years before the shooting in this case, so we do not face an issue of retroactive application. The majority in Blakeley had “no quarrel” with the view that one who unintentionally kills in unreasonable self-defense may sometimes be guilty of only involuntary manslaughter. “We conclude only that a defendant who, with the intent to kill or with conscious disregard for life, unlawfully kills in unreasonable self-defense is guilty of voluntary manslaughter.” (Blakeley, supra, 23 Cal.4th 82, 91, italics in original.)
While there was evidence, defendant’s testimony, that he shot without an intent to kill, there was no evidence that he lacked a conscious disregard for life in shooting. Shooting a shotgun into a group of people exhibits a conscious disregard for life. (In re Sergio R. (1991) 228 Cal.App.3d 588, 596.) Since defendant exhibited a conscious disregard for life, if the jury found his self-defense was unreasonable, he was guilty of voluntary manslaughter. The trial court did not err in refusing his instruction on involuntary manslaughter.
IV. Blakely/Cunningham Error - Sentencing to Upper Term
The trial court imposed the upper term on both voluntary manslaughter and the personal use enhancement, citing as aggravating factors that the crime involved great violence and defendant engaged in violent conduct indicating he was a serious danger to society. Defendant contends his sentence must be reduced to the middle term because the trial court relied on aggravating factors that were not found by a jury, admitted by defendant, based on defendant’s prior convictions, or that would not have necessarily been found true by a jury beyond a reasonable doubt.
In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), the United States Supreme Court held that “[o]ther 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.” (Id. at p. 490.) In Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), the Supreme Court applied Apprendi to invalidate a state court sentence. (Blakely, at p. 303.) In Cunningham v. California, supra, 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), the Supreme Court applied Apprendi and Blakely to California's determinate sentencing law and held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence[,]” California's determinate sentencing law “violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Id. at p. ___ [166 L.Ed.2d at p. 864], overruling on this point People v. Black (2005) 35 Cal.4th 1238 (Black I), vacated sub. nom. Black v. California (2007) 549 U.S. ___ [167 L.Ed.2d 36].)
The People contend defendant’s claim of error fails because he forfeited his claim of error, the trial court’s findings fell under the recidivist exception, and because any error was harmless beyond a reasonable doubt. We disagree.
Defendant did not forfeit his claim by failing to object below. He was sentenced October 11, 2006, under the then-governing authority of Black I, which held that Blakely was inapplicable to the selection of the upper term, and which was reversed on this matter in Cunningham. (Cunningham, supra, 539 U.S. at p. ___ [166 L.Ed.2d at p. 876.) Accordingly, any objection based on Blakely would have been futile. “Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence. [Citations.]” (People v. Welch (1993) 5 Cal.4th 228, 237-238.)
In People v. Black (2007) 41 Cal.4th 799(Black II), the California Supreme Court concluded that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.) “Under California's determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Ibid.) According to the high court, “imposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions.” (Id. at p. 816.)
The People contend the one aggravating factor authorizing an upper term sentence in this case was defendant’s prior record of convictions. We disagree. California Rules of Court, rule 4.421 lists a defendant’s prior record of convictions as a circumstance in aggravation. (Undesignated rule references hereafter are to the California Rules of Court.) However, it requires more than just the fact of a conviction. It reads: “The defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness.” (Rule 4.421(b)(2).) Thus, in order for the court to use a defendant's prior criminal record as an aggravating factor, those convictions must be numerous or of increasing seriousness.
The trial court mentioned defendant’s criminal record only in addressing the factors in mitigation. It found defendant’s performance on probation or parole was satisfactory. The court found his criminal record, consisting of “one felony, some infractions and a small number of misdemeanors, is not extensive.” Thus, the court did not find defendant’s prior convictions numerous or of increasing seriousness and did not rely on the recidivism exception in imposing the upper term; it cannot be used to authorize an upper term sentence.
Finally, the People contend that, if it can be concluded the jury would have found at least one of the aggravating circumstances mentioned by the trial court to be true beyond a reasonable doubt, the upper term sentence was authorized and any Blakely error was harmless. Blakely error is reviewed under a harmless-beyond-a-reasonable-doubt standard. (Washington v. Recuenco (2006) 548 U.S. ___ [165 L.Ed.2d 466].) Here, the People assert, without discussion, that the jury would have found “all, or at least most” of the aggravating circumstances mentioned by the trial court to be true beyond a reasonable doubt.
Rule 4.421, lists circumstances in aggravation. The trial court cited two circumstances in aggravation to support the upper term. “The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.” (Rule 4.421(a)(1)) “The defendant has engaged in violent conduct that indicates a serious danger to society.” (Rule 4.421(b)(1).)
On the record before us, we cannot say the jury would have found the aggravating factors true beyond a reasonable doubt. Doubtless, defendant’s crime was a violent one; however, it is difficult to imagine a case of voluntary manslaughter with personal use of a firearm that is not. Rule 4.421(a)(1) speaks of great violence that discloses “a high degree of cruelty, viciousness, or callousness.” The jury apparently found imperfect self-defense, an honest but unreasonable belief is a state of mind inconsistent with callousness or cruelty. Further, shooting in those circumstances does not necessarily show defendant poses a danger to society. (Rule 4.421(b)(1).)
In People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), the court addressed the considerations in applying a harmless error analysis in this context. The court noted the aggravating factors for sentencing are not directly at issue in the trial. We cannot assume the record before us contains all the evidence that might have been presented if the issues of great violence and violent conduct indicating a serious danger to society had been litigated at trial. (Id. at p. 839.) Nor did defendant have the same incentive and opportunity to contest aggravating factors as he would have had if they had been tried to a jury. (Ibid.) “Additionally, to the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.” (Id. at p. 840.) Therefore, the error under Blakely and Cunningham was not harmless beyond a reasonable doubt.
Because of the foregoing error, the matter must be remanded for resentencing. Consistent with Sandoval, such resentencing shall be conducted in accordance with the sentencing laws and rules currently in force that eliminate the presumption of the middle term absent aggravating or mitigating factors. (See Sandoval, supra, 41 Cal.4th at pp. 845, 857-858.)
DISPOSITION
Defendant’s sentence is reversed and the case is remanded to the trial court with directions to resentence defendant in accordance with Cunningham, Black II, and Sandoval. In all other respects, the judgment is affirmed.
We concur: BLEASE, Acting P.J., CANTIL-SAKAUYE, J.