Filed 10/1/14 P. v. Garcia CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,

v.
MELVIN GARCIA,
Defendant and Appellant. B247846
(Los Angeles County Super. Ct. No. PA072544)

APPEAL from a judgment of the Superior Court of Los Angeles County. Daniel B. Feldstern, Judge. Affirmed as modified. Carlo Andreani, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Steven D. Matthews and Rama R. Maline, Deputy Atto rneys General, for Plaintiff and Respondent.

________________ _______________2 Melvin Garcia appeals from a judgment entered after a jury found him guilty of attempted voluntary manslaughter and assault with a firearm, and also found firearm and great bodily injury enhancements to be true . The trial court sentenced him to 18 years and six months in prison. Garc ia contends the trial court erred in failing to instruct the jury sua sponte on the defens e of unconsciousness, in failing to finding the victim’s provocation as a mitigating factor precluding an upper term sentence, and in its improper dual use of facts in making its sentencing ch oices. We reject these contentions. As explained below, we modify the judgment to reflect the correct amount in court security

fees under Penal C ode section 1465.8. 1 As so modified, we affirm.
BACKGROUND After shooting Jaime Solis, Garcia wa s charged with willful, deliberate and premeditated attempted murder and assault with a firearm. The information also alleged firearm and great bodily injury enhancements.
At trial Garcia admitted he shot Solis , but his counsel argued he did not commit attempted murder. Defense counsel urged th e jury to find Garcia guilty of the lesser offense of attempted voluntary manslaughter under a theory of impe rfect self-defense. Defense counsel also argued heat of passion as an alternativ e theory supporting attempted voluntary manslaughter.
Prosecution Evidence
Defendant Garcia and victim Jaime Solis lived in the same apartment complex in Panorama City. Garcia lived in a lower leve l unit with his girlfriend, Martha Pineda. Solis lived directly above th em in an upper level unit. Jose Arturo Vasquez, who
witnessed Garcia shoot Solis on January 27, 2012, lived in a lower level unit near Garcia’s apartment. 2

1 Further statutory references are to the Penal Code.

2 Solis, Pineda and Vasquez testified for th e prosecution. At the time of trial, Pineda still considered Garcia to be her boy friend and Vasquez consid ered both Solis and Garcia to be his friends.3 In the evening on January 27, 2012, Solis was in his apartment with Vasquez and two other guests listening to mu sic and drinking beer. During the course of the evening, Solis told Vasquez he wanted to move out of his apar tment because the apartment manager told him Garcia and Pineda had been complaining about noise coming from Solis’s apartment. Neither Ga rcia nor Pineda had ever comp lained directly to Solis.
Solis did not believe the no ise complaints were valid. Vasquez suggested Solis go
downstairs and talk to Garc ia about the noise issue. After drinking six to eight beers over a tw o-hour period, Solis left his apartment and walked downstairs with Vasquez. Solis planned to move his car into his assigned parking space and Vasquez planned to go home to his own apartment. As they walked by Garcia’s apartment, one of the men called Garcia’s name. 3 Garcia appeared on his patio and opened the gate. Solis and Vasquez entere d Garcia and Pineda’s patio. Pineda was in the living room of her apartment. A s liding glass door separated the patio from the living room. Pineda’s 14-year-old daughter a nd eight-year-old grandson also were inside the apartment. Garcia brought Solis a beer, which Solis accepted. Garcia and Solis engaged in casual, friendly conversation. Then, Garcia and Solis began to argue. According to Pineda, who was listening to the conversation from the living room, Solis spoke to Garcia in a disrespectful a nd aggressive manner, while Garcia remained
calm. Solis asked Garcia if the music So lis was playing was bot hering Garcia. Solis began insulting Garcia, calling Garcia a “son of a bitch,” and a “cerote” (a Salvadoran expression meaning “piece of shit”). Solis also asked Garcia if it bothered him that Solis “had loud sex with his [So lis’s] wife upstairs.” Pineda ’s young daughter and grandson were in earshot while Solis made “vulgar” comments. Solis told Garcia, when Garcia and Pineda “made carne asada, he felt like co ming out to the balcony and throwing up all
over the barbecue.” Solis also i ndicated “he wanted to kick [G arcia’s] ass.” It appeared

3 At trial, Vasquez testified that Solis call ed out to Garcia. Solis testified that Vasquez called out to Garcia.4 to Pineda that Solis was drunk. Garcia asked Solis to calm down and indicated they
could talk later when Solis had calmed down. As Solis and Vasquez walked toward the patio gate, Pineda heard Solis say, “that’ s how people from El Salvador behave, they
have no balls.” Garcia is from El Salvador and Solis is of Mexican descent. According to Solis’s trial testimony, while he and Garcia were engaged in their casual, friendly conversation, Pineda came to the door separating the patio from the living room and started saying “bad words” to Solis. Solis told Garcia “to calm her
down.” Garcia refused. Pineda told Solis she wanted him to leav e, and she was “‘fed up with all of [his] noise.’” Solis again asked Garcia to calm Pineda down. When Garcia again refused, Solis told Garcia, “‘you’re a faggot son of a bitch .’” Solis and Garcia began to argue. Solis raised hi s voice, but Garcia did not. So lis admitted at trial that he made “insulting” and “vulgar” comments to Garcia, including calling Solis a “cerote.”
Solis knew the word “cerote” is a Salvadoran expression meaning “turd.” Solis denied he threatened “to kick [Garcia’s] ass.” Vasquez “paid no attention” to what Solis and Garcia were saying to each other.
But when he realized they were arguing, Vasquez “grabb ed [Solis] by the shoulder,” and told him, “‘Let’s get out of here now.’” Solis cooperated with Va squez and the two men walked away, exiting the patio and m oving toward Vasquez’s apartment.
Pineda walked into the k itchen of her apartment with her grandson. She could still hear Solis making “insulting” comments about Garcia as he and Vasquez walked away. Garcia was telling Solis to leav e. Pineda saw Garcia enter their apartment and go into his
bedroom. As Solis was walking away from Garc ia and Pineda’s patio, he “heard the “cocking of [a semiauto matic] weapon.” He also heard Garcia say, “‘I’m going to kill you, son of a bitch.’” Solis turned and saw th e “flashing of the gun.” He asked Garcia to
calm down. He walked toward the stairs lead ing to his apartment. Garcia continued to
fire shots at him. Bullets struck Solis’s bu ttocks and right side. Solis fell to the ground and tried to cover up to protect himself. As Garcia continued sh ooting, Solis started5 dragging his body toward the parking lot. He felt another bullet strike his left leg. After Garcia stopped shooting, Solis saw Garc ia running toward the parking lot. When Pineda heard gunfire, she exited he r apartment. She saw Garcia with a gun in his hand, firing at Solis. After Garcia stopped shooting, Pineda saw Garcia running toward the parking lot.
Officers arrived at the scene and ca lled for an ambulance for Solis, who was conscious and able to answer questions. One of the officers observed at least three bullet entry wounds on Solis’s back. Solis told officers “Melvin” shot him. Officers interviewed Pineda after learning she was “Mel vin’s” girlfriend. Pineda declined to provide Garcia’s full name or date of birth. Officers discovered Garcia’s identity after searching his apartment and locating his passport and vehicle registration.
At the scene officers recove red 14 spent shell casings , nine-millimeter caliber. They also discovered one live ro und on Garcia and Pineda’s patio and three spent rounds, including one that had entere d the apartment next door (all nine-millimeter caliber). The day after the shooting Garcia fled to Las Vegas, Nevada with Pineda and her daughter. While in Las Vegas, Garcia sold the pickup truck registered in his name. About a month after the shooting, Garcia was arrested in Las Vegas and brought back to
California. Solis was in the hospital fo r two months. He underwent seven surgeries to repair damage to his right leg. When he was rele ased from the hospital, he was confined to a
wheelchair. In November 2012 , more than nine months afte r the shooting, Solis was able to start walking again using crut ches and thereafter a cane. At the time of trial, Solis still experienced daily pain in his right leg.
Defense Evidence Garcia’s testimony
Garcia testified in his defense. He stat ed he was born in El Salvador. When he was 11 years old, a “heavily armed” military “death squadron” a ffiliated with the government kicked down the door of his fam ily’s home in El Salvador. The men ordered Garcia and his sister, mother, father and uncle to get on thei r knees. Then the men took6 Garcia’s uncle and father outside and shot them with rifles. Garcia witnessed the executions from about 20 feet away. Garcia gr ew up wanting to seek revenge. He joined the army when he was 16 years old. When Garcia first became acquainted w ith Solis he believed Solis was “a good person” and “a normal neighbor.” Garcia would come into contact with Solis “frequently” in the apartment complex parkin g lot when Garcia re turned from work. Over time, however, Garcia’s perception of Solis’s demeanor and attitude changed. In 2010, Garcia saw the police a rrest Solis at the apartment complex after Garcia heard a woman crying and “very loud yelling” coming from Solis’s apartmen t. In 2011, the police again responded to the apartment complex looking for Solis after Garcia observed Solis banging on his (Solis’s) apartment door with a metal pipe. Solis fled before the police arrived, dropping the pipe on the stairc ase, climbing on Garcia’s truck, jumping on top of a van, and entering the school yard next to the apar tment complex. About once a month, Garcia would hear a ma le yelling inside Solis’s apar tment. Garcia assumed the male was Solis because Solis was the only man who lived in that apartment. Early one morning, Garcia heard a woman in Solis’s ap artment screaming, saying “she wanted to jump from the apartment” and “kill herself.” All of these incidents changed Garcia’s opinion of Solis. Garcia no lo nger perceived Solis as “a calm person.” Garcia no longer
trusted Solis. In the evening on January 27, 2012, Garcia had just a rrived back from the liquor store, and was “placing the box with beer on the table” in the living room, when he heard
Solis call his name. Garcia went outside on his patio and saw Solis and Vasquez standing by the patio gate. Solis motioned to Garcia, i ndicating he wanted to talk. Vasquez told Garcia they wanted to talk to him upstairs in Solis’s apartment. Garcia declined the invitation to go upstairs, but offered the me n a beer. They accepted, and the three men began drinking beer. Solis asked Garcia if it “‘upset’” him when Solis played music in his apartment. Garcia said it did not, and he asked why Solis was making th at inquiry. Solis explained that on two occasions management had come to his apartment and told him “‘to quiet7 down’” because there had been noise complaints “‘from downstairs.’” Garcia stated he had “not complained to anyon e” and did not know about the complaints. Solis asserted, “it’s obvious that everything bothers you.” Garcia asked what Solis meant. Solis responded, “‘When I fuck, I like to fuck until I messed up the bed. And I think that [upsets] you.’” Solis made faces at Garcia, “mocking” him. Garcia became “upset.” Garcia asked Solis to leave his patio. Pineda’s daughter and grandson were standing by the door separating the patio fro m the living room, and Garcia did not want
them to hear Solis’s comments. Solis replied, “‘I don’t get you. You have no balls. Why don’t you stand by what you say. I don’t get you.’” Solis “continued offending” Garcia.
He stated when Garcia “cooked carne asada it made him [wan t] to throw up.” He also
told Garcia “it bothered him” when “the kids ” ran around downstairs. Solis was yelling. Garcia, who was “heating up a little bit” by this poi nt, reiterated he wanted Solis to leave.
He told Solis he “did not want to have any problems with hi m.” Solis stuck out his chest and gestured that he wanted to fight Garcia. Vasquez grabbed Solis’s shoul der, told him they should leave, and tried to guide him off of the patio. Solis told Vasquez, “‘No. Look, this fu cking cerote, son of a bitch, he has no balls.’” Garcia felt insulted by Solis’s use of this derogatory Salvadoran expression, meaning “piece of shit.” 4 Garcia saw Vasquez and Solis walk to the stairs leading to Solis’s apartment. Garcia felt “threatened” and “humiliated, ” and concerned that Pineda and the children were in the living room witnessing these events. Th e children were scared and crying. Garcia was “in [his own] house” and he felt he “had to defend [his] rights because [his] family was there. ” For these reasons, he walk ed inside his apartment and retrieved a nine-millimeter handgun from a drawer in the bathroom. Then he went to a

4 Garcia called as a witness Alicia Lupe r-Gallont, one of the court’s Spanish language interpreters who translated trial test imony in this case. She is from El Salvador and testified the word “cerote,” meaning “p iece of shit” or “turd,” can have a discriminatory tone and be insulting to a Salvadoran if used by a person not of Salvadoran descent.8 bedroom closet and retrieved a magazine from a jacket pocket. While in the bedroom, he loaded the gun with the magazine and chambe red a round. The magazine held 15 bullets. He placed the gun in the waistb and of his pants. Garcia re turned to his patio where he could see Solis and Vasquez st anding next to the stairwell. Vasquez was holding onto Solis’s right arm. Solis was yelling that “h e was going to beat the shit out of” Garcia. Solis shook Vasquez off of him, moved toward Garcia, and repeated, “‘I’m going to beat the shit out of you.’” Garcia felt afraid and provoked an d believed Solis “was going to attack” him. From inside his patio , he fired two shots at Solis. Solis moved
backward and fell down. Garcia remember ed “discharging the weapon” and firing at Solis “several [more] times.” Garcia denied he tried to kill Solis, st ating he did not aim for Solis’s head, but
rather shot “downwards toward the floor.” Garcia acknowledged Solis was on the ground while he was firing down at the ground and some bullets struck Solis. Garcia also
admitted: “I was so mad at that time that I was trying to teach hi m a lesson so he would not disrespect me that way.” Explaining why he con tinued to fire the gun after Solis fell to the ground, Garcia stated: “I wasn’t thinking an y more. My mind went blank. I was not thinking anything at that moment. I don’t know. Everything happen ed very fast.” Garcia added, “I wasn’t conscious anymore.” When the prosecutor as ked Garcia if he fired the gun at Solis because he was “angry with him,” Garcia responded: “It was a combination of everything all together. Fear and anger. Loss of control. I lost my mind.” Garcia stated
he “was confused.”
Garcia fled the scene in his truck and di sposed of the gun in a garbage can. He returned to his apartment the next day, pick ed up his family, and drove to Nevada where
he sold his truck. He was arrested in Nevada about a month after the shooting. Expert testimony Forensic psychiatrist Jack Rothberg, M. D., testified for the defense. The trial court appointed him to evaluate Garcia’s me ntal state at defense counsel’s request. Defense counsel asked Dr. Rothberg whether Garcia’s traumatic ch ildhood experience in9 El Salvador “might have had some role” in the shooting. Dr. Rothberg reviewed the arrest report in this case and “letters of recommendation” from Garcia’s employers, coworkers, and neighbors. The people who wrote letters expressed that the shooting “was really out of character [for Garcia] and that it was really in opposition to anything they had ever seen personally.” Dr. Rothbe rg also interviewed Garcia and Pineda. Dr. Rothberg formed the op inion Garcia suffers from post traumatic stress disorder (PTSD) resulting from the executions of his uncle and father in his presence. Thirty years after that experience in El Salvador Garcia was “still having regular flashbacks.” When Solis taunted, belittled and th reatened Garcia in his home in front of his family, “it created a sense of helplessness” in Garcia lik e the helplessness he fe lt when he witnessed
the murders of his uncle and father at his ch ildhood home. Dr. Roth berg opined Garcia’s “PTSD was reactivated in a way by these spec ific events that in his mind mirrored some of what he experienced when he was a young child.” Due to his PTSD, Garcia perceived
the situation with Solis as “ten times” more “t hreatening to him than a[n] ordinary person who did not have that [childhood] experience” in El Salvador. Garcia’s reaction to the situation with Solis was “propor tionate” to his “distorted” per ception of the situation. Dr. Rothberg believed Garcia experienced “a state of hyper alertness” during the altercation with Solis, and also “had a hyper sensitiv ity to what was going on around him.” During cross-examination, Dr. Rothberg st ated he was not aware Garcia testified
he wanted to teach Solis a lesson. Knowle dge of that testimony caused Dr. Rothberg’s opinion to change “somewhat” because Garcia’s statement “shows a little more planning” on his part regarding the shooting. Dr. Roth berg explained: “You can have the PTSD and you can have some other elements thrown into it. He was not totally out of touch with reality. So there may have been some rational elements[—wanting to teach Solis a lesson—], and there may be a great deal of distortion from his prior experiences” and the resulting PTSD.10 Character witness testimony
Jason Bardoner
Jason Bardoner worked with Garcia as a coworker and then an employer between
2006 and 2012. Garcia work ed as a part of a crew performing window installation. Bardoner was surprised to learn about the shoot ing because he knew Garcia “to be a very easy going,” peaceful, nonviolent, family man. Bardoner had never witnessed Garcia in a verbal or physical confronta tion and had never seen Garcia lose his temper. Bardoner’s opinion of Garcia would not change if he le arned Garcia had a 1996 battery conviction.
Ricardo Pineda
Ricardo Pineda is the son of Garcia’s girlfriend (Martha Pineda). He had known Garcia for 14 years. Garcia acted “like [h is] father” and was Ricardo’s role model. Ricardo knew Garcia to be a peaceful, nonvio lent man who did not get into fights and did not start problems with people. Ricardo wa s surprised to learn about the shooting because Garcia is “a calm guy” and the alterc ation with Solis “was out of character for him.” Ricardo’s opinion of Ga rcia would not change if he learned Garcia had a 1996 battery conviction.
Ricardo lived with his mother and Garcia. For three to four years, Solis lived in the apartment above them. Ri cardo heard Solis and his wife argue about twice a week.
Joanna Palma
Joanna Palma had known Garcia for 16 to 18 years. She lived in the apartment next door to Garcia and Pineda for a couple of months leading up to the shooting. She never observed Garcia being aggressive or fighting with anyone. Palma’s opinion of Garcia would not change if she learned Ga rcia had a 1996 battery conviction.
Twice a month Palma would hear noi ses coming from Solis’s apartment upstairs—shouting, a woman crying, and the sounds of items being thrown around. Verdicts and Sentencing The jury found Garcia not guilty of attemp ted murder, but guilty of the lesser offense of attempted voluntary manslaughter (count 1; §§ 192, subd. (a), 664), and also guilty of assault with a fir earm (count 2; § 245, subd. (a)(2 )). The jury further found11 Garcia personally used a firearm (§ 12022.5 , subd. (a)), and person ally inflicted great bodily injury on So lis (§ 12022.7, subd . (a)), during commission of the attempted voluntary manslaughter and assault with a firearm. On count 1, the trial court sentenced Garc ia to 18 years and six months in prison— the upper term of five years and six months fo r the offense, plus a consecutive upper term of 10 years for the firearm enhancement, pl us a consecutive term of three years for the great bodily injury enhancem ent. The court imposed and stayed the sentence on count 2—the upper term of four years for the offense, plus a consecu tive upper term of 10 years for the firearm enhancement, plus a consecutiv e term of three years for the great bodily injury enhancement. 5

DISCUSSION Duty to Instruct Jury on Unconsciousness
Garcia did not ask the tr ial court to instruct the jury on the defense of unconsciousness. On appeal, however, he c ontends the trial cour t committed reversible error in not instructing th e jury sua sponte on unconsci ousness, using CALCRIM No.
3425. This instruction states:
“The defendant is not guilty of < insert crime[s] > if (he/she) acted while
unconscious. Someone is unconscious when he or she is not conscious of his or her actions. [Someone may be unconsci ous even though able to move.] “Unconsciousness may be caused by (a blac kout[,] / [or] an ep ileptic seizure[,]/ [or] involuntary int oxication[,]/ [or] < insert a similar condition >). “The People must prove beyond a r easonable doubt that the defendant was conscious when (he/she) acted . If there is proof beyond a reasonable doubt that the

5 As the Attorney General points out, the tr ial court imposed a court security fee of $40 under section 1465.8. This statute requires the court to impose a $40 fee for each of the defendant’s convictions. (§ 1465.8, subd. (a)(1) [“To assist in funding court operations, an assessment of forty dollars ($ 40) shall be imposed on every conviction for a criminal offense”].) Garcia was convicted of two offenses. Thus, the court should have imposed $80 in court security fees. Garcia does not dispute this error. As set forth below, we modify the judgment accordingly.12 defendant acted as if (he/she) were consciou s, you should conclude that (he/she) was conscious, in which case you must find (him /her) not guilty.” (C ALCRIM No. 3425; § 26 [“All persons are capable of committi ng crimes except those belonging to the following classes: [¶] . . . [¶] Four -- Persons who co mmitted the act without being conscious thereof.”].) “In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issu es raised by the evid ence and necessary for the jury’s understanding of the case.” ( People v. Martinez (2010) 47 Cal.4th 911, 953.) A trial court’s duty to instruct sua sponte on a particular defense is “limited, arising ‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of th e case.’ [Citations.]” ( People v. Barton (1995) 12 Cal.4th 186, 195.) At trial Garcia did not rely on the defense of unconsciousness—a complete
defense to the crimes. He relie d on imperfect self-defense and, in the alternative, heat of passion. Defense counsel argued, due to his PTSD, Garcia had an unreasonable belief as to the amount of danger Solis posed and the amount of force he need ed to use to defend against the danger. Garcia’s expert, Dr. Roth berg, did not testify that Garcia would have experienced “unconsciousness” at any poin t during the shooting due to his PTSD. Defense counsel also argued Solis’s actions and comments would have inflamed the passions of a reasonable person. Defense counsel denied Ga rcia was guilty of attempted
murder but conceded Garcia was guilty of attempted volunt ary manslaughter and assault with a deadly weapon. Now, on appeal, in support of his belate d unconsciousness theory, Garcia points to his testimony explaining why he continued to fire the gun at Solis even after Solis had fallen to the ground: “I wasn’t thinking a ny more. My mind went blank. I was not thinking anything at that mo ment. I don’t know. Everythi ng happened very fast.” Garcia added, “I wasn’t conscious anymore.” When the prosecutor asked Garcia if he fired the gun at Solis because he was “angr y with him,” Garcia responded: “It was a13 combination of everything all together. Fear and anger. Loss of control. I lost my
mind.” Garcia stated he “was confused.” This testimony does not constitute substa ntial evidence demonstrating Garcia was legally unconscious at the time he fired the gu n at Solis. Garcia does not assert he was unconscious when he went inside his apartm ent and retrieved and loaded the gun after Solis and Vasquez had exited his patio. Nor do es he assert he was unconscious when he fired the first two shots after observing So lis shake off Vasquez and move toward him and hearing Solis repeat, “‘I’m going to beat th e shit out of you.’” Garcia testified he remembered “discharging the w eapon” and firing at Solis “s everal [more] times” after Solis fell down. He recalled shooting “downw ards toward the floor,” and not aiming for Solis’s head, as Solis lay on the ground. He was aware that some of the bullets struck Solis as he lay on the ground. Considering th e entirety of Garcia’s testimony, it is clear Garcia was conscious as he discharged th e gun 14 times and then fled the apartment complex. Due to PTSD, he may have had a distorted perception of the danger Solis posed, but his testimony demonstrates he was aware of his surroundings and his actions. Moreover, Garcia’s belated assertion of this complete defense to the crimes is
inconsistent with his concession at tria l that he is guilty of attempted voluntary manslaughter and assault with a firearm. For these reasons, the trial court did not ha ve a sua sponte duty to instruct the jury
on the defense of unconsciousness. Mitigating Factor of Provocation Does Not Preclude Upper Term Sentence
Garcia contends the trial court was required to find provocation as a mitigating factor precluding the upper term sentence for attempted voluntary manslaughter and the
firearm enhancement. Section 1170, subdivision (b), states: “W hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term
shall rest within the sound disc retion of the court. At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation. In determining14 the appropriate term, the court may consider th e record in the case, the probation officer’s report, other reports, including reports rece ived pursuant to Section 1203.03, and statements in aggravation or mitigation submitted by the pros ecution, the defendant, or the victim, . . . and any furthe r evidence introduced at the sentencing hearing. The court shall select the term which, in the court’s disc retion, best serves the interests of justice.
The court shall set forth on th e record the reasons for imposi ng the term selected and the court may not impose an upper term by usin g the fact of any enhancement upon which sentence is imposed under any provision of law. . . .” Under section 1170, a trial court is “re quired to specify reasons for its sentencing decision,” but is not “required to cite ‘fact s’ that support its decision or to weigh aggravating and mitigating circumstances.” ( People v. Sandoval (2007) 41 Cal.4th 825, 846-847.) We review the cour t’s sentencing decision for abuse of discretion. “[A] trial court will abuse its discretion under [section 1 170] if it relies upon circumstances that are
not relevant to the decision or that otherwis e constitute an improper basis for decision” (e.g., waiver or exercise of right to jury trial, defendant’s alienage). ( Id . at p. 847.) In preparation for the sentencing heari ng, the trial court reviewed the probation report, which recommended an u pper term sentence. The court also reviewed the parties’ sentencing memoranda. In his memorandum, Garcia requested the court impose the low
term on the offense and the middle term for th e firearm enhancement. Garcia argued the mitigating factors—that Solis provoked the inci dent and Garcia reacted in the manner he
did due to his PTSD—far outwei ghed the aggravating factors. Garcia listed his use of a firearm and infliction of great bodily injury on Solis as aggravating factors. Garcia attached letters and investigative reports regarding his good character and nonviolent nature, and Solis’s “loud and rude” nature. The People’s sentencing memorandum re quested the trial court impose the upper
term on the offense and the firearm enhancemen t. The People listed several factors in aggravation, including that the victim wa s vulnerable (unarmed, walking away from Garcia’s home, and lying on the ground after Garcia fired the first two of 14 shots), and that the crime involved great violence and a high degree of cruelty, viciousness and15 callousness. The People also argued Garcia’s crimes s howed planning and sophistication, pointing to Garcia’s testimony that he wanted to teach Solis a lesson and the fact Garcia went inside his apartment to retrieve and load the gun and chamber a round before returning to th e patio. The People further argued Garcia engaged in a pattern of violent conduct indicating a serious danger to society in that he fired 14 rounds in an apartment complex, w ith one of those rounds enteri ng his neighbor’s apartment. The People disputed Solis’s provocation was sufficient to mitigate the shooting, but acknowledged Garcia’s “insignificant record of criminal conduct” was one mitigating
factor. At the sentencing hearing, Solis and his mother addressed the court with victim impact statements. Pineda and her da ughter spoke in support of Garcia. Before imposing sentence, the trial cour t engaged in a lengthy discussion of the
facts and circumstances of the case and the a ggravating and mitigating factors. The court
noted Solis taunted Garcia and Garcia felt hu miliated and threatened. Garcia indicated he
wanted to teach Solis a lesson. He also indi cated “[h]e became very mad” and “started to heat up.” Garcia went inside his apartmen t, retrieved and loaded a gun, brought it outside, and fired 14 rounds at close range up on an unarmed man who was disabled after a couple of shots. Garcia did not render aid. He fled the state and attempted to avoid
detection. The court found the callous an d violent nature of the crimes was an aggravating factor.
The trial court did not fi nd Garcia’s minor criminal record to be a mitigating factor, but rather a neutral factor. The cour t recalled Garcia had theft and driving under
the influence convictions. In discussing provocation, the trial court stated: “He [Garcia] was provoked. Was it great provocation, was the question. People get into heated arguments all the time. They say terrible things to one another. I think most judges would tell you most acts of violence arise out of neighbor di sputes. It’s just the way pe ople are. But in terms of mitigation, as I look through the codes and rule s of court, the question is whether or not the defendant was responding to great provocati on. And I don’t think that he did. I don’t16 think that the level of provocation was such that it even approximates the response, even remotely. Mr. Garcia had an opportunity to go into his house and close the door and
fume inside of his house. If that were the ca se, then his [step]daught er would not have to come here and sob over the consequences th at might befall her father. This incident would never have happened. [¶ ] Your memorandum points to something different. It’s suggesting that had there not been taunting, th is incident would not have happened. That could very well be true as well; but the res ponse to the taunting wa s so over-the-top in terms of what normal people would expect in a law-abiding society that the provocation element does not sufficiently satisfy the court as a factor in mitigation.”
The trial court stated it had consid ered PTSD, and believed the jury had
considered the evidence of PTSD in finding Garcia guilty of attempted voluntary manslaughter instead of attempted murder. In “balancing” the aggravating and mitiga ting factors, the trial court imposed the upper term of five years and six months for the offense, finding the following aggravating factors: “[T]he crime did involve a great degree of violence and . . . his conduct disclosed a callousness and cruelty towards an unarmed victim who was vulnerable to that type of assault and nearly died.” The court also imposed the upper term of 10 years for the firearm enhancement, finding the fo llowing factors in aggravation: “the significant number of rounds that were actually discharged by Mr. Garcia into and at the victim,” at close range, placi ng others in danger as eviden ced by the round that entered his neighbor’s apartment. Finally, the cour t imposed the three-year term for the great bodily injury enhancement. Thus, the court sentenced Garcia to the maximum term of 18 years and six months. When defense counsel objected to the im position of the upper term sentence and highlighted factors in mitigation (provocati on, Garcia’s character, and PTSD), the trial court responded: “[I] have taken into consideration those mitigating factors that you have mentioned; and in my view, they are substa ntially outweighed by the defendant’s conduct that night. And, as I previously said, th e aggravating factors in my view outweigh the mitigating factors.”17 We review the trial court’s decision to impose the upper term for abuse of discretion. ( People v. Sandoval
, supra , 41 Cal.4th at p. 847.) In acco rdance with section 1170, the court stated appropriate reasons for imposing the upper term. The court acknowledged the evidence of provocatio n, PTSD, and Garcia’s good character, but found these factors did not outweigh the factor s in aggravation, including the violent and callous nature of the offense, the vulnerability of Solis, and the serious danger in which Garcia placed other members of the commun ity. The court acknowledged Garcia was provoked, but found that provocation was not sufficient to warrant imposition of a middle or low term sentence given the other facts an d circumstances of the crimes—going inside to retrieve and load a gun an d then returning outside, firing 14 rounds at an unarmed man at close range, continuing to fire numerous ro unds at him as he lay defenseless on the ground, and placing neighbors in serious danger. We have no cause to disturb the trial
court’s decision.
No Dual Use of Facts in Imposing Sentence Garcia contends the trial court improper ly used the same fact—great violence—to impose the upper term on the offense, to im pose a consecutive upper term on the firearm enhancement, and to impose a consecutive term for the great bodily in jury enhancement. He asserts: “The base term’s great viol ence was part and pa rcel of the gun use enhancement aggravated for the significant nu mber of rounds actually discharged at and into Solis and the enhancing great bodily in jury inflicted on him. Reliance on the great violence towards Solis to aggravate the base term was a prohibited dual (triple) use of fact when an upper 10-year weapon use was aggravated for the significant number of rounds discharged at and into Solis and the 10-year upper we apon use and a 3-year great bodily injury enhancement were a dditionally imposed consecutively.” Garcia acknowledges his counsel did not object on these grounds below. Thus, he has forfeited this claim. ( People v. Scott (1994) 9 Cal.4th 331, 356; People v. de Soto (1997) 54 Cal.App.4th 1, 7-8.) We nonethel ess address the claim on the merits because
Garcia asserts an ineffective assistance of co unsel claim based on his counsel’s failure to object regarding dual use of facts.18 “In exercising his or her discretion in se lecting one of the three authorized prison
terms referred to in section 1170(b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other fa ctor reasonably related to the sentencing
decision. The relevant circumstances ma y be obtained from the case record, the probation officer’s report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at th e sentencing hearing.” (Cal. Rules of Court, rule 4.420(b).) The trial court did not err in imposi ng the upper term, and counsel was not ineffective in failing to object to the court’ s statement of reasons for imposing the upper
term. One of the reasons the court stated fo r imposing the upper term for the offense was the vulnerability of the victim. (Cal. Rules of Court, rule 4.421(a)(3).) One of the reasons the court stated for imposing the uppe r term on the firearm enhancement was that Garcia placed members of the community, ot her than the victim, in serious danger by discharging the gun in an apar tment complex, as evidenced by the fact a round entered a neighbor’s apartment. “Only a single aggravating factor is required to impose the upper term.” ( People v. Osband (1996) 13 Cal.4th 62 2, 728.) The trial court imposed the great bodily injury enhancement afte r the jury found the special allegation to be true based on the evidence of Solis’s injuries (set fort h in detail above). The trial court was not required to state a reason for imposing the thr ee-year term, the only term provided in the statute. Nor was the court required to st ate additional reasons for imposing consecutive terms on the enhancements, as Garcia seems to suggest.19 DISPOSITION The judgment is modified to reflect th e imposition of $80 in court security fees pursuant to section 1465.8 ($ 40 for each of the two convictions). As so modified, the judgment is affirmed. The clerk of the superi or court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED.

CHANEY, Acting P. J.

We concur:

JOHNSON, J.

MILLER, J. *

* Judge of the Los Angeles Superior Cour t, assigned by the Ch ief Justice pursuant to article VI, section 6 of the California Constitution.