1 Filed 5/29/14 P. v. Williams CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT (Sacramento)

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THE PEOPLE, Plaintiff and Respondent,

v. JOSEPH RAHEEM WILLIAMS, Defendant and Appellant. C068754 (Super. Ct. No. 08F01226)

Defendant Joseph Raheem W illiams shot and killed a man in front of a hotel. Law enforcement apprehended him several days later, read him his Miranda 1 rights and
interviewed him.

1 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] ( Miranda ).2 The People charged defendant with murd er and being a fel on in possession of a firearm. At trial, defendant asserted sel f-defense. A recording of the police interview was played to the jury . The jury found defe ndant guilty of voluntar y manslaughter and of possessing a firearm. The trial court imposed the maximum sent ence of 11 years for manslaughter, 10 years for a firearm enhancemen t and one year for a prior prison term, suspending an eight-month term for firearm possession. Defendant now contends (1) the pros ecutor committed misc onduct during closing argument; (2) the trial court erred in admitting defendant’s interrogation statements to the police in violation of Miranda, supra, 384 U.S. 436 [16 L.Ed.2d 694]; (3) his failure to respond to certain police questions wa s used against him in violation of Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91] ( Doyle ); and (4) in sentencing defendant, the trial court ignored the jury’s findings, failed to consider mitigating fact ors and demonstrated
animus toward defendant. We conclude (1) the prosecutor’s comme nts were a legitimate response to the evidence, and we presume the ju ry followed the trial court’s in structions rather than the prosecutor’s arguments; (2) based on the to tality of the circumstances and giving deference to the trial court’s findings of fact , defendant’s statements in the interrogation could be interpreted by a reasonable police o fficer as expressions of frustration rather than an invocation of the right to remain silent, and defendant did not effectively invoke
his Miranda right to halt the questioning; (3) a ny error in allowing the prosecutor to comment on the recorded interrogation st atement was harmless beyond a reasonable doubt; and (4) in sentencing de fendant, the trial court did not err and did not abuse its
discretion. We will affirm the judgment.3 BACKGROUND Lashaun Blake was celebrating her 17th birthday with friends at the Double Tree Hotel. In another room, Alex Hunter was ce lebrating his 21st birthday with his siblings
and friends. Defendant and “Goldie” Benoit had joined the party of teenage girls because they knew Blake’s boyfriend. Benoit, defend ant and two of the girls made a trip to a nearby convenience store in Benoit’s car. At about the sa me time, Hunter, his brother and their two sisters were walking toward thei r cars. Benoit was “driving crazy” as he prepared to park his Ford Taurus. After yelling at the Hunter group to move, Benoit narrowly missed hitting them with the car. As defendant and Benoit got out of the car, there was an exchange of heated words. Hunter followed defendant’s group as they walked away, challenging them to fight. Defendant responded to Hunter’s unexpected tap on the shoulder by turning and shooting him at a range of less than three to four feet, killing him with a single gunshot wound to the chest. Defendant and Benoit ran away. Police arrested defendant several days later and questioned him. During the interrogation, defendant said only that he “didn’ t do the shooting.” At trial, he asserted self-defense, saying he believed the victim had a gun and was thre atening him when he pulled the trigger. The trial court denied defendant’s motion in limine to exclude evidence from defendant’s interrogation and th e jury saw a video recording of it. The jury found defendant not guilty of murder but convicted him of voluntary manslaughter. The jury also found true the allegation that defendant personally used a
firearm. The trial court sentenced him to an aggregate of 22 years in prison. Additional
facts are included in the discussion as relevant to the contentions on appeal

. DISCUSSION
I Defendant contends the prosecutor e ngaged in misconduct by suggesting in closing argument that defendant’s claim of se lf-defense had to be rejected because the4 victim did not have a gun. Defense counsel promptly objected to the argument, but the trial court overruled the objection and refused to admonish the jury. Defendant argues this was sufficient grounds for the mistrial he sought in the trial court and for reversal on appeal.
Prosecutorial misconduct violates the Fo urteenth Amendment when it “ ‘infects
the trial with such unfairness’ ” as to make the conviction a denial of due process. ( People v. Cole (2004) 33 Cal.4th 1158, 1202.) Even if the conduct does not reach that level, it may violate California law if it involve s “ ‘the use of deceptive or reprehensible methods to attempt to persuade ei ther the court or the jury.’ ” ( Ibid .) Regarding closing arguments, “It is within the domain of leg itimate argument for a prosecutor to state his
deductions or conclusions drawn from the eviden ce and to relate to the jury that, in his opinion, the evidence show s that the defendant is guilty of the crimes charged, unless his statements are not based upon le gitimate evidence or are to th e effect that he has personal knowledge of the defendant's guilt.” ( People v. Calpito (1970) 9 Cal.App.3d 212, 223, citing People v. Dillinger (1968) 268 Cal.App.2d 140, 144 .) It is not proper, however, for a prosecutor to misstate the law or reso rt to personal attacks on the integrity of opposing counsel. ( People v. Bell (1989) 49 Cal.3d 502, 538.) Here, defendant claims the prosecutor “implied a lower burden of proof” and shifted the burden of proof to defendant. Noting that not a single witness said the victim had a gun, the prosecutor argued: “Why is it so important to the defense that [the victim] have a gun? Because that’s the one way they are trying to create this situation where it could be justified to use a gun on an unarmed pe rson. It is not justified to shoot down an unarmed person. That is not what self-def ense is all about.” Defendant immediately objected, saying the argument misstated the law. The trial court overruled the objection.
One element of self-defense is a reasona ble belief that a person is in “imminent danger of being killed or suffe ring great bodily injury.” (CALCRIM No. 505 .) The jury was so instructed. The law recognizes, of cour se, that great bodily injury can be inflicted5 without a firearm. ( People v. Aguilar (1997) 16 Cal.4th 1023 , 1035 [finding the key inquiry in an aggravated assault convictio n is the nature of the force applied by a defendant, not whether he used a weapon].) Defendant testif ied that the victim claimed to be a “UFC fighter,” which defendant und erstood to mean someone who fights in a cage for money or sport. 2 Defendant contends the prosec utor’s statement impermissibly led the jury to conclude that defendant had to prove the victim had a gun, instead of the prosecutor having to prove that defendant did not act in self-defense. On review of alleged misconduct in a closing argument, we must examine the context of the argument as a whole. ( People v. Cole, supra , 33 Cal.4th at p. 1203.) In this case, defendant contended that, at the very beginning of the conf lict, the victim threw up his hand and raised his shirt to “flash[]” a gu n. He went on to testify that he did not know why, but the victim followed him as de fendant and his friends tried to make their way back to their hotel room . He said the victim persisted in demanding a fight and saying something about a gun. Defendant said he was trying to avoid a fight by walking away in the moments before he shot the vic tim. But as defendant reached the stairs, he said he felt a pull on his left shoulder as th e victim turned him around and suddenly they faced one another at very close range. He said he did not intend to shoot anybody, but “[i]t just happened.” He said he did not want the victim to sh oot him or pistol-whip him. Following the defense objection, the pr osecutor continued his closing argument, pointing out that although the vi ctim’s actions were not consis tent with having a gun, he did talk about fighting, calli ng defendant and his friend cowa rds. The prosecutor said, “Again, no one is excusing his beha vior. He is being a jerk that night. If he would have let it go, he’d still be alive, but he didn’t. But he didn’t ever talk about having a gun. No

2 The parties stipulated that the ultimate fighting championship or UFC is sponsored by MMA, the world’s premier mixed martial arts organization, a nd that it features men who engage in boxing, wrestling, judo and other martial arts.6 one heard him say I’m going to shoot you. He talked about fighting.” The prosecutor rhetorically asked whether the victim would not have just pulled the gun out if he had one, instead of tapping defendant on the should er to say, “I’m talking to you,” as one
witness had testified. Moments later, the prosecutor continued, “As far as the stand your ground, I mean, that’s the law. . . . But if you stand your ground, you still are lim ited to using the force that is necessary under the circumstances, you know, to meet the threat. You can’t use any more force than is necessa ry to meet the threat, even when you are standing your ground.” He went on, “the poi nt I was making earlier in my first argument is that you still cannot use any more force than is necessary . [¶] So the decision you have to make
then . . . is whether or not the defendant actu ally, actually felt that he was in imminent danger of death or great bodily injury requiring the immediate use of force.” The prosecutor accurately defined the jury’s decision as “whether or not the defendant actually, actually felt th at he was in imminent danger . . . of great bodily injury requiring the immediate use of force.” A ddressing the statement to which defendant objected once more, he continue d, “And, you know, you can feel that way if another person isn’t armed. I mean, that ’s -- that’s -- if I misspoke be fore, that is true, you can be in that position where you feel like you have to use deadly force because you feel like you are actually in imminent danger of death or great bodily injury requiring the use of immediate force. The other person doesn’t ha ve to be armed for you to meet that point, obviously.” Defendant claims the prosecutor “did not clarify his previous misstatement” because he did not make it “explicitly clear” th at defendant’s shooting could be justified even if the victim did not have a gun. He fu rther contends that the trial court abused its discretion when it “implicitly endorsed” the miss tatement by overruling defendant’s objection.7 We disagree. As we just recounted, defe ndant testified that, at the time he pulled the trigger, he feared being shot or pistol -whipped by the victim. The prosecutor’s
comments about the reasonableness of defendant’s fear were legitimately part of closing argument. In context, the prosecutor’s si ngle statement about shooting an unarmed man was not likely to be perceived as an explana tion of the law of self-defense but as an
attack on the reasonableness of the defense theory and the eviden ce supporting it. Moreover, we presume that the jury relied on the instructions of the trial court, not the arguments of counsel. ( People v. Morales (2001) 25 Cal.4th 34, 47.) The jury was instructed to follow the law as explained by the trial court and was told, “If you believe that the parties’ comments on the law conflict with my instructions , you must follow my
instructions.” Defendant has asserted no ob jection to the self-defense instruction, CALCRIM No. 505. The prosecut or’s statement did not infect the trial with unfairness so as to deprive defendant of due process, nor did it employ deceptive or reprehensible methods to persuade the jury.
We find no merit in de fendant’s contention that the trial court “implicitly
endorsed” a misstatement of law simply by overruling a defense objection. The instruction was correct and any misstatemen t by the prosecutor was corrected by the prosecutor and addressed agai n by defendant’s closing ar gument. Among other things, defense counsel argued in closing that the law clearly and undoubtedly gave defendant
“an entitlement to use self-defen se” to avoid “great bodily in jury, if not being shot.” Defense counsel said “any reasonable person ” under the circumstances would believe they were in imminent danger of death or great bodily injury, and he emphasized that even if the victim was not a fighter and di d not have a gun, defendant was entitled to
defend himself if his belief about the threat was reasonable at the time. The jury found defendant not guilty of murder, which is inconsistent w ith defendant’s claim that they may have adopted the prosecutor’s statemen t that shooting an unarmed man was never justified. There was no prosecu torial misconduct and no prejudice.8 II
Defendant next contends hi s conviction must be reversed because the trial court erroneously admitted evidence that violated his Miranda rights. The police arrested defendant a few da ys after the shooting and questioned him later that day. Before trial, defendant m oved to exclude the inte rrogation on the ground that he had asserted his constitutional right to remain silent by no t answering pertinent questions. The trial court denied the motion a nd allowed the jury to see a video recording of the police interview. After reviewing a tr anscript and listening to the recording, the trial court found that the interviewing detec tive gave defendant appropriate warnings at
the start of the interview and defendant affirmatively responded that he understood them. The record supports the trial court’s conclu sion that defendant’s waiver was knowing, intelligent and voluntary. Defendant argued that even if his initial waiver was eff ective, he invoked his right to cut off questioning by not an swering questions about the crime or by giving only evasive answers to questions about the crime. But the trial court found that defendant interspersed silence with numerous respon ses and did not clearly communicate to the
detective that the interview was over. The tr ial court found defendant “never invoked his right to remain silent” and, because the statements were volunt ary, they could be
admitted into evidence. Afte r the ruling, defense counse l urged the trial court to reconsider a segment of the in terview in which defendant said to the detective, “I don’t wanna talk about that, bro.” The trial court determined that the ph rase referred to the subject of the police chase preceding defendant’ s arrest, although de fendant urged that it
related to the crime. Defenda nt raised the issue again af ter opening statements and the trial court agreed to accept his objection as continuing through out the trial.
The Fifth Amendment of the United Stat es Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself” and the
Fourteenth Amendment extends this right to state criminal prosecutions. ( Malloy v.9 Hogan (1964) 378 U.S. 1, 12 [12 L.Ed.2d 653, 662].) Miranda warnings implicitly promise there will be no penalty for exer cising the right to remain silent. ( Doyle, supra, 426 U.S. at pp. 618-619 [49 L.Ed.2d at p. 98].) “A person who in itially waives his or her
Miranda rights retains the right to cut off further police interrogation.” ( People v. Lopez (2005) 129 Cal.App.4t h 1508, 1526.) The question presented is whether defendan t asserted his right to remain silent after the interview began or whether he was ju st selectively evasive. “[T]he admissibility of statements obtained after the person in cu stody has decided to remain silent depends
under Miranda on whether his ‘right to cut of f questioning’ was ‘scrupulously honored.’ ” ( Michigan v. Mosley (1975) 423 U.S. 96, 104 [46 L.Ed.2d 313, 321], fn. omitted [quoting Miranda, supra , 384 U.S. at pp. 474, 47 9 [16 L.Ed.2d at pp. 723- 724, 726]].) A California court has held th at there is “ ‘no right to remain silent selectively’ ” after a Miranda waiver ( People v. Hurd (1998) 62 Cal.App.4th 1084, 1093), but a federal court deemed that deci sion “incorrectly and unreasonably applied [to] clearly established law.” ( Hurd v. Terhune (9th Cir. 2010) 619 F.3d 1080, 1089.)
The Ninth Circuit determined that the right to silence pe rtains independently to each question posed. ( Id . at p. 1087) There is no defi nitive Supreme Court guidance on the extent to which interrogation evidence is admissible when a defe ndant answers some questions but not others. ( People v. Bowman (2011) 202 Cal.App. 4th 353 364 [listing cases illustrating split of authority].) On review, we accept the trial court’s reso lution of disputed facts and inferences if they are substantially supporte d by the evidence, before applying federal standards to independently determine whether a challenged statement was elicited in violation of
Miranda . ( People v. Bradford (1997) 14 Cal.4th 1005, 1032 -1033.) “In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect ‘must unambiguously’ assert his right to silence or counsel.” ( People v. Stitely (2005) 35 Cal.4th 514, 535, citing Davis v. United10 States (1994) 512 U.S. 452, 459 [129 L.Ed.2 d 362, 371].) To determine whether there was an unambiguous assertion of the privile ge after an initial waiver, we review the totality of the circumstances and the cont ext of the words a defendant has used. ( People v. Musselwhite (1998) 17 Cal.4th 1216, 1238 .) Doing this, we employ an objective standard, that is, whether a reasona ble police officer would have understood the defendant’s statements to require i mmediate cessation of questioning. ( People v. Nelson (2012) 53 Cal.4th 367, 376-378, citing Davis v. United States, supra, 512 U.S. 452, 459 [129 L.Ed.2d 362, 371] and Berghuis v. Thompkins (2010) 560 U.S. 370 [176 L.Ed.2d 1098].) Expressions of frustration or anim osity do not invoke the right to silence. ( People v. Williams (2010) 49 Cal.4th 405, 434 [“ ‘I don’t want to talk about it’ ” was not an invocation].) In this case, a few minutes after issuing Miranda warnings, the detective said, “Do you know why you’re here?” and offered an explanation to which defendant did not respond. After the detective continued, sayi ng several people identified defendant as the “shoot[er]” at the hotel, defenda nt responded with a minute-long silence, then said, “Got a little bed in this joint?” After a colloquy about defendan t being tired from the police chase at the time of his arrest, the det ective asked, “What did you do on Saturday, Joseph?” Defendant responded, “I’m gonna go right back on the ground to sleep.” When defendant repeated the statement, the detective reflected that, if defendant went to sleep, they would not “get very fa r on what we’ve got to talk about,” to which defendant replied, “I don’t wanna talk about that, bro.” After a brief and largely unintelligible exchange about the chase, the detective said, “I’ll let you sleep a little bit,” and left fo r about 20 seconds; when he returned, there
was a brief conversation in whic h defendant said he wanted to go to jail and the detective said he would be taken to ja il after unnamed others had been interviewed. The detective left again for two minutes, returning with photographs. Defendant acknowledged a photograph of the victim, saying he had “see n him around,” then asked again to be taken11 to jail. The detective said, “Oh you will [ but] what you go to ja il for [depends] on how this plays out,” and showed defendant more photographs. Defendant looked at the photographs but deflected questions. A few mi nutes later, the detective pointedly asked, “Did you not shoot the guy or did you shoot the guy?” to wh ich defendant responded, “I didn’t do the shooting.” For 13 minutes, defendan t evaded and deflected the detective’s follow-up questions, alternating silence, mumbling, sayi ng he was sleepy and as king to be taken to jail, but never actually responding or assertin g his rights; the detective finally confirmed defendant had nothing to say and just wanted to go to sleep. In the midst of the detective’s follow-up questions , defendant twice asked, “This even legal?” to which the detective responded, “We wouldn’t do it if it wa sn’t legal. We’re the police.” The entire
interview lasted about 30 minutes.
The trial court reviewed the recorded interview and concluded from defendant’s bantering that “this defendant has apparently extensive contact w ith law enforcement” and had the “clear ability to communicate to the detective th at the interview was over” but “did no such thing.” The trial court conc luded that the statement “I don’t wanna talk about that, bro” referred to the chase precedi ng defendant’s arrest, not the shooting. Evaluating the totality of the circumstances and giving defe rence to the trial court’s findings of fact, we conclude that defend ant’s statements could be interpreted by a reasonable police officer as expressions of fru stration rather than an invocation of the right to remain silent. (See People v. Rundle (2008) 43 Cal.4th 76, 115, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 [right to silence not invoked by expressions of frust ration or animosity or refusa l to discuss a particular subject]; People v. Silva (1988) 45 Cal.3d 604, 630 [same] .) We conclude defendant did not effectively invoke his Miranda right to halt the questioning.12 III Defendant contends that, even if his Miranda rights were not violated, the trial court violated his constitutional rights by allo wing the prosecutor to show the jury his postarrest interview and describe his nonanswers as proof of guilt.
In Doyle , supra , 426 U.S. 610 [49 L.Ed.2d 91], the United States Supreme Court said “every post-arrest silence is insolubly ambiguous” due to the assurances implicit in
the Miranda warnings that silence will carry no penalty. ( Doyle , supra , 426 U.S. at pp. 617-618 [49 L.Ed.2d at pp. 97-98].) Impeaching a defendant with his post- Miranda
silence is a violation of th e due process clause of the Fourteenth Amendment. ( Id . at p. 619 [49 L.Ed.2d at p. 98].) Post- Miranda silence may not be us ed as evidence of guilt during the prosecution’s case-in-chief. ( People v. Coffman and Marlow (2004) 34 Cal.4th 1, 118; People v. Cockrell (1965) 63 Cal.2d 6 59, 669.) Similarly, nonanswers by a suspect in custody may not be used as adoptive admissions. ( People v. Lopez, supra, 129 Cal.App.4th at p. 1526 [curse preceding request for counsel]; ( Hurd v. Terhune,

supra, 619 F.3d at pp. 1088-1089 [refusal to demonstrate shooting].) Silence at the time of arrest is not especially probative and has a high risk of causing prejudice that is not likely to be overcome by explanation. ( United States v. Hale (1975) 422 U.S. 171, 180 [45 L.Ed.2d 99, 107].)
“Under the rationale of Doyle, due process is violated whenever the prosecution uses for impeachment pur poses a defendant's post- Miranda silence.” ( Brecht v.
Abrahamson (1993) 507 U.S. 619, 629 [123 L.Ed. 2d 353, 367].) Trial error arising from
a defendant’s exercise of the ri ght to remain silent is eval uated under federal standards,
so it is reversible unless it is ha rmless beyond a reasonable doubt. ( Chapman v. California (1967) 386 U.S. 18, 21, 24 [17 L.Ed .2d 705, 709, 710-711].) When a defendant responds to some questions during a police interview and does not unambiguously invoke his right of s ilence, the silence does not trigger Doyle unless the
circumstances lend themselves to an inference that silence or evasive replies were made13 in reliance on the Fifth Amendment. ( People v. Bowman, supra, 202 Cal.App.4th at pp. 364-365.) In this case, the context was a postarrest interrogation, so refusal to discuss the shooting may very well have been based on the Fifth Ame ndment, particularly given that defendant asked, “This even legal?” af ter repeated attempts by the detective to provoke a response from him. The People argue that a criminal defend ant should not be allowed “to engage law enforcement [after waiving Miranda ] and then claim that flippant and evasive answers
were in fact in ‘s ilence’ in reliance on Miranda .” They contend the prosecutor’s reliance on the interrogation was justified because defe ndant was trying to use evidence of his
silence and evasion as a sword instead of a shield, as that concept was explained in People v. Champion (2005) 134 Cal.App.4th 1440 ( Champion ). The People argue the prosecutor focused on defendant’ s actual responses and demeanor during the interview,
which was consistent with the detective’s warning that whatev er he said could be used against him and was a fair response at tr ial to his claim of self-defense. Champion involved a prosecutor’s reference to a defendant’s postarrest silence as a fair response to defendant’s trial clai m that “no one would listen to him.” ( Id . at pp. 1448, 1450.) Here, however, defendant testified that he ac ted in self-defense, not that no one would listen to him. Highlightin g defendant’s failure to tell the police investigator defendant acted in self-d efense was not a fair response under Champion. During opening statement, the prosecutor pointed out that, in response to hearing about the evidence against hi m during the police intervie w, defendant’s recorded response was, “How long I been here for?” and “Got a little bed in here?” “I’m gonna go right back on the ground to sleep.” The pros ecutor noted that defendant never responded, “[T]he victim had a gun” or “I had to shoo t to defend myself.” The interview was not mentioned on cross-examination. During clos ing argument, the prosecutor said, “Think about his attitude, his demeanor on that tape [¶ ] . . . [¶] [a]nd if you watch that tape, just days after he shot this person, you can see th rough [his] attitude that he’s a cold-blooded14 killer. He has no remorse. He’s not feeling bad about it. He’s not showing any fear. . . . [¶] . . . [¶] Don’t you have an ything to say about what happened? . . . [¶] . . . I’m going to lay down here on the floor . . . . He ha d killed a man five days earlier, shot him down and that’s his attitude. No remorse, no fe ar, definitely didn’t have any self-defenses going on.” As we explained in part I, ante , a prosecutor may state his own conclusions from the evidence during closing argument and relate his belief that the defendant is guilty. ( People v. Calpito, supra , 9 Cal.App.3d at p. 223.) Bu t a prosecutor may not convert a defendant’s silence during a police intervie w into a tacit admission of guilt if the defendant has invoked his right to re main silent or seek counsel. ( People v. Andrews (1970) 14 Cal.App.3d 40, 47.) The prosecuto r’s comments suggested that defendant’s failure to tell police he was defending hims elf proved he was not . If defendant had unambiguously cut off questioning or otherwise cl early asserted his right to remain silent,
the evidence would have been inadmissible under Doyle . But as we explained in part II, he did not. In fact, at trial, defendant sa id he was evasive because he did not trust the
detective and did not want to talk to him. In any event, it is not necessary to d ecide whether a series of evasive answers punctuated by silence ought to be excluded from evidence under Doyle, because we conclude that, in this case, any error in admitting or allowing co mment on the recorded interview was harmless beyond a reasonable doubt.
The constitutional harmless e rror standard is “ ‘not whet her, in a trial that occurred without the error, a guilty verd ict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattri butable to the error.’ ” ( People v. Quartermain (1997) 16 Cal.4th 600, 621, quoting Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [124 L.Ed.2d 182, 189].) Defendant admitted th at he was carrying a gun on the night of the shooting, even though he knew there was a warrant for his arrest and he could not legally possess a gun. He said he had the gun with him because he15 expected to return it to its ow ner who was “usually . . . aro und” when there were girls and drugs. He admitted that he spent the ev ening drinking, smoking marijuana, snorting cocaine and “popping” Ecstas y pills while “shooting dice” and listening to music. Defendant said the victim “flashed” a gun in his waistband from a distance of 30 or 40 feet but, as he approached, th e victim appeared to want a fistfight, not a gun battle. The victim did not actually have a gun and defendant admitted his vision was poor. Defendant said he was “high” and was just tr ying to get away when the victim pulled his shoulder and was suddenly facing him. He sa id he did not have it in his mind to shoot anybody but he did acknowled ge shooting the victim.
The trial court instructed the jury that either heat of passion or imperfect selfdefense could reduce the murder charge to voluntary manslaught er. It also instructed the jury that if defendant believed there was im minent danger, the belief “must have been reasonable,” that a person is “only entitled to use that amount of force that a reasonable person would believe is necessa ry” and if defendant used mo re force than was necessary, “the killing was not justified.” The jury’s verdict of manslaughter, but not murder, indicates that defendant persuaded the jury he was provoked or that his fear of imminent danger was reasonable, despite his failure to a ssert self-defense in the police interview. But the jury also must have concluded that he used more force than was necessary. Given defendant’s own testimony that the vi ctim was spoiling for a fistfight, suddenly shooting him in the chest at close range was an excessive response that necessarily would have rendered the killing “not justified,” regardless of how the defendant’s demeanor during the police interview was construed. The guilty verdic t was “surely unattributable to” the admission of the interrogation evid ence. Any error was harmless beyond a
reasonable doubt.16 IV In addition, defendant cont ends the trial court erred in sentencing him because it ignored the jury’s findings, failed to consider mitigating factors and demonstrated animus
toward him.
A trial court has broad discretion in se ntencing, but it must orally announce its reasons to encourage the careful exercise of th at discretion and to enable parties to seek an immediate clarification or change in the ev ent of errors or omissions in its reasoning. ( People v. Scott (1994) 9 Cal.4th 331, 351.) Claims that a trial court weighed sentencing factors incorrectly or failed to give a suffici ent number of valid reasons for the sentence
cannot be considered for th e first time on appeal. ( Id. at pp. 352-353.) Here, defendant asserts for the first time on ap peal that the trial court’s sentencing reasons were improper or insufficient. Defendant did not object to the sentence when it was imposed and did not assert judicial animus or judicial misconduct in the tria l court. Accordingly, his contention is forfeited. ( People v. Sturm (2006) 37 Cal.4th 1218, 1237.) Acknowledging his failure to object, de fendant contends that his presentencing argument against the upper term preserved th e claim and, in any event, an objection
would have been futile. Even if that were true, the record does not support defendant’s assertion that the trial court ignored the ju ry’s findings, failed to consider mitigating
factors or demonstrated animus toward defendant. In claiming that the trial court consider ed facts not found by the jury, defendant points to a reference in the probation report indicating that defendant said he “probably
would have shot the victim s ooner if he had been sober.” The trial court commented that the statement was “[u]ndoubtedly” true and th at it “is a common tale in Sacramento.” Defendant also argues the trial court “implie d” that it was ignoring the verdict by noting that the jury considered victim provoc ation when it found defendant guilty of manslaughter but not murder. He contends the trial court’s statement that the jury gave
defendant “a tremendous break in view of a ll the surrounding circum stances” proves that17 the trial court believed defendant committed mu rder and improperly made the sentencing
decision on that basis. The trial court apparently found the fact s of this case abho rrent and minced no words in explaining the senten ce, but even if defendant had preserved an objection to the sentence, we would find no abuse of discretion. (See People v. Scott, supra, 9 Cal.4th at p. 349 [standard of review].) Any “factor reasonably related to the sentencing” may be considered in selecting an authorized se ntence, including evidence in the probation report. (Cal. Rules of Court, rule 4.420(b).) Some of the aggravating factors that may be considered in imposing sentence include grea t violence, use of a weapon and conviction of other crimes. (Cal. Rules of Court, rule 4.421(a).) In sentencing defendant, the trial court articulated various aggravating and mitig ating factors. Any one of the aggravating factors would have sufficed to justify the maximum sentence. ( People v. Yim (2007) 152 Cal.App.4th 366, 369.) In mitigation, the trial court considered that defendant was only 23 years old and that the crime was unlikely to recur because of the victim’s provocation. Nonetheless, it concluded the aggravating fact ors far outweighed the mitiga ting factors. The probation report recommended the maximum term because defendant was on parole at the time of the crime. Among other thi ngs, the trial court noted that the crime involved great violence and great bodily harm, that defendant had engaged in a “continuous pattern of crime from the age of 12,” that he had a prior prison term, that he was on parole, and that18 he had a poor parole record. The trial cour t did not abuse its discretion in sentencing
defendant.
DISPOSITION The judgment is affirmed.

MAUR O , J.

We concur:

BUTZ , Acting P. J.

MURRAY , J.