Filed 11/12/15 P. v. Norton CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,
Plaintiff and Respondent,

v.

MICHAEL R. NORTON,

Defendant and Appellant

. B257084
(Los Angeles County Super. Ct. No. MA059084)

APPEAL from a judgment of the Superior Court of Los Angeles County, Daviann L. Mitchell, Judge. Affirmed in part, r eversed in part, and remande d

. Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant

. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Superv ising Deputy A ttorney General, Michael Katz, Deputy Attorney General, for Plaintiff and Respondent.2 INTRODUCTION A jury convicted defendant and appellant Michael Norton of voluntary manslaughter (Pen. Code, § 192, subd. (a) 1 ) and found true the allegat ion that defendant personally used a firearm in the commission of the offense ( § 12022.5). The trial court sentenced defendant to a term of 21 years in state prison, consisting of the upper term of 11 years for the manslaughter conviction and a consecutiv e upper term of 10 year s for the personal firearm use enhancement. On appeal, defendant contends that the trial court abused its discretion in imposing upper term sentences and that defense counsel provided ineffective assistance in failing to object to t he trial court’s reliance on improper aggravating circumstances and failing to argue mitigating circumstances. We r everse defendant’s upper term sentences for his voluntary manslaughter and personal firearm use enhancement and remand the matter for

resent encing.

BACKGROUND
I. The Prosecution’s Evidence In February 2013, William Mayes and three of his daughters

— Karina, Tammy,

a nd Kimberly

— moved into a house on 159th Street East. Defendant lived next door. About 6:00 p.m. on March 19, 2013, Mayes, his daughters, and other family
members were home when d efendant came over

. Defendant and Mayes drank Jack
Daniels at the kitchen table

. Mayes also drank beer. Kimberly saw her father and defendant each drink four shot glasses of Jack Daniels. Shortly ther eafter, defendant went home and returned with vodka and orange juice. Some time later, then 10

- year

- old Kimberly heard defendant say that then 13

- year

old Tammy “ had big boobs and that he

— that what if he impregnated her, and kissed her and married her.” A fight between Mayes and defendant ensued. Defendant and Mayes punched each other. According to Tammy, Mayes told her during the fight that

1 All statutory citations are to the Penal Code unless otherwise noted.3

defendant said that defendant wanted to impregnate her and thought that she was cute

. D efendant said in respon se that Mayes was lying. Kimberly later told the police that Mayes asked defendant why he would “ do that to a 13

- year

- old ,” and called him a “ bad word.” The fight lasted 15 minutes and took place throughout the house
, end ing in the

garage. Kimberly an d her sisters screamed at defendant to leave, but he would not. When the fight ended , Mayes ordered defendant to leave . D efendant complied and
returned to his house

. The parties stipulated that after defendant returned to his house
and before he later s hot Mayes
, he called 911. Howard Freiberg , the father

- in

- law of Mayes’s daughter Angela , lived about a
mile and a half from Mayes’s house

. Angela called Freiberg around “dusk”

— about 5:00 or 6:00 p.m.

— and asked him to see if there was “an issue going on ” at Mayes’s house. Freiberg immediately went to Mayes’s house where he spoke with Mayes. Mayes said that the next door neighbor had been over and Mayes and the neighbor had been drinking. Freiberg would later tell the police that Mayes appeared to be i ntoxicated. 2 Mayes told Freiberg that the neighbor said he wanted to marry and impregnate Mayes’s 13

- year

- old daughter and Mayes was very upset about it. After the neighbor’s statement, Mayes and the neighbor fought. Mayes told Freiberg that the neighbo r got “the better of him” and people usually did not get the better of him. Mayes said, “ T hat son of bitch

— that motherfucker had the nerve to come over and jump me. He wants to impregnate my daughter.” Freiberg spoke with Mayes for about three to four m inutes and advised him to go in the house and call the police. “The girls” told Freiberg that they had called the police and the police said they were on the way. Freiberg then left Mayes’s house. Shortly after Freiberg left, Mayes went outside

— first standing in the garage and
then near the front door . While Mayes stood at the front door, he yell ed , “You’re going to rot.” Mayes then moved to a fence that separate d Mayes’s property from defendant’s

2 A Deputy Medical Examiner for the Los Angeles Department of Coroner testified that Mayes’s blood alcohol level was .22.4

property. Kimberly did not hear her father say anyth ing as he moved toward and stood at
the fence. As Mayes stood at the fence, Kimberly saw defendant at his front door holding a

gun. Kimberly heard two gunshots and saw a bullet hit the fence and then hit her father. Mayes suffered two gunshot wounds

— o ne to his right ear and one to the left side of his
chest. He died from the gunshot wound to his chest.
Defendant ’s and Mayes’s neighbors Justin Clark and Alex Escobar testified about the shooting. Clark lived on 159th Street East two house s from Maye s’s house. Between 6:00 and 7:00 p.m. on March 19, 2013, Clark was sitting on his fro nt porch and heard two men yelling at each other from the location of the shooting. The first man yell ed
, “You’re a fucking pervert, you’re a dead man you fucking perver t, that’s my daughter.” Clark also heard that man say, “I’m going to fucking kill you.” The second man respond, “You’re making this up
, ” “You got it wrong,” or “You’re mistaken.” The yelling stopped for a few minutes and then resumed for a period of tim e. It stopped for more
than five minutes and then resumed for a period of time. The yelling stopped for about
two minutes and Clark heard two gunshots. Clark told the police that night that he heard, “You’re a fucking dead man, I’m going to fucking kill you, do you understand me” followed shortly by two gunshots.
Escobar lived across the street and three houses from defendant’s house. About 7:00 or 8:00 p.m. on March 19, 2013, Escobar was in his front yard washing his car when
he saw a man in Mayes’s front yard . T he male repeatedly yell ed , “ Y ou dead man, you dead man, fuck you

. ” He also saw a female come out of the house and heard her say, “Dad, come inside , dad, come inside. ” The man remained outside. Escobar saw
d efendant walk out his front door

. The man in Mayes’s front yard said “the same things,
‘You’re a dead man.’” Es cobar then heard two gunshots and saw the man in Mayes’s front yard and the female run towards Mayes’s house. Defendant was on his property when the gunshots were fired.
L os Angeles County Sheriff’s Department Sergeant Brian Schoonmaker searched
defendant ’s house and found a Sturm Ruger .357 magnum revolver on a kitchen counter.5

Sergeant Schoonmaker searched Mayes’s front yard and house. He did not find a
firearm

. Los An geles County Sheriff’s Department Detective Timothy O’Quinn interviewed defendant following the shooting. Defendant said that when he went home, he thought the dispute with Mayes was over. When he heard Mayes “screaming I’m gonna kill you,” he armed hims elf with a gun. Defendant went outside and Mayes again said that he was going to kill defendant. Mayes previously had told defendant he had a

gun. Because Mayes “blew up” at his children all the time , defendant believed that Mayes had a violent nature a nd c ould “ blow up at any minute and do anything

. ” Defendant told Detective O’Quinn that Mayes “was coming towards [him] screaming” and he thought Mayes was going to “pull a gun out.” Mayes had told him that he was a convicted felon and had weapons. 3 Detective O’Quinn asked defendant if he saw a gun. Defendant responded, “I didn’t see, it was dark out there. He said I’m gonna kill you and I thought he had a gun. Um but I didn’t . . .” Later, he said, “I couldn’t see, it was
, there were trees and it was already dark any way.” He said that he thought that Mayes was going to shoot him, so he shot first. As he pulled the trigger, he thought, “I’m gonna hit him before he hits me.” Defendant said, “ I never meant to hurt anyone and this man was more i rate than anyone I have ever seen blow up. I didn’t mean any offense, whatever it is. It’s uh it’s there was no listening, he was just coming and he started coming towards me, right. [¶]

- [¶] Yelling and screaming and I . . . um . . . I maybe overacted but I did not intend to kill the guy.”

II. Defendant’s Evidence
Defendant testified in his own behalf. He said that he met Mayes when Mayes first moved to the neighborhood, about three weeks prior to the shooting. Mayes had a group of people at his h ouse and had waved to defendant to come over. Defendant stayed

3 The trial court admitted a California Law Enforcement Telecommunications System (CLETS) printout that did not show any prior arrests or convictions for Mayes.6

for about an hour and, at some point during that hour
, brought vodka and orange juice to Mayes’s house. Defendant did not return to Mayes’s house prior to the day of the shooting.
On the d ay of the shooting, defendant went to Mayes’s house because he believed
that Mayes’s children or “[s] ome children in his direction,” had been throw ing stones at defendant’s house. Defendant wanted Mayes to know so that he could tell the children to stop. Defendant brought two bottles of beer with him. Defendant saw Mayes through an open door, and Mayes waved defendant into the kitchen. Defendant asked Mayes if he knew that his children had been throwing stones at defendant’s house. Mayes said he
knew a bout the issue and had “yelled at them real good about it.” That end ed the issue
for defendant. Mayes was drinking Jack Daniels and offered defendant a drink. D efendant drank
two shots of Jack D a niels

. Mayes introduced Tammy and Karina to defendant. Mayes said, “They’re cute, aren’t they?” Defendant responded, “Yes, they’re both lovely daughters , Bill.” Mayes said, “ And they’re both virgins, too. [¶]

- [¶] And they’re going to remain virgins. And guess whe n they won’t be virgins anymore[?] . . . W hen they’re
married. ” Mayes then told defendant about “ what the qualities of their husbands potentially would have to be.” Referring to Karina, d efendant replied, “In a couple years, I’m sure she’ll probably be begging you, Bill.” Defendant meant that s he would be begging him to get married. Mayes responded, “I’m gonna kill you.” Defendant replied,
“It’s not me . I’m not

— it wasn’t me. I was [ sic ] talking about me as the husband.” Defendant had been sitting with Mayes at the kitchen table for about 10 minutes when the argument started. Mayes did not appear to be listening to defendant. Mayes pushed the base off the
table and it fell to the floor, breaking into “ a million pieces.” Defendant started to get up
, but Mayes pushed him and he fell to the floor. While defendant was on the floor, Mayes repeatedly said , “I’m gonna kill you” and “You’re a dead man.” The entire time
defendant remained in Mayes’s house, Mayes said “I’m going to kill you or you’re a dead7

man, or you’re a pervert , she’s only 13 .” Defendant denied having said anything about Tammy. Mayes repeatedly grabbed at and punched defendant.
Defendant defended himself by pushing Mayes away. He did not punch Mayes. The entire fight took place in the kitchen and lasted a minute and a ha lf or two minutes. Mayes said, “Get out.” As defendant tried to leave through the garage, Mayes tackled
him and he fell face first onto the garage floor. Mayes continued to “punch at” defendant and yell, “I’m gonna kill you. You’re a dead man. . . . A nd you’re a pervert.” Defendant took Mayes seriously. The altercation in the garage lasted about two minutes. At some point, defendant gained the upper hand and was on top of Mayes. In order to get away, defendant put his right thumb in Mayes’s left eye and pushed hard enough to get Mayes’s attention. Defendant told Mayes to let him go, Mayes complied, and defendant left. When defendant returned home, it was almost dark outside and was getting darker by the minute . D efendant left his front door a nd a security door open. About 30 seconds later, Mayes started yelling again. Mayes y elled, “I’m gonna to kill you, you’re a dead
man.” Defendant called 911. He then grabbed a gun

— “a .357.” He opened the chamber and made sure it was fully loaded. He was afraid that defendant might be coming after
him and that Mayes had had time to arm himself. Mayes previously told defendant that he had a gun

— a Luger. Defendant looked out his door to see if defendant was coming. Mayes yell ed for about a minute. About eight to 10 minutes later, after Mayes had “quieted down” and stopped yelling, defendant stepped outside to look for his dog which he believed had run outside when he opened the door. The area was illuminated only by d efendant’s porch light and ligh t emitted through his front door . Defendant could not see past the house. Still armed with the handgun, defendant approached a tree and whispered for his dog. Mayes either saw or heard defendant and came out of his garage yelling , “I’m gonna kill you. [¶]

- [¶] You’re a fucking pervert. I’m gonna kill you. Do you hear what
I’m

— do you understand. ” T hen , to “solidif y ” his threat, Mayes asked, “Do you8

understand, do you understand, do you understand what I’m saying.” Defendant froze and did not attemp t to go in his house. Mayes approached on the “ sidewalk

. ” The porch stopped him from advancing
farther. Mayes moved back and forth on the “ sidewalk ” yelling, “I’m gonna to kill you.”
Defendant responded, “No, Bill, it’s a mistake, you didn’t understa nd what I was saying. [¶]

- [¶] It’s a misunderstanding. It’s a mistake, you’re making this up in your mind. ” Defendant and Mayes “yelled back and forth like that for about four minutes maybe.” At some point, Mayes yelled
, “I’m gonna kill you and his vo ice changed a little bit to more of a matter of factly sounding, I’m gonna kill you, you know like, calmer, more honest sounding.” Mayes was “gesturing and he came rushing” towards defendant. The light was behind Mayes. Defendant thought that Mayes was armed with a gun and was going
to kill him. Defendant was in fear for his life
, fired two shots

— “ up and down ”

— at Mayes , and ran in his house and called 911

. Defendant did not know how close Mayes
was when he fired the shots

— he starting firing when Mayes suddenly started moving
towards him.
Asked on cross

- examination if he ever saw a gun in Mayes’s hand, defendant responded, “Not definitely.” Asked if he “ever kind of [saw] a gun in [Mayes’s] hand, defendant responded, “Yes.” He said he thought he saw a gun in Mayes’s right hand. He explained that “light flashed off of him as he came by.” Defendant saw “a flicker of light”

— “like an interruption in the light that was coming off

— off the area. And there

was

— it was all the combination of things all at o ne time, the sudden advancement, the yelling and the

— ” The prosecutor asked, “Did you ever see a gun, sir?” Defendant responded , “If he didn’t have one, how could I have seen it? ” The trial court asked defendant, “Is that no?” Defendant responded, “ I didn’t actually.” The trial court asked defendant, “Did you see a gun, ‘yes’ or ‘no.” Defendant replied, “I saw what I though t was a gun.” He acknowledged that he did not tell the 911 operator or Detective O’Quinn
that he thought he saw a gun. During t he period when he walked home after the fight until he shot Mayes, defendant did not see Mayes outside of Mayes’s property or on defendant’s property.9

Rafael Morales , defendant’s and Mayes’s neighbor, testified that when he was driving home two weeks be fore the shooting, Mayes said that he did not like the way Morales “passed by with [his] car.” Mayes said that if Morales drove again in the same manner, Morales was going to have a problem, Mayes would fight him, and Mayes
would kill him. Morales contin ued to drive down Mayes’s street after Mayes’s threat and Mayes did not say anything to him.
Dr. Kevin Booker
, a trauma specialist whose job “involve[d] debriefing men and
women who have served in the United S tates military who have been involved in com bat operations ,” testified that w hen a person perceives that his life is threatened, the person’s autonomic nervous system “essentially overrides the individual’s behavior and takes over and facilitates” certain responses including fight or flight. The fi ght or flight response

can still be in effect even if there has been a five to 15 minute period during which the person ha s returned to a place of safety and there have been no threats. The jury, utilizing imperfect self

- defense, found defendant guilty of voluntary manslaughter.

D ISCUSSION
I. Defendant’s Upper Terms for His Voluntary Manslaughter Conviction and
Personal Firearm Use Enhancement
Defendant contends that the trial court abused its discretion when it sentenc ed him to the upper term s for his voluntary manslaughter conviction and personal firearm use
enhancement. He argues that the trial court relied on improper aggravating

c ircumstances and failed to consider mitigating circumstances.10

A. Background
In its sentencing memorandum
, the prosecution argued for the upper term of 11 years for defendant’s voluntary manslaughter conviction (§ 19 3 , subd. (a) 4 ) and the upper

term of 10 years for the personal use of a firearm (§ 12022.5 5 )

. The prosecution contended that the upper terms were appropriate based on the aggravating circumstances that defendant’s crime involved great violence, great bodily harm, and a high degree of cruelty, defendant was armed with and used a firearm, and Mayes was vulnerable.
At defendant’s sentencing hearing, the trial court stated that it had read and
considered the prosecution’s sentencing memorandum . It stated that it also had read and considered several letters submitted by defendant’s family members, friends, and neighbors. The prosecutor read victim im pact statements from several of Mayes’s friends
and family members

. Mayes’s friends John and Gail Degen stated that Mayes was a great friend and father, very kind
, giving, and willing to help those in need. Michael Freiberg, Mayes’s son

- in

- law, said that Mayes was a single father with six children who went to work every day and had dinner on the table every night. Freiberg stated that Mayes was an “awesome father” whose children meant the world to him. He stated that Mayes’s death had “robbed” Mayes and his children of the various activities they engaged in together

— riding motorcycles, fishing, camping, and boating. Like others, Freiberg said, he was horri bly affected by Mayes’s death. He believed that d efendant
deserved the maximum sentence.
Pedro Renteria, J r. , Mayes’s son, described Mayes as a great father with a wonderful and outgoing personality. Mayes taught Renteria many things when he was a child. After Mayes’s death, Renteria, a father of two, took in and served as father to his

4 Sect ion 193, subdivision (a) provides, “ Voluntary manslaughter is punishable by imprisonment in the state prison for 3, 6, or 11 years. ”

5 Section 12022.5, subdivision (a) provides, “ Except as provided in subdivision (b), any person who personally uses a fir earm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense. ”11

sister Tam my. Renteria’s sister Elizabeth took responsibility for their other sisters, Karina and Kimberly. Renteria said, “With him being gone, me being the oldest, I have some big shoes to fill that I wasn’t ready to fill. I still had a lot to learn from my fat her.” Renteria felt stress every day trying to take care of his family and making sure that his sisters were okay. Because of defendant’s actions, Renteria’s sisters were separated and would not grow up together and Mayes would not be able to watch his c hildren and grandchildren grow. Defendant had made Renteria ’s and his sisters’ lives “a never ending nightmare.” Tammy spoke of the difficulty of losing Mayes, whom she described as an “amazing” father, at the age of 13 and not having her father presen t for birthdays and holidays. She stated that she and her sisters had been separated and expressed uncertainty about her future without her father’s presence at significant life moments. Angela Mayes

- Freiber g also described Mayes as an “amazing” father . Mayes was devoted to his children. Defendant’s actions had “ruined” and torn apart her family. She stated that defendant deserved the maximum possible sentence. Defense counsel argued that this was a low term case. He stated that defendant
ha d no prior convictions and had “lived an exemplary life.”
The trial court then stated its “concerns” as follows: “The choi c es of [defendant], while he ha s been what appears to be a very good
law

- abiding citizen, a good neighbor and a good friend, his choice s have affected many,
not one, not t w o, but five children and the grandchildren. He will never have the opportunity to walk his daughters down the aisle, watch them graduate or see the birth of his future grandchildren. “They will never know their father and grandfather in their older ages. You’ve take [ sic ] from them something they can never ever replace. “And as I heard you testify, I wasn’t completely convinced on the level of

remorse. I think now you regret the decisions that you made, although you haven’t stated
that to the Court, nor have you apologized to the family. Because this isn’t a question of12

whether you shot him. It was a question of what your mental state was, and the jury
mad e that finding and I’ll be bound by that decision.
“But I d idn’t hear you say to the family, I am so sorry for the loss of your father. So I’m not hearing any remorse, and I think the decision initially to arm yourself unnecessarily was largely influence by the alcohol. You might not have done that if you
were in another situation and thinking clearly. You may not have made that choice. You may not have shot at the distance you did through a chain link fence at an unarmed man. “I think those are factors to consider, but they were choices that you made. And

you r choices have resulted in the death of a father and a grandfather unnecessarily. “I do find that there are factors and circumstances in aggravation that greatly outweigh the fact that you have lived what appears to be on paper a law

- abiding life, and
tho se would include this crime involved great violence, great bodily harm, and the high degree of cruelty and callousness. You shot across a yard where you could not see clearly at what was an unarmed man through a chain link fence.”
Defendant stated, “I did not.” The trial court responded, “Well, sir, he wasn’t close enough for you to see him up close and personal. There’s nothing that would have stopped you from standing your ground if [ sic ] chose to do that. Or in the alternative, call the police a nd stay inside. You made the choice to arm yourself and go outside. That was not required or necessary.

“ All you had to do was wait for law enforcement to arrive.

“ You also shot into an area where you knew there were three young girls because they were all in the home. And had they been out there with their father, they may also been victims in this case. These are clearly your choices.

“ And by your statements now, I see that you don’t get it, and that’s part of what the problem is here. You were, i n fact, armed during the commission of the crime, and

you have engaged in violent conduct which indicates you are, in fact, a serious danger to society.

“ As we sit here today in your mind, I think you feel you’re justified in doing what you did .”13

Defe ndant objected that he did not feel justified. Defendant counsel argued that defendant had never said that he felt justified.
The trial court said, “I think he said he didn’t know he was unarmed as if it was okay to have shot.”
Defendant replied, “N o, I thought I was under attack.”
The trial court responded, “Okay. Sir, I’m saying that’s what you represented; I don’t accept that. The jury didn’t accept it. If they did, they would have found you not guilty. But I don’t accept that. At the dista nce and the circumstances that were testified to, I do not accept that. “You may have yourself convinced of that. The jury rejected that and so do I. At those distance under those circumstances. And with the lighting the way that it was. That’s this c ourt’s position. “I do believe the high base term is appropriate based on that. Those factors and I do acknowledge you have no document ed criminal history . . . .” The trial court then sentenced defendant to the upper term of 11 years for his
voluntar y manslaughter conviction and 10 years for the personal firearm use
enhancement.

B. Application of Relevant Principles A trial court’s sentencing choices are discretionary. (§ 1170, subd. (b) [“ When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within th e sound discretion of the court

. . . . The court shall select the term which, in the court ’ s discretion, best serves the interests of justice ”].) W e review suc h choices for an abuse of that discretion

— i.e., “ sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an ‘ individualized
consideration of the offense, the off ender, and the public interest.’ [Citation.] . . . [A] trial court will abuse its discretion under the amended scheme if it relies upon
circumstances that are not relevant to the decision or that otherwise constitute an14

improper basis for decision . [Citations.] ” ( People v. Sandoval (2007) 41 Cal.4th 825, 847.) “When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that
the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.” ( People v. Price (1991) 1 Cal.4th 324, 492 .) California Rules of Court, rule 4.420(b) 6 provides, “ In exercising his or her discretion in selecting one o f the three authorized prison terms referred to in section 1170(b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtaine d 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 the sentencing hearing. ” A trial court may use the same “fact or facts to aggra vate both a base term and the sentence on an enhancement

. ” ( People v. Moberly (2009) 176 Cal.App.4th 1191, 1198

. ) “ Only a single aggravating factor is required to impose the upper term [citation].” ( People v. Osband (1996) 13 Cal.4th 622,
728 .)
1. A ggravating Circumstances

“ An aggravating circumstance is a fact that makes the offense ‘ distinctively worse than the ordinary. ’ ” ( People v. Black ( 2007) 41 Cal.4th 799, 817
, overruled on other grounds by Cunningham v. California (2007) 549 U.S. 270 .) De fendant lists 11 aggravating circumstances he contends the trial court improperly relied on in sentencing him to upper terms . Of those circumstances , the trial court expressly identified four

— great violence, great bodily harm, a high degree of cruelty, an d a high degree of
callousness

— as aggravating circumstances it relied on in imposing upper terms.
Defendant infers t he remaining seven aggravating circumstances

— victim vulnerability, serious danger to society, “ family bereavement, ” lack of remorse, intoxi cation,
unreasonable self

- defense, and use of a firearm

— from background remarks the trial court

6 All citations to rules are to the California Rules of Court.15

made at the sentencing hearing and from the trial court’s responses to remarks defendant
made

. We will address the four aggravating circumstance on which the t rial court expressly relied. Because the Attorney General only contends that two of defendant’s
additional seven inferred aggravating circumstances

— serious danger to society and

“ family bereavement ”

— support the upper terms
, we limit our discussion of defe ndant’s additional inferred aggravating circumstances accordingly.

a. Great violence The trial court found that defendant committed the voluntary manslaughter and personally used a firearm with great violence, an aggravating circumstance under rule
4 .421(a)(1). The trial court did not explain the factual basis for its finding. Defendant presumes that the trial court based its finding on the fact that defendant fired two shot s at Mayes

. He argues that the evidence did not establish great violence. The Attorney
General does not address this argument, taking the position that other aggravating circumstances support the upper terms. To be an aggravating factor, the violence with which a crime was committed must be such that it “ disclos [e s ] a high de gree of cruelty, viciousness, or callousness .” (Rule 4.421(a)(1).) V iolence is inherent in any voluntary manslaughter committed with a
firearm

. ( People v. Nevill (1985) 167 Cal.App.3d 198, 206 [h usban d , convicted of voluntary manslaughter, acted with gr eat violence when he shot his disabled wife with a
rifle 10 times at point blank range ].) To qualify as great violence, the manner in which a voluntary manslaughter with a firearm was committed must indicate cruelty, viciousness,
or callousness “ when comp ared to other ways in which a homicide by use of a firearm may be committed .” ( Ibid. ) Defendant fired two shots at Mayes from a distance in the dark after Mayes threatened to kill him. He struck Mayes in the ear and the chest. Defendant did not
commit Mayes’s homicide with violence beyond that inherent in every voluntary manslaughter committed with a firearm. ( People v. Nevill, supra, 167 Cal.App.3d at p. 206.) That is, defendant did not commit the offense in a manner that made it or the16

personal fire arm use “‘distinctively worse tha n the ordinary’” voluntary manslaughter or personal firearm use

. ( People v. Black , supra, 41 Cal.4th at p. 817.) Accordingly, the trial court erred in finding the great violence aggravating circumstance.

b. Great bodi ly harm The trial court found that defendant inflicted great bodily harm in committing the voluntary manslaughter and in personally using a firearm , an aggravating circumstance under rule 4.421(a)(1). The trial court did not explain the factual basis for its finding. Defendant presumes that the trial court based its finding on the fact that defendant caused Mayes to die. D efendant argues that in all voluntary manslaughter s committed with a firearm, the victim suffered death

— “ the great est of all bodily h arm [ s ]”

— and t herefore,
under People v. Black

, supra, 41 Cal.4th at page 817, his “ infliction of great bodily harm did not make his offense worse than other voluntary manslaughters or make him deserving of more punishment. ” The Attorney General does not ad dress this argument, taking the position that other aggravating circumstances support the upper terms.

“ A fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term. ” (Rule 4.420(d).) “[B] y def inition, manslaughter involves the killing of a human being (see Pen. Code, § 192); death

— the greatest of all bodily harm

— is therefore an element of this crime. ” ( People v. Piceno (1987) 195 Cal.App.3d 1353, 1357 [vehicular manslaughter without gross negl igence] .) Because Mayes’s death was an element of defendant’s voluntary manslaughter offense, the trial court erred in finding the great bodily harm aggravating circumstance.

c. High degree of c ruelty
The trial court found that defendant committed th e voluntary manslaughter and personally used a firearm with a high degree of cruelty, an aggravating circumstance under rule 4.421(a)(1). The trial court did not explain the factual basis for its finding. Defendant contends that the trial court’s stateme nt that he chose to arm himself and unnecessarily go outside rather than wait for law enforcement to arrive suggests that the17

trial court construed his conduct as intending to provoke Mayes into an unequal confrontation thereby disc losing a high degree of cruelty. He further contends that the trial court appeared to construe his act of shooting Mayes in “near

- dark” conditions as evidence of cruelty. He argues that neither his choice to go outside armed n or his act of shooting Mayes in near

- dark conditions establish ed a high degree of cruelty. Again, t he Attorney General does not address this argument, taking the position that other aggravating circumstances support the upper terms. The basis for the trial court’s high degree of cruelty finding is uncle ar. As stated above, the trial court did not explain the basis for its finding. W e reject defendant’s interpretation of the cited re marks of the trial court as being the basis of the trial court’s cruelty finding. “ Cruelty” is “ the quality or state of b eing cruel : dispos ition to inflict pain or suffering or to enjoy its being inflicted : inhumanity .” (Webster ’s 3d New Intern

. Dict

. (1981) p. 546 .) Because defendant’s acts of arming himself and going outside rather than waiting for law enforcement to a rrive and shooting Mayes in near darkness
did not reflect a disposition to inflict pain or suffering or to enjoy its being inflicted
, there
is no reason to conclude that the trial court relied on such conduct to find a high degree of cruelty

. Defendant’s voluntary manslaughter and personal use of a firearm can be
summarized as follows: after an argument precipitated by defendant’s offens iv e comments about Maye s ’s daughter, an ensuing fight, and repeated death threats by Mayes, d efendant shot Mayes twice a nd killed him. T he shooting and defendant’s personal use of a firearm under these circumstances d o not support a finding that
defendant was so disposed to inflict pain or suffering or to enjoy its being inflicted as to have made Mayes’s homicide or defend ant’s personal firearm use “‘ distinctively worse than the ordinary ’ ” voluntary manslaughter or personal firearm use

. ( People v. Black
, supra, 41 Cal.4th at p. 817.) Accordingly, the trial court erred in finding the high degree of cruelty aggravating circ umstance.18 d. High degree of c allousness The trial court found that defendant committed the voluntary manslaughter and personal use of a firearm with a high degree of callousness, an aggravating circumstance under rule 4.421(a)(1). Defendant contends that the basis for the trial court’s high degree of callousness finding was its determination that he endangered the lives of the Mayes children when he shot their father. For this contention, defendant relies on the trial

court ’s statement at sentencing that he “shot into an area where [he] knew there were three young girls because they were all in the home. And had they been out there with their father, they may also been victims in this case.” Defendant contends that the facts preclude d a finding tha t Kimberly, Tammy, or Karina was in the line of fire when he shot their father. According to the defendant, although the evidence shows that Kimberly was outside at the time of the shooting, Escobar’s testimony placed her out of the line of fire.
He also contends that the evidence shows that Tammy was inside the house, and no
evidence shows that Karina was outside. The Attorney General argues that the trial court’s high degree of callousness finding is supported by defendant’s statement to Detective O’ Quinn that Mayes was on his own property when defendant shot him
, defendant admitted that he did not have a good reason when he decided to come out of his house to confront Mayes
, and defendant
testified that he was unable to see if Mayes was armed because a tree blocked his view and it was dark outside. Given those circumstances, the Attorney General argues, defendant was “exceptionally callous when he shot Mayes dead.” We do not agree with either defendant’s or the Attorney General’s asserted basis
fo r the trial court’s high degree of callousness finding. Instead, we believe that the basis for the trial court’s finding is disclosed in remarks the trial court made concerning the jury’s verdict and what the trial court believed the jury, by its verdict, said about defendant’s mental state. A person acts in a callous manner when he acts without regard for the feelings or welfare of others. (Webster’s 3d New Intern. Dict., supra , p. 319 ; see In re Scott (2004) 119 Cal.App.4th 871, 891 [“‘callousness

— i.e. , lack of emotion or sympathy, emotional19

insensitivity, indifference to the feelings and suffering of others’”] .) The jury returned a voluntary manslaughter verdict based on imperfect self

- defense. Thus, consistent with

t he trial court ’s instruction on i mperfect self

- defense voluntary manslaughter, the jury
found that defendant “actually believed that he was in imminent danger of being killed or suffering great bodily injury” and he “actually believed that the immediate use of deadly force was necessary t o defend against the danger” but “[a]t least one of those beliefs was
unreasonable.” At the sentencing hearing, t he trial court stated, “ [T] his isn’t a question of whether you shot him. It was a question of what your mental state was, and the jury

ma de that finding and I’ll be bound by that decision.” Later during the sentencing hearing , when defendant stated that he shot Mayes because he thought was under attack,
the trial court responded, “Okay. Sir, I’m saying that’s what you represented; I don’t accept that. The jury didn’t accept it. If they did, they would have found you not guilty. But I don’t accept that. At the distance and the circumstances that were testified to, I do not accept that. [¶] You may have yourself convinced of that. The jury rejected that and
so do I

. ” The trial court stated it would be bound by the jury’s decision on defendant’s mental state when he shot Mayes. The trial court’s other comments, however, indicate the trial court may have incorrectly understood the ramif ication of the jury’s finding. Contrary to the trial court’s comments, the jury did not reject defendant’s claim that he believed he was under attack when he shot Mayes, nor is it the case, as the trial court stated, that the jury would have acquitted d efendant if it accepted his claim that he believed he was under attack. Instead, in returning its imperfect self

- defense voluntary manslaughter verdict the jury found that defendant actually believed he was in imminent danger of being killed or suffering great bodily injury and actually believed that the immediate use of deadly force was necessary when he shot Mayes, but thought that one
or both of those beliefs was unreasonable. Having stated it would be bound by the jury’s decision on defendant’s mental state, the trial court was obligated to proceed on the understanding that defendant actually20

believed in the need for self

- defense. That understanding is inconsistent with the trial court’s reliance on a “high degree of callousness” as an aggravating sen tencing factor. Instead of a callous action, one undertaken without regard for the feelings or welfare of others, defendant fired the two shots because, in the jury’s view, he actually believed he must use deadly force lest he himself suffer death or grea t bodily injury. (See People v.
Sandoval , supra, 41 Cal.4th at p. 841 [in assessing harmlessness, court could not conclude jury would have found defendant was callous, i.e., that she had “no concern regarding the consequences of her actions” when jury con victed only on lesser included offense of voluntary manslaughter].) Accordingly, callousness was not established as an aggravating circumstance.

e. Serious danger to society Apart from the aggravating circumstances on which the trial court expressly relied, the Attorney General contends that defendant’s upper terms are supported by the trial court’s finding that he engaged in violent conduct that indicated he is a serious danger to society, an aggravating circumstance under rule 4.421(b)(1). Accordin g to the Attorney General, “Given the way [defendant] senselessly killed Mayes, there is a significant risk that he would kill another innocent person if he were allowed to remain at large.” At sentencing, the trial court stated to defendant, “ [Y] ou hav e engaged in violent conduct which indicates you are, in fact, a serious danger to society. ” T he trial court’s

statement appears to have been based on the fact that defendant shot Mayes twice and killed him. As set forth above, violence is inherent in an y voluntary manslaughter committed with a firearm. ( People v. Nevill, supra, 167 Cal.App.3d at p. 206.) The level of violence defendant engaged in in committing the voluntary manslaughter and personally using a firearm causing is unremarkable compared wit h other voluntary manslaughters and firearm uses and does not support a finding that defendant poses a more serious to society than other persons similarly convicted. Thus, to the extent that21

the trial court imposed the upper terms based on its finding th at defendant’s violence indicated that he is a serious danger to s ociety, the trial court erred. 7

f. “ Family bereavement ” Also apart from the aggravating circumstances on which the trial court expressly relied, the Attorney General contends that defen dant’s upper terms are supported by the trial court’s finding that defendant’s conduct “ deeply impacted Mayes’s family

. ” T he Attorney General argues that the trial court properly relied on the victim impact

statements. Relying on People v. Levitt (1984) 156 Cal.App.3d 500, 516

- 517, which held that the bereavement of the victim’s family cannot “ properly be relied on to aggravate [a defendant’s] sentence because it bears no rational relationship to [the defendant’s] degree of culpability ,” defendant counter s that “ family bereavement ” never is an appropriate aggravating circumstance. Under the Victims’ Bill of Rights, a trial court properly may consider victim impact statements in connection with sentencing. (§ 1191.1 8 ; People v. Jones (1992) 10 Cal.App.4th 1566, 1574

- 1576.) At the sentencing hearing, t he trial court said, “The choices of [defendant]

. . . have affected many, not one, not two, but five children and the grandchildren. He will never have the opportunity to walk his daughters down the aisle,
watch them graduate or see the birth of his future grandchildren. [¶] They will never

7 Contrary to the Attorney General’s suggestion, the issue is whether defendant’s violence poses a serious threat to society and thus supports upper terms; defendant will not be “allowed to remain at large” based on our h olding that the trial court improperly relied on this aggravating circumstance.

8 Section 1191.1 provides, in relevant part: “The victim, or up to two of the victim’s parents or guardians if the victim is a minor, or the next of kin of the victim if the victim has died, have the right to appear, personally or by counsel, at the sentencing proceeding and to reasonably express his, her, or their views concerning the crime, the person responsible, and the need for restitution. The court in imposing sentenc e shall consider the statements of victims, parents or guardians, and next of kin made pursuant to this section and shall state on the record its conclusion concerning whether the person would pose a threat to public safety if granted probation.”22

know their father and grandfather in their older ages. You’ve take [ sic ] from them something they can never ever replace. ” The victim impact statements showed the imp ortant role that Mayes, a single father, played in his children’s lives and the importance of that role to Mayes. By killing Mayes, defendant deprived Mayes of the opportunity to raise his younger children and participate in the lives of all of his childr en. The trial court properly relied on the victim impact statements in its sentencing
considerations. (§ 1191.1; People v. Jones, supra, 10 Cal.App.4th at pp. 1574

- 1576.)

2. Mitigating Circumstances
Defendant contends that the trial court erred in f ailing to consider as mitigating circumstances victim provocation (rule 4.423(a)(2)), that the voluntary manslaughter was committed because of an unusual circumstance (rule 4.423(a)(3)), that he suffered from a mental condition that reduced his culpability (rule 4.423(b)(2)), and that he voluntarily acknowledged wrongdoing at an early stage of the criminal process (rule 4.423(b)(3)). Defendant’s contention is unavailing. On appeal, we deem the trial court to have considered all relevant sentencing
criter ia “ unless the record affirmatively reflects otherwise. ” ( R ule 4

. 409 ; People v.
Zamora (1991) 230 Cal.App.3d 1627, 1637 [“ unless the record affirmatively reflects otherwise, the trial court will be deemed to have considered the relevant criteria, such as mitigating circumstances, enumerated in the sentencing rules ”] .) Here, the record does not affirmatively reflect that the trial court failed to consider all relevant mitigating circumstances. Accordingly, defendant’s contention that the trial court faile d to consider the claimed mitigating circumstances fails. ( R ule 4

. 409 ; People v. Zamora, supra, 230 Cal.App.3d at p. 1637.)
Defendant relies on People v. Burney (1981) 115 Cal.App.3d 497, 505 for the proposition that “[w]hile the Rules of C ourt establish a rebuttable presumption that the trial court has considered all relevant sentencing criteria (rule 4.409), the court’s

statements at se n t e ncing, interpreted in light of the record, may rebut the rule 4.409 presumption.” Defendant overstates the holding in People v. Burney

. Rebuttal occurs23

under People v. Burney only when the trial court found that were no mit igating
circumstances

— “ ‘ The Court finds no circumstances in mitigation ’ ”

— but the record reflects that there were mitigating circumstances . ( Ibid. ) Here, unlike in People v. Burney , the trial court found a circumstance in mitigation

— defendant had no prior record of criminal conduct (rule 4.423(b)(1))

. 9 Accordingly, there can be no rebuttal under People v. Burney

. ( R ule 4

. 409 ; People v. Zamora, sup ra, 230 Cal.App.3d at p. 1637.)

3. Prejudice
W e have held that the trial court improperly relied on four aggravating
circumstances

— great violence, great bodily harm, high degree of cruelty, and serious danger to society. We further explained the reaso ns why the trial court’s comments on a high degree of callousness indicate the trial court likely misapprehended the jury’s mental state finding, and in so doing, incorrectly relied on a high degree of callousness as an aggravating factor. Without these f ive aggravating circumstances, the trial court would have been left with one valid aggravating circumstance, the impact on the victim’s family. We recognize that a trial court may rely on a single aggravating circumstance to support an upper term sentence . ( People v. Osband , supra, 13 Cal.4th at p. 728.) Under the facts of this case, however, where many of the factors expressly relied on by the sentencing court have proven to be unsupported, we believe it is reasonably probable that
the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. ( People v. Price, supra, 1 Cal.4th at p. 492 ; People v. Avalos (1984) 37 Cal.3d 216, 233 .) Our disposition does not preclude the trial court on remand from finding additi onal aggravating or mitigating circumstances or rejecting any claimed aggravating or mitigating circumstances.

9 Becaus e the trial court did not find an absence of mitigating circumstances and rule 4.409’s presumption thus cannot be rebutted under People v. Burney, supra, 115 Cal.App.3d at page 505, we do not determine whether the record supports the contended mitigating f

actors.24

II. Ineffective Assistance of Counsel Defendant contends that defense counsel provided ineffective assistance in failing to object to the tria l court’s reliance on improper aggravating circumstances and failing to argue for mitigating circumstances. Because we have reversed defendant’s sentence and remanded for resentencing, we need not reach this issue.

DISPOSITION Defendant’s upper term sen tences for his voluntary manslaughter and personal use
of a firearm enhancement are reversed
, and the matter is remanded to the trial court for resentencing. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MOSK, A cting P. J.

I concur:

BAKER, J.KRIEGLER, J., Dissenting

People v. Michael Norton
B257084

I respectfully dissent. Aided by the probation report and the prosecutor, the trial court improperly found several irrelevant aggravating factors in imp osing sentence. Because there are three appropriate aggravating factors, and given the enormity of defendant’s crime, any error committed by the trial court in relying on unauthorized factors in aggravation of punishment is nonprejudicial under Article VI , section 13 of the
California Constitution. The trial court did not err in finding that defendant acted with a high degree of callousness. (Cal. Rules of Court, rule 4.421 (a)(1) .) Using the majority’s definition of callousness, there is substantial ev idence to support a finding that defendant acted “without regard for the feelings or welfare of another.” The victim was on his own property and unarmed when killed by defendant. Three of the victim’s daughters were at
home at the time their father was k illed. Defendant fired toward the victim’s property, placing in danger the three daughters, or any neighbor or passerby, who could have been struck by an errant shot. These circumstances constitute substantial evidence that defendant acted without regard for the feelings or welfare of another. This same evidence also supports a separate aggravating circumstance under California Rules of Court, rule 4.421(b)(1) that defendant represents a serious danger to society. The killing was entirely avoidable. De fendant could have remained safely
inside his residence until law enforcement arrived. Violent conduct of this nature indicates defendant is a serious danger to society. A third aggravating factor is found in the devastation to the victim’s family
resul ting from defendant’s unlawful killing of the victim. The avoidable killing of an
unarmed man resulted in the destruction of a family . Children and grandchildren lost the patriarch of the family. Younger siblings were separated after the killing and the2

responsibility for their upbringing was cast upon older siblings. The purpose for consideration of victim impact evidence is to allow the trial court to take into consideration the specific impact of a defendant’s crime. The trial court’s comments in
th e initial portion of the sentencing hearing demonstrate the court’s appreciation that the effect on the victim’s family is w hy this homicide is an aggravated offense. Without citation of authority, the majority finds fault with the trial court’s purported failure to sentence “on the understanding that defendant actually believed in
the need for self

- defense.” I disagree that the court’s approach was improper in this respect, and to the contrary, the court acted consistent with California Supreme Court
auth ority. Our Supreme Court has sanctioned the trial court forming its own opinion on the evidence, even if it differs from the findings of the jury, because of the different burdens of proof imposed on the jury as to guilt and the trial court as to sentenci ng.

“ Nothing in the applicable statute or rules suggests that a trial court must ignore evidence related to the offense of which the defendant was convicted, merely because that evidence did not convince a jury that the defendant was guilty beyond a reaso nable doubt
of related offenses

. ” ( People v. Towne (2008) 44 Cal.4th 63, 85

- 86 ; see also People v.
Castorena (1996) 51 Cal.App.4th 558, 562

- 5 63 [at sentencing the trial court was entitled to consider defendant’s conduct as the equivalent of second degree murder, even though the conviction was for gross vehicular manslaughter while intoxicated].) Given that there are three aggravating factors supported by substantial evidence,

“ there is no reasonable probability that a more favorable sentence would have been imposed in the absence of the error. As stated, a single factor in aggravation suffices to support an upper term. [Citation.] The court therefore could still have relied on the aggravating factors it listed to impose such a term. [Citation.]” ( Pe ople v. Osband (1996) 13 Cal.4th 622, 729

- 7 30 ; see also People v. Price (1991) 1 Cal.4th 324, 492 [harmless error where trial court considered both proper and improper reasons for a sentence choice]. ) I would not put the victim’s family through the anguis h of a new3

sentencing hearing where there is no reasonable probability of defendant obtaining a
more favorable sentence.

KRIEGLER, J.