P. v. De La Toba

Filed 2/7/08 P. v. De La Toba CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Riverside County, F. Paul Dickerson III, Judge. Affirmed.

Raul De La Toba appeals from a judgment convicting him of attempted voluntary manslaughter, with enhancements for personal use of a deadly weapon and personal infliction of great bodily injury. Toba asserts his constitutional rights were violated when the trial court excluded defense evidence on hearsay grounds. We hold the evidence should have been admitted, but find the error harmless.

As to sentencing, De La Toba argues: (1) the imposition of enhancements for both personal deadly weapon use and personal infliction of great bodily harm violated Penal Code^[1]section 654's proscription against multiple punishment; (2) the imposition of an upper term sentence was based on an improper dual use of facts and a factor unsupported by the record; and (3) the trial court's factual findings to support the upper term violated his jury trial rights under Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi). We find no reversible error and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

At about 9:15 p.m. on August 29, 2005, off-duty officers Steve Taylor, Jeremy Klemp, and Michael Reeves were playing softball in a league game at a park. The game was interrupted by people yelling and screaming that someone was bleeding or had a gun. Officers Taylor, Klemp, and Reeves went to investigate the matter. The officers saw victim Richard Dexter walking in the park. Dexter, who was wearing only shorts, was bleeding heavily and had tissue protruding from his abdomen. Dexter appeared angry and somewhat disoriented; he stated that he had been stabbed. He did not cooperate with the officers' attempts to assist him. Instead, he walked towards a dugout, yelled that he wanted a bat, and stated he was going to kill De La Toba.

De La Toba walked into the park shortly after Dexter. De La Toba was waving an eight-inch kitchen knife in his hand. De La Toba appeared angry and yelled that he was "going to kill that mother-f___." He appeared to be looking for Dexter, and stated, "I stabbed him. I'll stab him again." While this was occurring, Dexter was pacing back and forth, some distance away from De La Toba. The off-duty officers were standing in an area in between Dexter and De La Toba.

Officers Klemp and Reeves told De La Toba to drop the knife. De La Toba continued waving the knife and responded that he would "stab all of you guys." Officer Klemp again told him to drop the knife. De La Toba complied, tossing the knife to the ground. Officer Klemp told him to lift his shirt to show he did not have any other weapons. De La Toba did not do so, but told Officer Klemp to lift his shirt. Officer Klemp lifted his shirt to reveal he had no weapons.^[2] De La Toba then stated that he (De La Toba) had a "nine" (meaning a nine-millimeter handgun) and reached behind his waistband.^[3]

At this point a patrol car entered the park and a uniformed officer (Officer Robert Alexander) exited the car. De La Toba turned and began walking away from the area. Officer Alexander ordered De La Toba to turn around and put his hands up. De La Toba initially complied, but then put his hands down and started walking away. Officer Alexander kicked De La Toba in the back. De La Toba fell to the ground and Officer Alexander handcuffed him. De La Toba was yelling and laughing, stating that he " 'stuck' " Dexter at the house, that it was premeditated " 'or whatever you want to call it,' "

that he would stab him again, and that he was going to kill him. Later, when De La Toba was in a patrol car, he stated, " 'Is he dead? [] . . . [] Because if he is, I want to jack off in my cell.' " At the police station, De La Toba again asked if Dexter was dead. When an officer told him that it appeared Dexter would survive, De La Toba stated, " 'Damn, I'm losing it in my old age. That f____ should be dead.' "

Meanwhile, Dexter was still not cooperating with the authorities and did not want his wound to be treated. Two officers held Dexter's arms to restrain him while emergency medical personnel treated his injury. Dexter told an officer that he "fell on something sharp." Dexter was placed on a gurney and transported to the hospital.

A few days after the incident, De La Toba told an officer at the jail that he and his nephew (Dexter) had an argument and the argument "got ugly." De La Toba stated he stabbed his nephew because his nephew "disrespected him, and he wasn't going to be disrespected." He also told the officer that his nephew was in a gang and "he wasn't going to let his nephew get him first, so he stepped up and got [his nephew] first."

Dexter testified that the injury occurred at his sister's house while he and De La Toba were at the house with Dexter's son and his sister's children. Dexter and De La Toba, who were intoxicated, got into an argument about another of De La Toba's nephews, Eddie. Dexter, who acknowledged being in a gang, testified that he and Eddie had been in a fight a few years earlier. As a result of the fight, Eddie was injured and required stitches to the back of his head. De La Toba wanted to know what had happened between the two cousins and why they were no longer talking. Dexter told De La Toba that he and Eddie were "going to go at it again"; that he would "finish the job"; and that he and some of his friends were going to "do in Eddie." De La Toba told Dexter to stop threatening family members. Dexter stated that as soon as his sister was home he and De La Toba would "have it out."

Dexter testified that after the argument with his uncle, he used a kitchen knife to start repairing a television cord at his sister's house. He stopped this repair job to get another beer, and while he was en route to get the beer he and his uncle "just went at each other." The two started fighting, and Dexter fell. Dexter was holding the kitchen knife in his hand and he felt a "pinch" in his side when he fell.

Dexter sustained a one and one-half inch wide stab wound in the right side of his abdomen, with internal fat protruding from the incision. He also suffered a three-inch deep laceration that went through his liver and caused internal bleeding.

The prosecutor argued that De La Toba was guilty of attempted first degree murder because he intended to kill Dexter with premeditation and deliberation. De La Toba's counsel argued for acquittal based on claims that the stabbing was in self-defense or an accident. As alternate theories of lesser culpability, the jury was also instructed on attempted voluntary manslaughter based on intoxication, provocation and heat of passion, and unreasonable self-defense. Rejecting the attempted murder charge, the jury found De La Toba guilty of attempted voluntary manslaughter. The jury also rendered true findings on enhancements for personal use of a deadly weapon and personal infliction of great bodily injury.

DISCUSSION

I. Exclusion of Defense Evidence

De La Toba argues that his constitutional rights to confront witnesses and present a defense were violated when the trial court sustained the prosecutor's hearsay objection to testimony by an arresting officer that De La Toba had told the officer that during the argument at the house Dexter had threatened to "waste" De La Toba's nephew, Eddie.

Background

On direct examination by the prosecution, Officer David Tinker delineated various statements made by De La Toba while he was being arrested at the park, including his statements that he had stabbed Dexter at the house, that his actions were premeditated, and that he would stab him again. On cross-examination, defense counsel asked Officer Tinker if De La Toba had also stated that "Dexter[] had told him he was going to waste Mr. De La Toba's nephew, Eddie." The prosecutor objected on hearsay grounds. Defense counsel asserted the statement was admissible because it was "contextual." The trial court sustained the objection.

Defense counsel then attempted to ask Officer Tinker whether De La Toba had also told him about "the argument." When the prosecutor objected on hearsay grounds, the parties and the court held a sidebar discussion off the record. After completion of the discussion, the trial court sustained the objection. Defense counsel then asked Officer Tinker: "Without saying what Mr. De La Toba told to you, he did speak to you more than just the statements you've presented in court; isn't that right?" Officer Tinker answered, "Yes." Defense counsel then proceeded to cross-examine Officer Tinker regarding other matters.

On redirect examination, the prosecutor asked Officer Tinker if De La Toba had made any statements about Dexter attacking him. Officer Tinker answered that he had made no such statements. On recross-examination, defense counsel asked: "You were asked questions about Mr. De La Toba's statements to you and whether or not he told you that Mr. Dexter had attacked him. But isn't it true that in the context of Mr. De La Toba making a statement to you, he did tell you about Mr. Dexter having talked about violence?" The prosecutor objected on hearsay grounds, but the trial court overruled the objection, instructing Officer Tinker that he could answer " 'yes' " or " 'no.' " Defense counsel then repeated the question, asking: "You were asked some questions . . . about whether Mr. De La Toba had told you about Mr. Dexter being violent to Mr. De La Toba, but isn't it true that, in Mr. De La Toba's statements to you, he did in fact talk to you about Mr. Dexter being violent?" Officer Tinker answered, "Yes."

After Officer Tinker finished his testimony, the parties and the court (outside the presence of the jury) again discussed the defense evidence excluded by the trial court. Defense counsel advised the court that Officer Tinker's police report indicated that before De La Toba told Officer Tinker that he stabbed Dexter at the house, De La Toba told the officer that Dexter had stated to De La Toba that he was going to waste De La Toba's nephew, and that De La Toba had told Dexter that he (Dexter) was not going to do this. Defense counsel argued that because the prosecution had admitted part of De La Toba's statement, the defense was entitled to admit the entire statement to provide context, to support its defense, and to preserve its right to cross-examine. The trial court noted its ruling that the evidence was inadmissible hearsay, and stated that admission of the statement regarding "talking about [Dexter's] violence" provided sufficient context.

Analysis

Evidence Code section 356 provides that where part of a declaration is introduced into evidence by a party, the adverse party is entitled to present the whole of the declaration on the same subject.^[4] Under this section, "if a party's oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, 'which have some bearing upon, or connection with, the admission . . . in evidence.' " (People v. Arias (1996) 13 Cal.4th 92, 156.)

This is precisely the situation here. The prosecution introduced De La Toba's statements to Officer Tinker admitting that he stabbed Dexter. Under Evidence Code section 356, De La Toba was entitled to introduce his additional statements to Officer Tinker regarding Dexter's stated intent to "waste" De La Toba's nephew Eddie. The trial court erred in excluding the evidence.

However, the error was harmless even assuming we should apply the harmless beyond a reasonable doubt standard for federal constitutional error. (See People v. Fudge

(1994) 7 Cal.4th 1075, 1103.) Under this standard, the People must prove beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Neal (2003) 31 Cal.4th 63, 86.)

The excluded testimony was relevant to show that De La Toba stabbed Dexter because Dexter had threatened to attack Eddie, and thus could support multiple theories of defensei.e., (1) De La Toba was provoked and acted in the heat of passion supporting an attempted voluntary manslaughter; (2) he had an actual but unreasonable belief in the need to defend Eddie from imminent harm to supporting attempted voluntary manslaughter; or (3) he had an actual and reasonable belief in the need to defend Eddie from imminent harm supporting acquittal. (People v. Lasko (2000) 23 Cal.4th 101, 108; People v. Randle (2005) 35 Cal.4th 987, 994, 996-997.)

Here, the jury found De La Toba guilty of attempted voluntary manslaughter. Notably, the victim himself testified that during the argument he told De La Toba that he intended to attack Eddie again and "finish the job." Thus, the jury was aware of the factual basis for the theory of defense underlying the erroneously excluded evidence to support an attempted voluntary manslaughter verdict. Because the jury ultimately did render an attempted voluntary manslaughter verdict, there was no prejudice from the exclusion of De La Toba's statement to the officer with regard to a defense of attempted voluntary manslaughter based on provocation or unreasonable defense of another.

Moreover, even if the excluded evidence had been admitted, the record does not support a finding of defense of another, reasonable or unreasonable. To support a claim of defense of another, the defendant must actually believe danger was immediate and present; fear of an attack even in the near future is insufficient. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082; In re Christian S. (1994) 7 Cal.4th 768, 783.) "Fear of future harmno matter how great the fear and no matter how great the likelihood of the harmwill not suffice. The defendant's fear must be of imminent danger to life or great bodily injury. ' "[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with." ' " (Id. p. 783, italics omitted.) Here, there was no evidence that Eddie was anywhere near or readily reachable by Dexter to support a finding that De La Toba actually believed an attack on Eddie was imminent. Under these circumstances, De La Toba could not establish a defense of another claim.

Because the trial court's exclusion of the evidence did not affect the verdict, the evidentiary error does not require reversal.

II. Sentencing Issues

The trial court sentenced De La Toba to 10 years and six months in prison. The sentence consisted of an upper term sentence of five years and six months for attempted voluntary manslaughter ( 192, subd. (a), 193, 664), plus consecutive sentences of one year for the personal use of a deadly weapon enhancement ( 12022, subd. (b)(1)), three years for the personal infliction of great bodily injury enhancement ( 12022.7, subd. (a)), and one year for a prior prison term enhancement ( 667.5, subd. (b)).

A. No Section 654 Bar to Enhancements for Deadly Weapon Use

and Infliction of Great Bodily Injury

De la Toba argues the trial court violated section 654 by imposing an enhancement for personally using a deadly weapon ( 12022, subd. (b)(1)) in addition to an enhancement for personally inflicting great bodily injury ( 12022.7, subd. (a)). He argues that his use of the knife to inflict the stab wound constituted an indivisible course of conduct that can properly be punished with only one enhancement.

When a defendant sustains multiple convictions arising out of a single act or indivisible course of conduct, section 654 permits only one punishment for the defendant's conduct. (People v. Oates (2004) 32 Cal.4th 1048, 1062.) The purpose of section 654 is to ensure that a defendant's punishment is commensurate with his or her culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) The issue of whether section 654 generally applies to enhancements has not yet been resolved by the California Supreme Court, and the lower appellate courts have reached inconsistent conclusions on this matter. (See People v. Palacios (2007) 41 Cal.4th 720, 728 (Palacios).) In Palacios the California Supreme Court ruled there was no bar to imposition of multiple enhancements for the same course of conduct in a situation where the particular enhancement statute ( 12022.53 gun discharge enhancement) reflected a legislative intent to dispense with the section 654 limits. Relying on the specific language of the enhancement statute, the Palacios court concluded the statute evinced a legislative intent

"to create a sentencing scheme unfettered by section 654." (Palacios, supra, at p. 728.)^[5]

However, the court left the issue of the general applicability of section 654 to enhancements "for another day." (Ibid.)

Unlike the situation in Palacios, here the terms of sections 12022 and 12022.7 do not shed light on the issue of whether section 654 should apply to bar punishment for both enhancements when the defendant engages in an indivisible course of conduct.^[6] However, section 1170.1, subdivisions (f) and (g), contains explicit statements permitting imposition of enhancements for both deadly weapon use and infliction of great bodily injury during a single offense. We find these provisions dispositive of the issue.

Section 1170.1 involves sentencing determinations when sentences are imposed consecutively. The section provides that any applicable enhancements shall be imposed

consecutively to the sentence for the substantive offense. ( 1170.1, subd. (d).)

Subdivisions (f) and (g) of this section specifically concern deadly weapon use and great bodily injury enhancements. Addressing deadly weapon use enhancements, section 1170.1, subdivision (f) provides that only one enhancement for deadly weapon use shall be imposed for a single offense, and then explicitly states that this provision does not limit imposition of a great bodily injury enhancement for that offense.^[7] Concomitantly, addressing great bodily injury enhancements, section 1170.1, subdivision (g) provides that only one enhancement for inflicting great bodily injury on the same victim shall be imposed for a single offense, and then expressly states that this provision does not limit imposition of a deadly weapon use enhancement for that offense.^[8]

The statutory provision expressly permitting both deadly weapon use and great bodily injury enhancements for a single offense reflects a legislative assessment that a defendant who uses a deadly weapon to commit an offense, and who also uses the deadly weapon in a manner that causes the victim to suffer great bodily injury, should be subjected to an enhanced sentence for both of these factors. To apply section 654 in this

context would be inconsistent with the plain statement that both enhancements are permissible for a single offense. If the Legislature had wanted section 654 applied notwithstanding the contrary indication in section 1170.1, subdivisions (f) and (g), it would have been a simple matter for it to say so. (See, e.g., 1170.1, subd. (a) [stating

principal/subordinate consecutive sentencing scheme for substantive offenses is "subject to Section 654"]; see also Palacios, supra, 41 Cal.4th at pp. 729, 730, fn. 5.) Given the legislative intent reflected in section 1170.1, subdivisions (f) and (g), the trial court did not err in imposing both enhancements.

B. Upper Term Sentence

To support its upper term selection for attempted voluntary manslaughter, the trial court found the following aggravating factors: (1) The crime involved great violence, great bodily harm, and other acts involving a high degree of cruelty, viciousness, and callousness; (2) the defendant has engaged in violent conduct, indicating a serious danger to society; (3) the defendant's prior convictions are numerous; (4) the defendant has served a prior prison term; (5) the defendant was on parole when the crime was

committed; and (6) the defendant's prior performance on parole was unsatisfactory.^[9]

(See Cal. Rules of Court,^[10]rule 4.421(a)(1), (b)(1)-(b)(5).) The court rejected De La Toba's assertion that his alcohol use was a mitigating factor, and found no mitigating factors.

De La Toba argues that (except for the numerous prior convictions factor) the trial court's use of these factors (1) was premised on an improper dual use of facts and a finding unsupported by the evidence, and (2) violated his jury trial rights under the Apprendi rule. We shall first discuss the evolving sentencing restrictions under the Apprendi rule, and then evaluate De La Toba's various challenges to his upper term sentence.

The Evolving Apprendi Rule

A defendant has a constitutional right to have the jury, not the trial judge, decide all facts that increase the penalty for a crime beyond the prescribed statutory maximum. (Apprendi, supra, 530 U.S. at p. 490; Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely); Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856, 860 (Cunningham).) Under Apprendi and its progeny, the statutory maximum is "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Blakely, supra, at p. 303, italics omitted.) Based on the high court's definition of "statutory maximum," if the sentencing judge selects a punishment which under the state penal statute requires factual findings beyond the facts encompassed in the guilty verdict, such judicial fact finding violates the defendant's jury trial right. (Cunningham, supra, at pp. 865, 868-869.) An exception to the Apprendi rule allows a sentencing court to enhance punishment beyond the statutory maximum based on " 'the fact of a prior conviction.' " (Blakely, supra, at p. 301; Cunningham, supra, at p. 860.)

At the time of the sentencing hearing on August 18, 2006, the governing law under California Supreme Court precedent was that the upper term was the statutory maximum. (People v. Black (2005) 35 Cal.4th 1238 (Black I), vacated in Black v. California (2007) ___ U.S. ___, 127 S.Ct. 1210). Thus, trial courts (as the court did here) were free to select upper term sentences based on judicial fact finding. However, in 2007, the Black I ruling was abrogated by the United States Supreme Court's holding in Cunningham. The Cunningham court held that the statutory maximum was the middle term because under California's sentencing scheme the middle term was the presumptive term and the trial court was not permitted to select an upper term without a judicial finding of an aggravating fact that was not an element of the offense found by the jury. (Cunningham, supra, 127 S.Ct. at pp. 868, 871.)^[11]

On remand of the Black case based on the Cunningham decision, the California Supreme Court determined that a trial court is still permitted to make factual findings beyond the jury's verdict to support an upper term selection, if the sentencing record shows that at least one aggravating circumstance was established in accordance with the Apprendi rule so as to render the defendant eligible for the upper term. (People v. Black

(2007)41 Cal.4th 799 (Black II).) In reaching this conclusion, the Black II court focused on (1) the United States Supreme Court's advisements that the key constitutional considerations are whether the state statute forbids the trial court from increasing the

sentence above a certain term without judicial findings beyond the jury's verdict and thus the defendant is legally entitled to that particular term, and (2) the feature of California's sentencing scheme that provides that a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (Black II, supra, at pp. 812-816.) Considering these matters, the court in Black II reasoned that when one aggravating circumstance has been established in accordance with constitutional requirements, the trial court is not prohibited from imposing the upper term, the

defendant is not legally entitled to the middle term, and it follows that the upper term is

the statutory maximum. (Ibid.)

The Black II court concluded that "imposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." (Black II, supra, 41 Cal.4th at p. 816.) Thus, once the defendant is eligible for the upper term based on the establishment of a constitutionally permissible fact, "the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury." (Id. at p. 813.)

In Black II, the California Supreme Court also examined the scope of the prior conviction exception to the Apprendi rule. The Black II court defined this exception as including "not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions." (Black II, supra, 41 Cal.4th at p. 819.) Illustrative of this interpretation of the prior conviction exception, the Black II court held the aggravating factors of numerous or increasingly serious prior convictions were within the prior conviction exception. The Black II court explained that findings of numerousness or increasing seriousness "require consideration of only the number, dates, and offenses of the prior convictions alleged"; the relative seriousness "may be determined simply by reference to the range of punishment provided by statute for each offense"; and these types of determinations were " 'quite different from the resolution of issues submitted to a jury' " and more appropriate for a court. (Id. at pp. 819-820.)

Analysis

Here, one of the aggravating factors relied on by the trial court to impose the upper term was that De La Toba had incurred numerous prior convictions. Based on our Supreme Court's holding in Black II, this factor was within the prior conviction exception to the Apprendi rule and made De La Toba eligible for the upper term. Thus, it was permissible for the trial court to make factual findings apart from De La Toba's prior convictions when deciding to select the upper term. The trial court did not violate De La Toba's jury trial rights when it made factual findings to impose the upper term.

Next, we consider De La Toba's claims that the aggravating factors identified by the trial court were improper because they violated the prohibition against dual use of facts or lacked evidentiary support. Preliminarily, these challenges are forfeited on appeal because De La Toba did not raise them before the trial court. (People v. Scott (1994) 9 Cal.4th 331, 351-352, 356; People v. Gonzalez (2003) 31 Cal.4th 745, 752, 755.) Contrary to his assertion, he had an opportunity to object to the trial court's aggravating factors because they were all cited in the probation report, the court gave the parties an opportunity to present argument at the sentencing hearing, and prior to adjourning the hearing the court asked counsel if there were any further issues to be discussed. In any event, his contentions of reversible error in this regard fail on the merits.

As noted, De La Toba does not challenge the propriety of the trial court's reliance on the factor of numerous prior convictions. He challenges the other factors: i.e., high degree of cruelty, viciousness, and callousness; violent conduct indicating a serious danger to society; service of a prior prison term; parole status when the crime was committed; and prior unsatisfactory performance on parole. De La Toba argues the trial court violated the proscription against dual use of facts because (1) the factors of cruelty, viciousness, callousness, and violent, dangerous conduct are inherent in the offense of attempted voluntary manslaughter with knife use and great bodily injury enhancements; (2) the factor of his prior prison term was punished under the imposed prior prison term enhancement ( 667.5, subd. (b)); and (3) the factors of parole status and unsatisfactory performance on parole were related to the same offense supporting the imposed prior prison term enhancement. Additionally, De La Toba asserts the record does not contain sufficient evidence to show that he violated parole.

The Attorney General properly concedes the trial court's reliance on the prior prison term factor was an improper dual use of facts given the imposition of the prior prison term enhancement. (See People v. Coleman (1989) 48 Cal.3d 112, 163-164.) We reject De La Toba's remaining challenges to the aggravating factors.

A trial court's findings in support of an upper term must be established by a preponderance of the evidence, and on appeal we review the court's determinations under the substantial evidence standard. (Rule 4.420(b); see People v. Black, supra, 41 Cal.4th at p. 818, fn. 7.) Based on the proscription against dual use of facts to impose punishment, a fact constituting an element of the crime or the basis of an imposed enhancement may not be used to impose an upper term sentence. ( 1170, subd. (b); Rule 4.420(c), (d); People v. Scott, supra, 9 Cal.4th at p. 350.)

To support the court's determination that the current crime was highly cruel, vicious, and callous and involved violent, dangerous conduct, the record must support a finding of "circumstance[s] . . . that make[] the offense 'distinctively worse than the ordinary.' " (Black II, supra, 41 Cal.4th at p. 817; People v. Webber (1991) 228 Cal.App.3d 1146, 1169-1170.)^[12] The aggravating circumstances must be "above and beyond the essential constituents of [the] crime which increases its guilt or enormity or adds to its injurious consequences." (People v. Davenport (1985) 41 Cal.3d 247, 289; see also People v. Garcia (1995) 32 Cal.App.4th 1756, 1776 [aggravating factor must exceed minimum requirements necessary to establish the crime].)

The evidence shows that De La Toba stabbed Dexter in the house, and then followed him outside to the park, still wielding the knife and threatening to kill Dexter. Thereafter, he repeatedly inquired whether Dexter was dead and indicated he would celebrate if he was. These facts can reasonably support an inference that De La Toba committed the offense with a callousness, viciousness, and cruelty that was beyond that necessary to establish attempted voluntary manslaughter with knife use and great bodily injury. Further, the court could reasonably conclude that De La Toba's conduct of pursuing Dexter into the park, still holding the knife and after he had already stabbed him, showed violent, dangerous conduct (thwarted only by the presence of off-duty officers) that surpassed the minimal level of conduct implicit in attempted voluntary manslaughter with knife use and great bodily injury.

We also reject De La Toba's dual use challenge based on the parole-related aggravating factors (i.e., parole status during the current offense and unsatisfactory performance on parole) and the imposition of the prior prison term enhancement. Even

though De La Toba's parole status and parole violations were derived from his release from prison for the offense underlying the prior prison term enhancement (see fn. 9, ante), his post-release parole status and his repeated parole violations were distinct from his actual service of the underlying prison term. In People v. Coleman, supra, 53 Cal.3d at page 954, the California Supreme Court noted that parole status may properly be used as an aggravating factor even when a prior prison term enhancement is imposed. (See also People v. Yim (2007) 152 Cal.App.4th 366, 369; People v. Jerome (1984) 160 Cal.App.3d 1087, 1098-1099.)^[13] There was no improper dual use of facts from the court's reliance on the parole-related factors to impose the upper term as well as the imposition of the prior prison term enhancement.

Finally, De La Toba's evidentiary challenge to the trial court's finding of unsatisfactory performance on parole is unavailing. The probation report lists repeated parole violations following his release from prison. Facts in support of aggravating factors may be based on information in the probation report. ( 1170, subd. (b); Rule 4.420 (b); see People v. Chi Ko Wong (1976) 18 Cal.3d 698, 725, disapproved on another

point in People v. Green (1980) 27 Cal.3d 1, 33-34.) De La Toba did not challenge the accuracy of the probation report at the sentencing hearing. Under these circumstances, we may properly assume the probation report is accurate. (People v. Chi Ko Wong, supra, at p. 725; People v. Welch (1993) 5 Cal.4th 228, 234.) Based on the information in the probation report, there is sufficient evidentiary support for the trial court's finding of unsatisfactory performance on parole.

In sum, the trial court could properly rely on five of the six aggravating factors it listed in support of the upper term. The only erroneous factor was the prior prison term. Notably, the trial court found no mitigating factors. Given the lack of mitigating factors and the court's focus on the high level of callousness and violence in the current crime as well as its consideration of the defendant's prior convictions, parole status, and parole violations, it is not reasonably probable the court would have made a different sentencing choice absent the prior prison term factor. Accordingly, the single instance of error does not warrant reversal. (People v. Osband (1996) 13 Cal.4th 622, 728.)

DISPOSITION

The judgment is affirmed.

HALLER, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.

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^[1] Subsequent statutory references are to the Penal Code unless otherwise specified.

^[2] The off-duty officers were not in uniform and did not identify themselves as officers to Dexter or De La Toba.

^[3] De La Toba did not in fact have a gun.

^[4] Evidence Code section 356 states: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence."

^[5] Section 12022.53 prescribes substantial sentence enhancements for using a firearm in the commission of certain listed felonies. (Palacios, supra, 41 Cal.4th at p. 723.) The Palacios court analyzed provisions in the statute stating that the enhancement should be applied " 'notwithstanding any other provision of law' "; stating that " 'one [enhancement should] be imposed per person for each crime' "; and applying the enhancement to offenses already involving firearm use. (Id. at pp. 728-733.) The court held that it was proper to impose three gun discharge enhancements based on the firing of one shot at a single victim during the commission of the three, separately-punishable offenses of attempted murder, kidnapping for robbery, and kidnapping for carjacking. (Id. at pp. 724, 726-728.)

^[6] Sections 12022 and 12022.7 both contain provisions precluding imposition of the enhancements when deadly weapon use or infliction of great bodily injury are elements of the offense. ( 12022, subd. (b)(1), 12022.7, subd. (g).) However, they do not contain any provision addressing imposition of both a deadly weapon use enhancement and a great bodily injury enhancement for the same offense against the same victim.

^[7] Section 1170.1, subdivision (f) states: "When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for the infliction of great bodily injury."

^[8] Section 1170.1, subdivision (g) states: "When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for being armed with or using a dangerous or deadly weapon or firearm."

^[9] The probation report indicates that De La Toba was convicted of theft in 1979, and convicted of petty theft with a prior theft in 1999. He was sentenced to 16 months in prison for the 1999 conviction. After his release from prison, he violated parole on April 2000, August 2000, March 2001, May 2001, February 2002, October 2002, and March 2004. He was paroled in September 2004, and committed the current offense in August 2005. He also incurred drug-related misdemeanor convictions in June 1992, September 1992, March 1995, March 1996, and December 1998.

^[10] Subsequent references to rules are to the California Rules of Court.

^[11] In response to Cunningham, effective March 30, 2007, the California Legislature amended section 1170, subdivision (b) to make the middle term a discretionary rather than presumptive term. (Stats. 2007, ch. 3,  2; People v. Sandoval (2007) 41 Cal.4th 825, 845-847.) Our analysis is premised on the former version of the statute.

^[12] Because the record does not show that De La Toba has engaged in highly violent conduct in the past (see fn. 9, ante), we assume the court's finding that he had engaged in violent conduct showing a serious danger to society was based on the current offense.

^[13] We note in People v. Calhoun (1981) 125 Cal.App.3d 731, 733-734, the court found an improper dual use of facts based on reliance on the aggravating factor of unsatisfactory performance on probation and imposition of a prior prison term enhancement. In Calhoun, the facts underlying these sentence determinations consisted of the defendant's commission of a robbery while on probation, and then his service of a prison term for that same robbery. Thus, in Calhoun the same conduct (the prior robbery) gave rise to the probation violation and the prison term. In contrast, here De La Toba served a prior prison term, was released from prison, and then engaged in additional conduct involving repeated violation of his parole and commission of the current offense while on parole. Thus, assuming Calhoun properly applied the dual use rule, it is factually distinguishable.