P. v. Pang

Filed 8/25/08 P. v. Pang CA3

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

----

This case is before us after remand for reconsideration from the United States Supreme Court in light of Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham). We conclude that the trial courts imposition of the upper term for assault with a deadly weapon was proper and therefore again affirm with a modification to strike an enhancement.

We vacated our prior decision after the remand from the United States Supreme Court. In his supplemental briefing after remand, defendant discusses only the Cunningham issue; therefore, in addition to resolving the Cunningham issue, we reissue the prior opinion as to other contentions made in defendants original briefing.

On April 12, 2003, defendant attacked Tyson Luttenbacher in a 7-Eleven parking lot in Chico, California. He stabbed Luttenbacher once in the abdomen and fled. Police apprehended defendant a few blocks from the scene.

The jury found defendant guilty of assault with a deadly weapon, with enhancements for using a knife, personally inflicting great bodily injury, and committing the offense for the benefit of a street gang. It also found defendant guilty of misdemeanor assault for an unrelated incident. Defendant had pled guilty to battery for the benefit of a street gang for yet another unrelated incident. The court sentenced him to 17 years 8 months in state prison. He appeals.

Defendant contends: (1) there was insufficient evidence to sustain the felony assault conviction; (2) there was insufficient evidence to sustain the gang enhancement; (3) the trial court improperly instructed the jury concerning self-defense; (4) the trial court improperly used elements of the substantive offense and enhancements to impose the upper term; (5) the imposition of the upper term violated his jury trial rights; and (6) an enhancement for use of a deadly weapon should have been stricken, not stayed. We strike the deadly weapon use enhancement and affirm as modified.

FACTS

On April 25, 2002, in Gridley, California, defendant pushed Ruben R., a juvenile, into a tree and kicked him. On June 25, 2002, defendant (dressed in red) punched and kicked Jose Hernandez (dressed in blue) at Sycamore Middle School, stomping on his head after Hernandez fell to the ground. Further description of these two offenses is unnecessary because defendant does not raise appellate contentions concerning them.

In the early morning of April 12, 2003, Tyson Luttenbacher was in Chico with several friends, celebrating his sister-in-law Jennifer Horners 21st birthday. Their group of at least eight or nine friends included Albert Alvarado and Refuqio Jasso. Two men approached Alvarado in a bar called Mr. Luckys and asked him where he was from and who he was. He interpreted the question as asking if he was a gang member and stated he was not. The men said, Oh, this is Norteos. Fuck the south siders. Alvarado walked away, pointed the two men out to Jasso, and told him the men hit me up.

The two men were standing with a group of Hispanics. Some of these men threw up their hands saying, Whats up, what are you going to do about it[?] The bouncers asked Alvarado to take it outside and Alvarado complied after waiting 10 minutes. He feared the men would jump him and his friends.

Once outside, Alvarado was waiting with Jasso and three girls when he noticed the men from inside the bar exit and look at him with smiles or smirks on their faces. Defendant was one of these men.

Christina Becker, one of the birthday celebrants, yelled at the men and accused them of wanting to jump Alvarado and Jasso. Horner also yelled at the men. An unidentified man pushed Horner, so Alvarado pushed him back. The man punched Alvarado, and the mans friends joined in, beating Alvarado. He fell to the ground, and the men kicked him. Alvarado saw Horner and Jasso were also being kicked on the ground. The kicking lasted 20 to 30 seconds. Horner, Jasso, and Alvarado all sustained injuries including bruises, scratches, and scrapes. Jasso had a knot behind his ear, and Alvarado had a gash on his face.

When Alvarado stood up about 10 seconds after the kicking stopped, the men had gone. The birthday celebrants decided to leave, some going to the sidewalk outside another bar to wait for friends and others going to the parking lot. A car drove the wrong way down a one-way street with the people inside the car waving their hands, yelling, and swearing at the birthday celebrants. Alvarado and Jasso identified the occupants of the car as the men who had assaulted them. The car stopped, and defendant was one of the occupants who got out in the parking lot of a 7-Eleven across the street from the birthday celebrants.

Horner and other celebrants crossed the street to meet defendant and his group. She approached and yelled at defendant, demanding to know why his group jumped them. Defendant responded he was going to kick her ass. Horner tried to slap defendant in a manner defendant characterized as a girl slap, although there is some uncertainty as to whether the slap actually hit defendant. Around the same time, Joseph Turner, another birthday celebrant, heard the words Norte, Norte chanted in conjunction with throwing their hands up in the air.

Luttenbacher attempted to maneuver Horner away from the situation, but turned slightly towards defendant to check what he would do. Defendant stabbed him in the abdomen and fled the scene. Horner followed with her brother until she learned defendant had a knife. They returned to check on Luttenbacher.

Officer Matthew Seipert, a member of the Chico Police Departments canine unit, responded to a call about a fight in the early morning hours of April 12, 2003. He noted three Hispanic males running and ordered defendant, who was in the lead, to stop. Defendant slowed his pace, but failed to stop so Officer Seipert threatened to release his dog. Defendant stopped and was detained. Officer Seipert looked along the path taken by defendant and located a knife coated with what was later determined to be Luttenbachers blood.

Officer Donald Finkbiner, a court certified gang expert, explained that Norteos, a Hispanic gang, wear red. He stated the primary purpose of the Norteos is to conduct criminal activity, specifically to commit [a]ssaults with deadly weapons, robbery, drive-by shootings, [and] arson.

Additionally, Officer Finkbiner testified about his examination of defendants tattoos and defendants letters containing gang slang and signs to various known gang members dated as recently as the month before trial, finding them consistent with gang membership and referencing the Norteos. The prosecutor gave a hypothetical laying out the facts to be proven in this case: Defendant was with men who made a gang-related comment in a bar. He had gang tattoos. He beat up people in the parking lot acting with the men who made the prior gang comment. He stabbed a man while others chanted Norte, Norte. And he demonstrated knowledge of the Norteos, associated with known gang members, and admitted gang membership. Officer Finkbiner opined that the assault with a deadly weapon was committed for the benefit of the Norteos.

Defense Case

Defendant testified he went clubbing in downtown Chico with friends. They entered Mr. Luckys while Eric Jurado, defendants friend, used the restroom at a nearby fast-food restaurant. They left to go to Joes Bar, but saw a fight going on outside. Defendant stopped to watch to make sure Jurado was not involved. Shortly thereafter everyone in the fight left. Defendant heard a girl say he was part of the fight.

Defendant went to Joes Bar, but did not go in because the line was not moving. Defendant and his friends started for the 7-Eleven to get a 20-pack of beer to take home, but decided to go to Panamas Bar instead. As defendant walked towards Panamas Bar, a girl and three men approached him. The girl stated defendant had hit her. He started backing away from the approaching group.

Defendant testified the girl ran past the men and tried to slap him. He feared the three men with her were going to assault him. Defendant nearly tripped on a concrete divider, stopped backing up, and pulled out his knife. One of the men stated, You better have a gun. Defendant testified he punched the man on his right after he tried to come at him. After this, the man in the middle came towards him, and defendant stabbed him because he felt threatened. Defendant then fled the scene.

Defendant stated he was followed by the man he punched and a girl. He stopped and faced them for a few seconds, but then continued running until he lost his shoe. Defendant put his shoe back on and continued his flight. He noted a marked patrol car, so he threw the knife away. Defendant continued running until he was ordered by the police officer to stop.

Defendant testified about his tattoos consisting of one dot on his right pointer finger and a dot on each finger of his left hand. Defendant stated he acquired his tattoos in jail because when you go to jail you have to belong to a group and with the tattoos he was in the Norteos group so he would not be assaulted. He maintained that he pursued his interest in the Norteos only while in jail. However, defendant later admitted to being a member of the Norteos, but maintained the Norteos were not a criminal street gang.

DISCUSSION

I

Sufficiency of Evidence of Assault

Defendant argues there was insufficient evidence to sustain his assault conviction because the prosecution did not prove beyond a reasonable doubt he did not act in self-defense. We disagree.

On appeal, this court must determine whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] The appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.) For the evidence to be substantial, it must be reasonable in nature, credible, and of solid value. (Ibid.)

All that is required to sustain a conviction of assault with a deadly weapon is proof that there was an assault, that it was with a deadly weapon, and that the defendant intended to commit a violent injury on another. (People v. Birch (1969) 3 Cal.App.3d 167, 177, citing People v. Corson (1963) 221 Cal.App.2d 579, 582.)

Defendant does not contest the sufficiency of the evidence he stabbed Luttenbacher. Therefore, we confine our analysis to his claim of self-defense. Looking at the evidence in the light most favorable to the verdict, there is substantial evidence defendant did not act in self-defense when he stabbed Luttenbacher.

As defendant notes: For an assault to be in self-defense, the defendant must actually and reasonably believe in the need to defend. (People v. Jefferson (2004) 119 Cal.App.4th 508, 518.) Defendants group was involved in the fight outside the bar earlier that evening -- a fight in which his group clearly prevailed. The birthday celebrants saw defendant and four others from his group across the street. Horner, Luttenbacher, and two others crossed the street. Horner yelled at defendant, and he responded that he was going to kick [her] ass. Luttenbacher tried to pull Horner away from defendant, and defendant stabbed him. From this evidence, the jury could have concluded that a person in defendants position could not have reasonably believed he needed to defend himself with a knife against the unarmed birthday celebrants, especially against Luttenbacher, who had not made an aggressive move against defendant but was merely trying to pull Horner away.

The evidence was also sufficient to show defendant had no subjective belief in the need to defend himself. Defendant testified he felt threatened and punched one of the birthday celebrants who tried to come at him. There was contrary evidence, however, upon which the jury could reasonably rely to discredit defendants testimony. Defendants group had prevailed in the earlier altercation. When Horner yelled at him, he did not move away. No one tried to hit defendant except possibly Horner. Defendant testified that Horner missed him with what he characterized as a girl slap. As someone in defendants group chanted Norte, Norte, defendant stabbed an unarmed man who made no aggressive movement toward him. Thus, the jury could reasonably conclude defendant did not believe he needed to defend himself.

Defendant asserts that the prosecution failed to carry its burden because the birthday celebrants were intoxicated and angry and crossed the street to confront defendant. He argues the birthday celebrants were the aggressors and he had the right to defend himself. Defendants argument fails to take into account, however, the lack of an assault by the birthday celebrants, except possibly the ineffectual girl slap by Horner. Also, defendant used a knife in what, at most, was a potential fistfight. No right to stab an unarmed person arose.

II

Sufficiency of Evidence for Gang Enhancement

Defendant contends there was insufficient evidence to
find true the gang enhancement. He claims the evidence was insufficient because it did not show defendants actions
(1) were motivated by a desire to benefit his gang or (2) were taken with specific intent to benefit the gang. We disagree.

Penal Code section 186.22, subdivision (b)(1) provides a sentence enhancement for any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .

To find a crime is gang-related there must be more than the defendants criminal history and gang affiliations. (People v. Martinez (2004) 116 Cal.App.4th 753, 761.) Here, there is more evidence than affiliations, criminal history, and presence. The gang evidence in this case is compelling. From the start, the confrontation between the birthday celebrants and defendants group had gang connotations when two members of the group approached Alvarado and inquired about his gang membership. Outside of the bar, defendant was with the group that beat up the birthday celebrants. Later, defendant was in the car when his group yelled, swore, and pointed at the birthday celebrants. Sporting his gang tattoos, defendant responded to the chants of Norte, Norte, by stabbing Luttenbacher.

Defendant complains that there was no evidence he was actually involved in the earlier fight. However, he was with his fellow gang members who beat up the birthday celebrants, even if there was no evidence he hit or kicked anyone. The jury could infer that defendants gang returned to the scene to further intimidate and harass the birthday celebrants and enhance their gangs criminal reputation. Likewise, the jury could conclude defendant had the specific intent to benefit his gang when he stabbed an unarmed man, while someone else chanted Norte, Norte.

III

Jury Instructions Concerning Self-Defense

Defendant argues the trial court erred when it instructed the jury on self-defense concerning (1) initial aggressors (CALJIC No. 5.54),^[1](2) provocation with intent to create the necessity for self-defense (CALJIC No. 5.55),^[2]and (3) mutual combat (CALJIC No. 5.56)^[3]because there was no basis in the evidence for giving them. We find no error.

California courts have a broad duty to instruct on all material issues presented by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 159-160.) Looking at the evidence presented and the inferences the jury could draw from that evidence, the court properly instructed on initial aggressors, provocation with intent to create the necessity for self-defense, and mutual combat.

Defendant again asserts there was no evidence he assaulted anyone in the first altercation. From this, he argues the jury could not conclude he was an initial aggressor. To the contrary, defendant was acting as part of a group, a criminal gang. His gang beat up the birthday celebrants with him in attendance. He then returned to the scene with his gang and participated in taunting the birthday celebrants, seeking further physical combat. This evidence was sufficient to justify the initial aggressor instruction (CALJIC No. 5.54).

The evidence also supported the instruction that one who provokes another to create the necessity for self-defense is not entitled to the defense (CALJIC No. 5.55). Defendant returned to a volatile scene and participated in taunting the birthday celebrants, thus provoking the continuing conflict.

Finally, the evidence also supported the mutual combat instruction (CALJIC No. 5.56). Having attended and encouraged the first altercation, as can be inferred from his gang membership, attendance, and later actions, defendant returned to the scene and helped provoke further conflict. The jury could conclude this amounted to mutual combat.

IV

Dual Use of Element of Crime

The trial court sentenced defendant to the upper term of four years for assault with a deadly weapon, as the base term. As circumstances in aggravation, the court found (1) the crime involved great violence and callousness, (2) the crime indicated planning, and (3) defendants prior performance on probation was unsatisfactory. The court also imposed enhancements of one year for use of a deadly weapon, three years for great bodily injury, and 10 years for street gang terrorism. Defendant objected that the deadly weapon enhancement should be stayed. He also objected, concerning the aggravating circumstances, that the violence was inherent in the crime and that one infraction on probation did not render the prior performance unsatisfactory. Several days later, the court held a hearing on its own motion and stayed the one-year enhancement for use of a deadly weapon because it was an element of the crime.

Defendant contends the trial court erred and violated his due process rights when it sentenced him to the upper term for assault with a deadly weapon. He asserts that [t]o the extent that the crime may be described as violent and callous, these factors are inherent in the assault with a deadly weapon with infliction of great bodily injury such that they cannot be used as aggravating factors. We find no error.

When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. (People v. Lamb (1988) 206 Cal.App.3d 397, 401, quoting former Pen. Code, 1170, subd. (b).) The upper term is justified only where -- considering the record of the case including the probation officers report, other reports filed in the case, and other competent evidence -- circumstances in aggravation are established by a preponderance of the evidence and outweigh the circumstances in mitigation. (People v. Lamb, supra, 206 Cal.App.3d at p. 401, referencing former Cal. Rules of Court, rule 4.420(b).)

Determination of the sentence term is subject to the trial courts broad discretion (People v. Lamb, supra, 206 Cal.App.3d at p. 401, citing People v. Ramos (1980) 106 Cal.App.3d 591, 605) and will be upheld unless defendant shows the sentence was arbitrary or irrational. (People v. Lamb, supra, at p. 401, citing People v. Hubbell (1980) 108 Cal.App.3d 253, 260.) However, elements of offenses charged or facts found true for enhancements must not be used as aggravating factors. (Cal. Rules of Court, rule 4.420(c) & former (d).)

Here the sentence of the trial court was not arbitrary or irrational. The trial court specifically stated it had thought about the facts of the case and the sentencing considerations before it found the circumstances in aggravation outweighed those in mitigation and sentenced defendant to the upper term. Defendant argues assault with a deadly weapon inherently involves an act of great violence and acts disclosing a high degree of callousness. This is simply not true. The manner in which defendant committed the crime, returning to the scene after his gang had beaten the birthday celebrants and provoking them to approach him and then stabbing a man who was merely trying to pull away a woman who was upset from the earlier violence, all the while knowing he had a knife and could attack them with it, exhibited violence and callousness beyond that necessary to convict of assault with a deadly weapon with an enhancement for great bodily injury. Therefore, the court did not abuse its discretion in using violence and callousness as an aggravating factor.

Moreover, a single aggravating factor can be enough to justify imposition of the upper term. (People v. Steele (2000) 83 Cal.App.4th 212, 226 [finding any of properly used factors sufficient to sustain upper term].)

V

Right to Jury Trial Concerning Sentencing Considerations

Defendant argues, citing Cunningham, that the trial court violated his right to a jury trial and due process of law by imposing the upper term sentence based on aggravating circumstances that were not found true by a jury and that did not involve a prior conviction. We reject defendants contention that the trial court committed Cunningham error. The trial court validly relied on defendants prior unsatisfactory performance on probation.

Under Californias determinate sentencing law, the trial court imposed the upper term of four years in state prison for assault with a deadly weapon (Pen. Code,  245, subd. (a)(1)), finding that circumstances in aggravation outweighed those in mitigation. As aggravating circumstances, the court found:
(1) the crime involved great violence and callousness, (2) the crime indicated planning, and (3) defendants prior performance on probation was unsatisfactory. (Cal. Rules of Court, rule 4.421(a)(1) & (8), (b)(5).) As the only mitigating circumstance, the trial court noted that defendants prior criminal record was minimal. (Cal. Rules of Court, rule 4.423(b)(1).)

Defendant argues that imposition of the upper term violated his Sixth Amendment right to a jury trial because it was based on facts not found true by a jury beyond a reasonable doubt. In our prior opinion in this case, since vacated, we upheld the upper term sentence based on People v. Black (2005) 35 Cal.4th 1238 (Black I), which held that a sentencing courts reliance on factors not found by the jury to impose an upper term sentence under the determinate sentencing law does not violate the Sixth Amendment. Black I was thereafter overruled by Cunningham. (Cunningham, supra, 549 U.S. at p. __ [166 L.Ed.2d at p. 876].) The California Supreme Court denied defendants petition for review of this case (People v. Pang (S140044, Feb. 8, 2006) [petn. for review den.]), but the United States Supreme Court granted certiorari, vacated the judgment, and remanded to this Court for reconsideration of the sentencing issue in light of Cunningham. (Pang v. California (case No. 05-10091, Feb. 20, 2007) 167 L.Ed.2d 44 [order vacating judg. and remanding].) We recalled the remittitur, reinstated the appeal, vacated our prior opinion, reappointed counsel, and directed the parties to brief the Cunningham issue.

Consistent with Cunningham and related cases, we conclude that the trial court did not violate defendants jury trial rights when it sentenced him to the upper term for assault with a deadly weapon. A trial courts reliance on a defendants prior unsatisfactory performance on probation as a factor in aggravation is permissible when the unsatisfactory performance can be determined from the record of a defendants prior convictions. Here, defendants record of convictions establishes his prior unsatisfactory performance on probation.

A. Valid Use of Recidivist Factor

Cunningham held that Californias determinate sentencing law violated a defendants right to trial by jury and due process because it allowed a court, without a jury trial, to find facts necessary to impose the upper term. (Cunningham, supra, 549 U.S. at p. __ [166 L.Ed.2d at p. 876].) After the United States Supreme Courts decision in Cunningham, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II).Black II held that if one aggravating circumstance has been established in accordance with constitutional jury trial requirements, the upper term sentence is the statutory maximum. (Id. at p. 812.) [A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]] and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (Black II, supra, at p. 812, italics omitted.)

Therefore, we must determine here whether the court used at least one aggravating circumstance established in accordance with constitutional jury trial requirements. The prior conviction exception of Apprendi is not limited to the bare fact of a defendant's prior conviction. It extends as well to the nature of that conviction, including matters of recidivism that may be determined by examining the records of the prior criminal proceedings. (People v. McGee (2006) 38 Cal.4th 682, 704; Black II, supra, 41 Cal.4th at pp. 819-820.) Such an examination involves the type of inquiry that judges traditionally perform as part of the sentencing function. [Citation.] (People v. McGee, supra, at p. 709.)

The prior conviction exception thus extends to defendants prior performance on probation, as long as this aggravating factor may be found by simply referring to the record of prior convictions. (People v. Towne (2008) 44 Cal.4th 63, 82 (Towne); People v. Yim (2007) 152 Cal.App.4th 366 (Yim).) Defendant would have us reject this formulation of the prior conviction exception. He argues that it is not endorsed by the language of Apprendi . . . . For this proposition, however, he offers no citation to authority (other than the opaque reference to Apprendi) and does not provide further reasoning. We agree with Towne and Yim that factors found by looking at the record of prior convictions fall within the exception to the requirement that aggravating factors must be found by a jury.

B. Prior Unsatisfactory Performance on Probation

The probation report prepared in anticipation of defendants sentencing recommended imposition of the upper term for assault with a deadly weapon. The report noted that defendant was not on probation when he committed the current offenses. However, he had been on three years of probation previously for misdemeanor receiving stolen property. (Pen. Code,  496, subd. (a).) About one year after his conviction for receiving stolen property, and while still on probation, defendant was convicted of underaged possession of alcohol, an infraction. (Bus. & Prof. Code,  25662.)

With respect to defendants prior performance on probation, the probation report stated: [D]efendant appears to have successfully completed his prior grant of probation[;] however, he served the majority of his tenure on probation incarcerated in the Butte County Jail for a violation of [Penal Code sections 664/187]. Thus, his conditions of probation were not satisfactorily completed.

The prosecution filed a sentencing statement, agreeing with the probation report that defendants prior performance on probation was unsatisfactory, but for a different reason. In the statement, the prosecutor argued that it was proper to rely on defendants prior unsatisfactory performance on probation because, while on probation for receiving stolen property, defendant was convicted of possessing alcohol.

During the sentencing hearing in this case, defense counsel argued that the trial court should not find that defendants prior performance on probation was unsatisfactory. Counsel claimed that defendants incarceration should not be considered unsatisfactory performance on probation because defendant was eventually acquitted of the alleged crime for which he was held. In response, the prosecutor again noted the underaged possession of alcohol while defendant was on probation.

When the court imposed the upper term for assault with a deadly weapon in this case, it found factors in aggravation. The court stated: Circumstances in aggravation pursuant to Rule of Court 4.421, the crime involved great violence and acts disclosing a high degree of callousness. Execution of the crime indicated planning and the Court will find because of the conviction what [sic] he was on probation that his prior performance on probation was unsatisfactory.

C. Sufficiency of Record

Defendant asserts that the record was insufficient to sustain the trial courts finding that defendants prior performance on probation was unsatisfactory. He contends: Ascertainment of the truth of those assertions [concerning probation] requires examination of facts beyond those adjudicated in any prior conviction and also not readily apparent from court documents. The question of whether [defendants] prior performance on probation was unsatisfactory is not so objective and readily answerable by examination of court documents as to make jury trial an unnecessary formality. As it appears that the finding of unsatisfactory performance on probation concerned [defendants] being confined during his prior probation for a crime of which he was acquitted [citations to record], significant fact-finding may be needed.

Defendants contention ignores the trial courts express reliance on defendants conviction while on probation, not his incarceration while on probation, to find that his prior performance on probation was unsatisfactory. His conviction for underaged possession of alcohol and his probationary status at that time are plainly shown on the record. Therefore, defendants assertion that a jury trial was needed is without merit.

Violating the law while on probation constitutes unsatisfactory performance. (See Pen. Code,  1203.2, subd. (a) [allowing court to revoke if probationer commits criminal offense]; see also People v. Lippner (1933) 219 Cal. 395, 399 [obeying the law as a condition of every grant of probation].) Therefore, defendants conviction for underaged possession of alcohol while on probation constituted unsatisfactory performance. The record of defendants prior convictions conclusively establishes the unsatisfactory performance on probation.

Because of the existence of and the trial courts reliance on this aggravating factor, which need not be found by a jury under these circumstances, imposition of the upper term for assault with a deadly weapon did not violate defendants rights under Cunningham.^[4]

VI

Deadly Weapon Use Enhancement

The trial court imposed but stayed a one-year deadly weapon use enhancement (Pen. Code,  12022, subd. (b)(1)) to the term imposed for assault with a deadly weapon. For the first time in a petition for rehearing, defendant contends the trial court erred by staying rather than striking this enhancement because use of a deadly weapon is an element of assault with a deadly weapon. The Attorney General concedes the enhancement should have been stricken. We agree. [D]efendants use of the deadly weapon was not an additional factor, above and beyond the elements of [Penal Code] section 245, subdivision (a)(1) which would permit imposition of a weapon use enhancement under [Penal Code] section 12022, subdivision (b). Accordingly, the exception to the imposition of a weapon use enhancement set forth in [Penal Code] section 12022, subdivision (b) applies. (People v. McGee (1993) 15 Cal.App.4th 107, 116.)

DISPOSITION

The one-year enhancement for use of a deadly weapon, pursuant to Penal Code section 12022, subdivision (b)(1) is stricken. As modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting this change and send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

NICHOLSON , J.

I concur:

CANTIL-SAKAUYE , J.

I concur but write separately regarding part V to emphasize that the third aggravating circumstance cited by the trial court as a reason to impose the upper term was based on the fact that before committing the crimes prosecuted in this case, defendant had been twice convicted of other crimes--a conviction for which he had been placed on probation; and another conviction for a crime that he committed while he was on probation.

The right to a jury trial on sentencing factors does not apply to the fact of a defendants prior convictions. (Cunningham v. California (2007) 549 U.S. ___, ___ [166 L.Ed.2d 856, 864].) Here, as a reason for imposing the upper term, the trial court cited defendants prior convictions in the context that his prior performance on probation had been unsatisfactory. Nonetheless, this aggravating circumstance was based on the prior convictions and, therefore, did not have to be found true by a jury. Because the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term (People v. Black (2007) 41 Cal.4th 799, 813), his challenge to the upper term fails.

SCOTLAND, P.J.

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^[1] CALJIC No. 5.54, as given, states: The right of self-defense is only available to a person who initiated an assault if hes done all of the following: One, hes actually tried in good faith to refuse to continue fighting; two, he has by words or conduct caused his opponent to be aware as a reasonable person that he wants to stop fighting; and three, that he has by word or conduct caused his opponent to be aware as a reasonable person that he has stopped fighting. After he has done these three things, he has the right to self-defense if his opponent continues to fight.

^[2] CALJIC No. 5.55, as given, states: The right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense.

^[3] CALJIC No. 5.56, as given, states: The right of self-defense is only available to a person who engages in mutual combat if hes done all the following: One, he has actually tried in good faith to refuse to continue fighting; two, he has by words or conduct caused his opponent to be aware as a reasonable person that he wants to stop fighting. Three, he has by words or conduct caused his opponent to be aware as a reasonable person that he has stopped fighting; and four, he has given his opponent the opportunity to stop fighting. []  After he has done these four things, he has the right to self-defense if his opponent continues to fight.

^[4]Having found that the upper term sentencing did not violate defendants jury trial rights, we need not consider defendants argument with respect to whether he preserved this issue for consideration on appeal. We also need not consider whether retrial of the aggravating factors is permissible or whether any error was harmless.