P. v. Collette

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

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sutter)

----

An amended information accused defendant, Brock Alfred James Collette, of first degree murder (Pen. Code,  187, subd. (a), 189 - count one),^[1]carrying a loaded firearm ( 12031, subd. (a)(1) - count two), and related enhancing allegations. A jury convicted him of the lesser included offense of voluntary manslaughter ( 192, subd. (a)), found that he personally used a firearm in the commission of the offense ( 12022.5, subd. (a)(1)), and convicted him of carrying a loaded firearm. Defendant was sentenced to state prison for 15 years, consisting of the upper term of 11 years on count one plus the middle term of four years for firearm use. A concurrent middle term of two years was imposed for count two.

On appeal, defendant contends (1) evidence of self-defense was erroneously excluded, and (2) imposition of the upper term of imprisonment was an abuse of discretion. We shall remand for resentencing.

FACTS^[2]

Prosecution Case-In-Chief

The Dispute

At Nazario Chavezs residence in October 2005, defendant sold a video camera to victim David Hall, who lived next door to Chavez. Hall never paid the $150 purchase price. Defendant requested payment on several occasions, but each time Hall said that he would pay him later.

In December 2005, at defendants New Years Eve party, defendant told Hall [i]ts all right. You can just keep [the camera]. Defendant told Hall and Michael Moseley that he had a gun and was willing to die for what he believed in.

After some time, Chavez told defendant that Hall was not going to pay him for the camera. Defendant said that Hall did not have to pay and could keep the camera, but he asked Chavez to not bring Hall to defendants house anymore. When Chavez told Hall that he could not go to defendants house, Hall became upset and said, Fuck that, cuz. Im hood man. Its not going to go down like that. He is not going to disrespect me like that. Chavez told Hall that he should just pay for the camera.

On January 5, 2006, defendant telephoned Chavez. Defendant was upset and asked Chavez to talk to Hall. Chavez spoke with Hall and told him numerous times to leave defendant alone. Hall refused to leave defendant alone but then said that he would not bug him no more. Chavez called defendant back and told him that everything was okay.

That same day, defendant telephoned Halls cousin, Billy Walker, to talk about defendants quarrel with Hall. Defendant told Walker that if Hall persisted in threatening him or making him feel like he would have to fight Hall, defendant would kill Hall. Walker encouraged defendant to either fight with Hall or stay away from him. In response, defendant said he just wanted for [Hall] to leave him alone, but if Hall fucks with [him], then [he was] going to shoot [Hall]. Defendant also told Walker that he felt like God, like he could do anything, like he was controlling his own destiny. Walker felt that there was a possibility defendant would kill Hall, so he told Hall about the conversation.

The Firearms

One day between December 31, 2005, and January 5, 2006, Moseley saw a chrome .40-caliber Smith and Wesson in defendants bedroom and ammunition lined up on his night stand. The following day, Moseley saw this firearm in defendants kitchen. At a get-together at defendants house with Moseley, defendants roommate Tyler Sick, and Walker, defendant took out the firearm to show everyone.

During this same time, Walker saw defendant on two occasions with a firearm. The first time, defendant took the firearm out of a drawer in the bedroom, where there was also ammunition. The second time, defendant had the firearm at a party.

Chavez had two guns in his house, including one that was in a kitchen drawer on January 5, 2006.

The Shooting

On January 5, 2006, Chavez, defendant and Moseley had plans to attend a boxing match in Sacramento. At around 6:00 p.m., defendant drove Moseley in Chavezs car to Chavezs house. Because they would be passing by Halls residence, Moseley told defendant to be careful and to not underestimate Hall. Defendant replied that it was cool, meaning that the feud had been squashed. When they arrived, defendant parked the car in Chavezs driveway.

Defendant and Moseley entered Chavezs house and proceeded to the dining room. They saw Chavez in the kitchen and Hall sitting at the dining room table. Hall stood up and asked defendant, [d]o you have that .40 caliber on you, [W]hite boy? Defendant responded, I thought this was squashed. Hall replied, I can have my gun here in two seconds. Hall also said, Im going to beat your ass, [W]hite boy. Defendant turned pale and looked like he was going to cry. Chavez then responded, Oh, you guys. Just chill. Just sit down. Nothing is going to happen.

Following Halls statements, defendant left Chavezs house. Moseley left the house and saw defendant standing under a lamppost with his hands in his pockets. Moseley said come on, lets go, and defendant responded, I thought [this] was squashed. Defendant quickly walked back toward the front of Chavezs house with the .40-caliber gun in his left hip area.

While they were alone Chavez told Hall, its not cool to disrespect [people] in my house. As Hall walked toward the door to leave, Chavez heard defendant come back into the house. Defendant asked Hall, [a]re we cool, and Hall answered, [n]o, Im not cool. When Chavez saw them, they were two feet apart standing face to face. Defendant asked Hall once again if they were cool, and Hall said no. Chavez saw defendant pull his gun from his waist and shoot Hall in his right cheek. Chavez immediately called 911.

After the shooting, defendant ran out of the house and got into Chavezs car. Moseley ran down the street. Chavez ran out of the house yelling, Brock, what did you do? and what the fuck were you thinking? Defendant pulled up alongside Moseley and told him to get in the car.

Yuba City Police Officer Brent Novak arrived at the shooting scene and saw Hall sitting on his buttocks being cradled by his father, Bayard Hall. Novak summoned medical assistance.

When Moseley sat down in Chavezs car after the shooting, he felt the pistol underneath him. Defendant told Moseley, Its over. Its squashed. [] . . . [] I killed him. Moseley told defendant to let him out of the car. Defendant did not comply and responded, I have to get you someplace safe and I have to get out of here. Defendant added that he needed a new car and needed to leave the state. He was super calm while in the car. When Moseley saw a Yuba City police car, defendant said we are cool, we are cool. Officer Enrique Jurado recognized the subject car and conducted a traffic stop.

When Officer Jurado approached the car, he saw a handgun on the front passenger seat. He secured the scene until Yuba City Detective Steven Thornton arrived. Thornton examined the car and found a silver-colored Smith and Wesson automatic handgun, a magazine, and .40-caliber ammunition.

A forensic pathologist testified that the gunshot wound to Halls cheek resulted in the loss of a great amount of blood, much of which was aspirated or inhaled, blocking Halls windpipe and causing his death. A criminalist testified that defendants gun fired the cartridge recovered at the crime scene.

Defense

Defendant testified at trial. He met Hall in September 2005 at Chavezs house. Defendant met Walker and Harry Solomon through Chavez as well.

In October 2005, defendant sold Hall a camera for $150. Hall said that he would pay for it in one week, but he never did. Three weeks after the sale, defendant asked Hall to pay him and Hall said that he would pay in a couple of days. Two weeks later, defendant asked again and Hall gave him the same response. A couple of days into 2006, Chavez told defendant that Hall was not going to pay for the camera. Defendant told Chavez that it was okay because his New Years resolution was to think positive in life and to not let negative people affect him. Defendant told Chavez that he was not mad at Hall, but he requested that Chavez not bring Hall to his house anymore.

On January 3, 2006, Chavez asked defendant if he could bring Hall to defendants house. Defendant again asked him not to bring Hall over. Between 11:00 p.m. and midnight, Hall telephoned defendant and said, Hey, mother fucker. Im not welcome at your house anymore, bitch? . . . No one disrespects me. Im Crip. When I see you, you are fucking dead on Crip, cuz, on my momma. Im taking your ass to the streets. Im not welcome at your house anymore? Ill spray it too and anybody else in there. Im on my way.

The threat scared defendant, because it told him that he would be killed. He had seen Hall handling guns at Chavezs house two weeks previously. Hall had told Chavez that if Chavez could fix one of the two guns they were handling, Hall would take it. Once Chavez fixed the gun, Hall said that he would keep it at Chavezs house, because Hall already had a gun under the seat of his car. When defendant asked why there was a gun in the car, Hall explained that he was a Crip and had been involved in drive-by shootings of Bloods.

After receiving the threat from Hall, defendant discussed it with Moseley and Walker who were at his house. Defendant asked Moseley if Hall was serious and Moseley told him not to underestimate Hall. During the conversation, Walker received a telephone call from Hall. Following the call, Walker told defendant that his cousin is tripping and that Hall was trigger happy. . . . He gets pissed off about things real easily. Walker told defendant to be careful. Defendant responded that he was thinking of calling the police, but Walker asked him not to do so and said that he would handle the situation. Fearful that Hall was on his way, defendant left the house and told Moseley and Walker to leave as well. Defendant went to his friend Aaron Bishops house because he needed protection from Hall, and Bishop was the only person defendant knew who had a gun. Enroute to Bishops house, Walker told defendant that Hall was tripping and that Walker would talk to him. Walker also told defendant to contact Chavez. Defendant did so, and Chavez told him that Hall was pissed off and just acting crazy. After defendant explained to Bishop what had happened, Bishop gave defendant a gun and showed him how to use it. Defendant left Bishops house at 4:00 a.m. on January 4, 2006.

When defendant got home, he told Moseley and Sick that he had obtained the gun to protect himself and his house. He explained that he would keep the gun under his pillow in case Hall tried to kill him. A few hours later, defendant called Chavez and asked for his help. Chavez said that he would speak to Hall. Defendant stayed away from his house the entire day to avoid seeing Hall. Defendant again called Chavez, who told him to be careful because Hall was really pissed. That night, defendant asked Chavez and Walker to come to his house to see how stressed out he was. They arrived at around midnight.

Defendant denied that Walker had told him to just fight with Hall and get it over with. Defendant also denied that he had told Walker that he felt that he had God in him. However, he had asked Walker to pray for him. Defendant told Walker that he had the gun for his protection and asked Walker to get Hall to leave him alone. Defendant said that he would use the gun if Hall tried to kill him.

On January 5, 2006, defendant went to Chavezs house to borrow a car. He asked Chavez for advice. Then he took the car and met his friends Amanda Driggers and Patrick Lay for lunch.

Around 3:30 p.m., defendant received a telephone call from Hall. He said, Brock, I heard you got a gun. You think that is going to keep you safe? Aint nothing going to protect your ass, [W]hite boy. Today Im going to put a fucking bullet in your head. Defendant told Hall that he did not want any problems with Hall and asked what he had done to deserve this treatment. He told Hall that he could keep the camera and said that he only wanted to coexist with Hall. Hall responded, [t]his aint about the camera, bitch. This is about respect. You disrespected a Crip. And when I see you, Im going to fucking bury your ass. Defendant responded that he had no choice but to call the police. Hall replied, [g]o ahead and call the cops, mother fucker. Ill make one phone call, and Ill kill everybody you love. Defendant told Hall not to involve his family. Hall responded, you dont get nobody to protect you. If you get anybody to protect you, you get the police and call -- if you get the police involved, Ill make one phone call and my set will kill everybody you love. . . . [] . . . [] If you think Im lying, call the police. I fucking dare you. Call the police. I know where your mom and dad live. Ill kill them too. Hall described defendants parents house to him and claimed to know where they worked. Defendant told Hall not to hurt his family and promised not to call anyone. Defendant was hysterical during the telephone call. Driggers overheard most of the conversation.

Before going to lunch, defendant telephoned Walker and told him about Halls telephone call. Walker told defendant that he would see what he could do, and he suggested that defendant call Chavez. Defendant tried without success to contact Chavez. Driggers suggested that she contact her father, a police officer, but defendant made her promise that she would not do so. After lunch, defendant telephoned Hall and promised that he would not call the police. He asked Hall to kill only defendant and no one else. Hall responded that, [i]f its between me and you, aint shit else going to happen. Defendant then called Walker, said that he believed he would not live through the day, and asked Walker to pray for him.

After lunch, defendant took his friends home and received a call from Chavez. Chavez said that the situation had gone too far and that he would talk to Hall. Chavez told defendant to relax and get ready for the boxing match. Ten minutes later, Chavez called again and said that he had spoken to Hall and that everything was going to be cool. Defendant felt better after this conversation but still felt that his life was in danger.

Thereafter, Moseley arrived at defendants house. Defendant told Moseley that he would return the gun because Chavez had assured him that everything would be okay. Defendant kept the gun on him because he intended to return it to Aaron Bishop after he picked up Chavez. On the way to Chavezs house, defendant was still stressed out so he smoked some marijuana.

When defendant and Moseley arrived at Chavezs house, defendant did not expect Hall to be there because Chavez had so assured him. When defendant walked in, he saw Hall and a box that previously had contained Halls gun. Hall asked defendant, [y]ou got that .40 cal on you, [W]hite boy? Defendant put up his hands, shook his head, and told Hall that he thought their dispute was over. Hall walked toward defendant and said, [f]uck that. Ill have my gun in two seconds. Get your ass to the street, mother fucker. Defendant turned and walked out of the house, believing that Hall was about to shoot him. Moseley and Solomon soon followed.

Defendant decided to flee to his brothers out-of-state residence and to personally warn Hall to not shoot up [defendants] parents house thinking [that he] was hiding out there. When defendant walked into the house, calling for Hall, Hall came at him and pushed him with both hands. Defendant said, David, David, I know we can be cool; right? Hall said, [f]uck no. You are dead. Hall took a step back and reached underneath his shirt. Defendant saw and felt a gun. He knew [he] was going to die right then, so he pulled his own gun from his waist and shot as fast as he could. When Chavez asked what had happened, defendant fled.

Hall had a reputation for carrying guns, being involved in unprovoked attacks on individuals, and being a hot head. Prior to the shooting, Chavez had told Solomon to bring his gun downstairs and put it on the kitchen table. After the shooting, Chavez told Solomon to quickly take the gun upstairs.

Defendant presented two character witnesses who testified to his nonviolent reputation.

DISCUSSION

I.

Defendant contends his sole defense of self-defense was undermined by the exclusion of evidence that was relevant to show Halls violent, aggressive character and to adequately explain the context of defendants actions. We are not persuaded.

Background

By way of motions in limine, defendant sought to introduce (1) evidence that Hall was a violent Crip gang member, (2) evidence of Halls arrest record and adjudications for assault with a deadly weapon and brandishing a gun, (3) evidence of Halls character for violence and unprovoked attacks, (4) evidence of his threats and aggression toward defendant, (5) evidence that defendant had witnessed or knew of Halls violence, (6) evidence that defendant had knowledge of Halls prior threats against third persons, and (7) evidence that Halls fellow gang members and friends had told defendant that Hall was serious about shooting and killing defendant.

The prosecutor filed motions in limine requesting exclusion of evidence of (1) Halls membership in a criminal street gang, (2) Halls prior bad acts, and (3) Halls possession of a firearm.

Following argument, the trial court ruled that the relevance of Halls gang membership was substantially outweighed by the consumption of time to prove or disprove that fact and by confusion. However, the court allowed defendant to testify to Halls references to Crip while threatening him and to Halls explanation of his gun possession by referring to the feuds between Crips and Bloods.

The trial court remarked that if it allowed evidence of Halls Crip gang membership, there will necessarily be a trial within a trial on whether or not among other things Mr. Hall was a gang member, who his fellow gang members were, the significance in gang parlance of the alleged threats before [defendant] and other issues. Such evidence would take a significant amount of time and open the trial to a host of issues, many of which have no clear guidance in California law. [] The issues involved in proving gang membership are perhaps more complicated and subtle and at this point in time undeveloped in legal terms than the issues involved in the underlying homicide charge. Therefore, even if the evidence is relevant and admissible, the time consumption, the potential for confusion of the issues concerning gang issues is high.

As to the prosecutors motion in limine, the trial court stated that the general rule is that gang membership evidence is admissible only when logically relevant to some material issue on a particular case. Evidence of gang membership generally is not admitted if its only tangentially relevant given its highly inflammatory impact. Gang evidence must not be cumulative to other properly admitted unless [sic] inflammatory evidence. [] As it relates to threats to [defendant] by Mr. Hall, the gang evidence thats been offered is cumulative to the threat. As to witnesses other than [the victim], who clearly will not be testifying, evidence of gang membership would not be permissible in this case under [Evidence Code section] 1101. To the extent that gang evidence would go to the bias of other witnesses, there is from what has been presented to the Court to date substantial other evidence of bias. [] The Court concludes that any relevance of gang evidence is substantially outweighed by the consumption of time that it would take to prove or disprove gang membership or gang significance, that it would lead to confusion, and that the time and the confusion clearly outweighs the relevance.

However, the court did not limit the statements Hall made to defendant, such as Im Crip. The court explained that if the statement referenced gang affiliation or membership, we are not going to sanitize the statement by removing gang references.

Thus, defendant testified that when Hall learned defendant did not want him as a houseguest, he invoked his gang membership stating, Hey, mother fucker. Im not welcome at your house anymore, bitch? . . . No one disrespects me. Im Crip. When I see you, you are fucking dead on Crip, cuz, on my momma. . . . Im not welcome at your house anymore? Ill spray it too and anybody else in there. (Italics added.)

Defendant testified that when he pleaded with Hall, telling him that he could keep the camera, Hall said, This aint about the camera, bitch. This is about respect. You disrespected a Crip. And when I see you, I am going to fucking bury your ass. (Italics added.)

Patrick Lay heard Hall threatening defendant saying, You [W]hite piece of shit. Im going to fucking kill your ass. How dare you disrespect me. Im fucking Crip. How dare you talk to me like that. (Italics added.)

Amanda Driggers heard Hall tell defendant, Fuck you, you pussy ass little [W]hite bitch. Im going to fucking kill you. . . . You messed with the wrong person. . . .Im on Crip. . . . You dont know what I am a part of. (Italics added.)

Analysis

Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.] [Citation.] (Peoplev.Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

Defendant claims the trial court abused its discretion by excluding expert testimony that would have explained how gang members interact with non-gang members and the heightened importance of respect within gang culture, highlighting the fact that as a Crip, Hall would be willing to seriously injure or kill someone over a perceived slight that would seem insignificant to a non-gang member. In defendants view, the excluded evidence provided an explanation for Halls violent overreaction to [defendants] minimal social slight against him. It also supported [defendants] claim that Hall was armed and that [defendant] acted in fear for his life. With the benefit of the excluded information, the jury would likely have determined Hall intended to seriously harm or kill [defendant] and that [defendant] responded reasonably.^[3] (Italics added.) We find no abuse of discretion.

To be entitled to the defense of self-defense, one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury. [Citation.] (People v. Randle (2005) 35 Cal.4th 987, 994.) Having left Chavezs house and Halls presence, defendant successfully removed himself from any imminent danger and faced, at most, a threat of future harm. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [mere fear of future harm does not warrant self-defense].) But rather than perfect his escape and deliver his message about leaving the state through an intermediary, as he had done in earlier stages of the conflict, defendant chose to reenter Chavezs house and again confront Hall.

The principles of self-defense are founded on the doctrine of necessity. (People v. Hardin (2000) 85 Cal.App.4th 625, 629.) No necessity for the renewed confrontation and the ensuing claim of self-defense was shown. Thus the proffered evidence would have provided only minimal support for a reasonable belief in the necessity of self-defense. (People v. Randle, supra, 35 Cal.4th at p. 994.)

To the extent the excluded evidence would have painted Hall as more dangerous than he otherwise appeared, it also would have exposed defendants actions as less reasonable, rather than more so. The excluded evidence suggested that no reasonable person desirous of protecting his life would have reentered the danger zone as defendant had done.

Because the evidences probative value on the issue of defendants reasonable belief was slight, the trial courts finding that such value was substantially outweighed by consumption of time and confusion of issues was not arbitrary, capricious or patently absurd. (Peoplev.Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)

Defendant claims the trial court erred by excluding evidence of a prior armed altercation involving Hall and two others, during which Hall possessed and brandished a firearm, on the ground that defendant was not personally aware of the prior act. He claims Evidence Code section 1103 allows evidence of a victims prior acts of aggression and violence to show that the victim was the present aggressor, regardless of the defendants contemporaneous knowledge of the victims prior acts. We shall assume for present purposes that defendant is correct and the court should have admitted the evidence. (E.g., People v. Shoemaker (1982) 135 Cal.App.3d 442, 447-448 [evidence of victims subsequent acts of violence, when offered by the defendant in a criminal case, is relevant and admissible under section 1103 to prove the victims violent character at the time of the earlier crime, even though defendant necessarily had no contemporaneous knowledge].)

Nevertheless, by acquitting defendant of murder and convicting him of voluntary manslaughter, the jury impliedly concluded that defendant had an actual belief in the necessity to defend himself from Hall. Because that portion of the defense was proved, exclusion of Halls prior acts could not have been prejudicial on the issue.

The excluded evidence might have confirmed that Hall was dangerous, but it could not have suggested that a renewed confrontation that night with the dangerous Hall was reasonable or necessary; rather, it would have suggested the opposite. It is not reasonably probable that defendant would have fared better had this evidence been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.)

II.

Defendant contends the trial court erred at sentencing by finding unsupported aggravating factors and abused its discretion by ignoring its own factual determinations. We conclude the matter must be remanded for resentencing.

Pursuant to section 1170, subdivision (b), as amended in 2007 (Stats. 2007, ch. 3 (SB 40)), the trial court found five aggravating circumstances:

[(1)] [T]he crime involved great violence or other acts disclosing a high degree of cruelty, viciousness, or callousness, to wit, an unarmed victim was shot at close range.

[(2)] The victim was particularly vulnerable, as indicated, he was unarmed in someone elses house.

[(3)] The defendant was convicted of another crime for which a consecutive sentence could have been imposed, that is, Count 2, but for which a concurrent sentence is going to be imposed.

[(4)] The manner in which the crime was carried out demonstrates criminal sophistication or professionalism on the part of the defendant.

[(5)] The defendant engaged in violent conduct, which indicates a serious danger to society.

The trial court found one mitigating circumstance: the crime was committed because of an unusual circumstance, which is unlikely to recur. The court did not find a second mitigating circumstance recommended by probation: that the victim was an initiator of, willing participant in, or aggressor or provoker of the incident.

Based on these findings, the trial court sentenced defendant on count one to the upper term of 11 years, plus the middle term of four years for personal use of a firearm. The court imposed a concurrent middle term of two years for count two.

Defendant claims Finding Nos. 1, 2, 4 and 5 are not supported by sufficient evidence. He claims Finding No. 3 was an abuse of discretion because a consecutive term would have been appropriate and could have been imposed. We agree that Finding Nos. 1, 2, 4 and 5 lack sufficient evidentiary support. Although we disagree that Finding No. 3 was an abuse of discretion, remand is required because it is unclear whether the trial court would have imposed the upper term had it concluded, as do we, that only Finding No. 3 is valid and the others lack evidentiary support.

As to Finding No. 1 (the crime involved cruelty, viciousness or callousness), we note that nothing about this crime, not even the fact that Hall was unarmed and was shot at close range, demonstrated a high degree of cruelty, viciousness, or callousness beyond that inherent in voluntary manslaughter. The crime was committed in minimalist fashion with a single surprise shot. (Compare People v. Webber (1991) 228 Cal.App.3d 1146, 1170 [viciousness and callousness shown where false imprisonment victim was forced under threat of being shot to aimlessly drive the defendant around]; People v. Collins (1981) 123 Cal.App.3d 535, 539 [In our view, one who holds a cocked gun to his victims head over a period of several hours is significantly more culpable than one who merely points the weapon at the victim. The conduct of the former is certainly indicative of viciousness and callousness].)

As to Finding No. 2 (the victim was particularly vulnerable), the evidence showed that after buying a video camera from defendant and then refusing to pay for it, Hall began making continuous death threats to defendant and his family, refusing to back down even when defendant tried to defuse the situation by, among other things, telling Hall that he did not have to give defendant any money for the camera. When, on the day of the shooting, defendant arrived at Chavezs home and unexpectedly found Hall there, Hall was again the aggressor. Having apparently heard that defendant had obtained a gun to protect himself against the threats, Hall stood up and confronted defendant, defiantly saying: Do you have that .40 caliber on you, [W]hite boy? When defendant replied that he thought the problem had been squashed, Hall made it plain that Hall was still a threat to defendant. Saying he could get his gun in two seconds, Hall told defendant, Im going to beat your ass, [W]hite boy, causing defendant to turn pale and look like he was going to cry.

Vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendants criminal act. [Citation.] (People v. Webber, supra, 228 Cal.App.3d at p. 1170.) For example, a woman asleep in her darkened residence is more vulnerable than a woman fending off a rapist on a dark street or in a public restroom. (People v. Huber (1986) 181 Cal.App.3d 601, 629.)

Here, however, Hall could have adequately defended, guarded, and protected himself simply by leaving defendant alone. (People v.Webber, supra, 228 Cal.App.3d at p. 1170.) Instead, Hall invited their final confrontation by boldly confronting defendant after he had just threatened to kill defendant and his family. Under these circumstances, it cannot be said that Hall was particularly vulnerable to defendants attack.

As to Finding No. 4 (the manner of crime demonstrates sophistication or professionalism), the evidence showed that defendant did not expect Hall to be at Chavezs home and, thus, did not go there with a plan to attack Hall. Indeed, the evidence showed that defendant was trying to avoid Hall. It was not until Hall threatened defendant again, causing him to turn pale and look like he was going to cry, that defendant went outside and stood under a lamppost before returning to the house with a gun. Even then, he did not immediately shoot Hall. Instead, defendant twice asked Hall, Are we cool? Only when Hall twice said no did defendant shoot him.

The Attorney General argues that professionalism imparts the notion of experience, but the record does not suggest that defendant was an experienced shooter. The Attorney General argues that sophistication connotes a scheme of operation, but no evidence suggests that defendant acted pursuant to any such scheme. Rather, as the Attorney General concedes, defendant simply left Chavezs residence, walked to his car, took out the gun, walked back to the house, opened the door, and killed Hall. Far from being sophisticated, these acts are little more than the minimum required to commit voluntary manslaughter with a firearm.

This brings us to Finding No. 5, that defendant engaged in violent conduct indicating that he is a serious danger to society as a whole. After making this finding, the court found in mitigation that the crime was committed because of an unusual circumstance, which is unlikely to recur.

Defendant correctly notes that these two findings are contradictory. The Attorney General appears to reconcile them by rephrasing the former in the past tense, arguing that the violent conduct indicated a serious danger to society. (Italics added.) When both findings are properly read as prognosticators of future conduct, the conflict between them becomes apparent and the mitigating factor equalizes, if not cancels, Finding No. 5. The sentencing rules do not intend to found an upper term upon a serious danger to society as a whole that is unlikely to occur.

The only other circumstance the trial court cited for imposing the upper term is that defendant was convicted of carrying a loaded firearm, for which a consecutive sentence could have been imposed but was not--the court imposing instead a concurrent sentence. (Cal. Rules of Court,^[4]rule 4.421(a)(7).) By application of that rule, the base term for manslaughter was increased by five years (from six years to 11), and the subordinate term for the firearm was reduced from eight months to zero, for a net increase of four years four months. In defendants view, the court engaged in manipulation to secure the highest term possible.

We disagree. Defendants apparent argument, that the upper term was an abuse of discretion because a consecutive term was appropriate, and, in the rules words, could have been imposed, would bar the use of the rule in every case for which it was designed.

The trial court cited the familiar rule that a single factor is sufficient to support the imposition of an upper term. (E.g., People v. Osband (1996) 13 Cal.4th 622, 728.) But it is uncertain whether the court would have sentenced defendant to the upper term had it understood that the evidence failed to support four of the five aggravating factors. As the probation report noted, defendant -- who was 18 years old at the time of the shooting -- had a minimal record as a juvenile for driving [his automobile on a levee] and being a minor in possession of alcohol, and had no adult arrests other than for the crimes at issue in this case. Moreover, the probation report recommended an additional mitigating factor: that the victim was an initiator of, willing participant in, or aggressor or provoker of the incident. (Rule 4.423(a)(2).) We have already set forth the abundant evidence supporting this factor. The trial court did not explain why the factor was rejected.

The erroneous findings of four aggravating factors, plus the unexplained rejection of a mitigating factor, raise a reasonable probability that a more favorable sentence would have been imposed in the absence of the error. (People v. Osband, supra, 13 Cal.4th at p. 728; People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant is entitled to a new sentencing hearing at which the inapplicable aggravating factors are excluded from consideration and all mitigating factors are expressly considered. (People v. Covino (1980) 100 Cal.App.3d 660, 672.)

DISPOSITION

The judgment of conviction is affirmed. The sentence is vacated and the matter is remanded for further proceedings consistent with this opinion.

CANTIL-SAKAUYE , J.

We concur:

SCOTLAND , P.J.

NICHOLSON , J.

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^[1] Further undesignated statutory references are to the Penal Code.

^[2] The statement of facts in defendants opening brief is unhelpful because it consists primarily of his own testimony.

^[3] Defendant claims the expert testimony would not have been cumulative to the threat[s], as found by the trial court, but would have explained the nature and significance of the threats in a way the bare words could not convey. We shall assume for present purposes that this claim is correct. For the reasons we explain, exclusion of the evidence was not an abuse of discretion.

^[4] Further references to rules are to the California Rules of Court.