P. v. Newman

Filed 9/20/07 P. v. Newman CA2/3

Opinion following remand from U.S. Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Arthur Jean, Jr., Judge. Affirmed in part; reversed in part.

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jamie L. Fuster and Douglas L. Wilson , Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________________

Defendant and appellant Henry Newman shot and killed his adult son in the course of an argument. He was convicted of voluntary manslaughter, and the jury found to be true an allegation that he had used a firearm. Defendant was sentenced to 21 years in prison, consisting of the upper term for both the manslaughter conviction and the firearm enhancement. In our original opinion, filed October 20, 2006, we affirmed defendants conviction and found no error in the imposition of his sentence. On July 11, 2007, the United States Supreme Court vacated the judgment and remanded the case for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856].) We conclude that the matter should be remanded to the trial court for a further sentencing hearing. In all other respects, we affirm the judgment.^[1]

FACTUAL AND PROCEDURAL BACKGROUND

On the afternoon of July 3, 2004, after defendant returned home from golfing, he had an argument with his son, Alex. Defendant directed Alex to leave. Alex entered his car and began to drive away, but reversed his car and returned to a location in front of defendants home, where he continued to yell at his father, who was on the porch. Alex began to drive away only to return two more times, to continue to curse at and threaten defendant from the seat of his car. Defendant, who had, by this time, armed himself with a pre-World War II British military rifle, just snapped. He decided to shoot Alexs car. Defendant had purchased the car for Alex some years prior, so believed that he owned it. He intended the shot to warn Alex to get away, so wanted to be careful not to pierce the cars tires, so that Alex would be able to leave. He took aim just above the passenger-side rear tire of Alexs car and attempted to fire. No bullet was expelled. Defendant then remembered that he did not store the rifle with a bullet chambered.^[2] He pulled the bolt back and chambered a round. He aimed again and fired. The bullet traveled through the passenger compartment and hit Alex in his lower back.

Alex immediately drove off. His car continued down the street where it ultimately crashed into a building. A small crowd gathered around the accident scene, not realizing that Alex had been shot. When neighbors recognized Alex in the car, they tried to reach defendant on his cellular telephone. Defendant did not immediately answer; feeling guilty for having fired a weapon, he was hiding the rifle in his shed. Ultimately, defendant was reached by telephone, and the neighbors told him that Alex had been in an accident. Defendant walked to the scene of the crash.

Firefighters had also been called to the scene. When the firefighters realized Alex had been shot, they asked the crowd if anybody knew where the shooter was. Defendant identified himself, saying that he was the shooter.

Defendant was charged by information with the crime of murder (Pen. Code,  187, subd. (a)) and it was also alleged that he personally used, intentionally discharged, and caused death by intentionally discharging, a firearm (Pen. Code,  12022.53, subds. (b), (c) & (d)). Defendant pleaded not guilty and proceeded to jury trial.

At trial, defendant admitted having fired the fatal shot, but testified that he was so outraged by Alexs verbal attacks and refusal to leave that he really lost it and his mind was gone when he decided to shoot at Alexs vehicle.^[3] At trial, defendant admitted knowing that shooting a rifle at any part of a vehicle could ultimately result in someones death. He admitted that he knew this at the time of the shooting, but took the position that he was not thinking properly at that time. However, shortly after the shooting, defendant told police,  If my granddaughter was in the car, I wouldnt have fired that gun. 

During defendants testimony, a trial spectator stood up and shouted at defendant, saying that defendant did not love his son, and making a reference to an unknown incident in a driveway involving defendants golf clubs. Defendant moved for a mistrial. The trial court denied the motion for mistrial and instead admonished the jury to disregard the spectators outburst.

During jury deliberations, one juror asked permission to ask the judge a question alone. The juror then asked the judge if it was possible to learn the color or brand name of defendants golf bag. The trial judge could see no possible relevance to the question and, fearing misconduct, asked the juror the purpose of her question. The juror was reluctant to answer because she did not want to disclose the proceedings in the jury room. The juror stated she would prefer to withdraw her question rather than tell the trial court why she had asked it. While the prosecutor requested the trial court to press the inquiry, defendant repeatedly asked the trial court to allow the juror to withdraw her question and simply return to deliberating. The trial court ultimately allowed the juror to return to deliberations. Immediately thereafter, defense counsel recalled that the spectators outburst had included a mention of golf clubs. Defense counsel therefore reversed position and requested the trial court to conduct a limited inquiry to make certain the juror was not considering the subject matter of the outburst. At this point, the jury returned with its verdict.

The jury found defendant not guilty of murder, but guilty of voluntary manslaughter. The jury found true the allegation that defendant had personally used a firearm (Pen. Code,  12022.5, subd. (a)).^[4]

Defendant did not file a motion for new trial. At the sentencing hearing, defendant argued there were no factors in aggravation but two factors in mitigation. The trial court found true the aggravating factor that defendant was on probation at the time of the offense. The prosecutor suggested as further factors in aggravation defendants lack of remorse and victim vulnerability. Defense counsel did not argue against either proposed aggravating circumstance, but only stated that defendant wished to offer a short statement, at which time defendant explained he was very remorseful. The trial court concluded that victim vulnerability justified the imposition of the upper term for voluntary manslaughter and that defendants probationary status and unsatisfactory performance on probation^[5]justified the imposition of the upper term for the firearm enhancement. Defendant was sentenced to 21 years in prison. He filed a timely notice of appeal.

ISSUES ON APPEAL

Defendant contends the evidence was insufficient to support his conviction for voluntary manslaughter in that there was insufficient evidence he acted in conscious disregard for human life; we disagree. Defendant contends the trial court erred in denying his motion for mistrial based on spectator misconduct; we find no abuse of discretion. Defendant contends the trial court erred in failing to inquire regarding possible jury misconduct; we conclude defendant waived the bulk of his challenge by requesting the trial court not to inquire. The remaining allegation of jury misconduct was insufficient to mandate inquiry. Defendant contends the trial court erred in imposing the upper term on both the offense of voluntary manslaughter and the firearm enhancement on the basis of factors not found true beyond a reasonable doubt by the jury. We conclude that ambiguities in the record raise sufficient questions regarding the factors on which the trial court relied such that the appropriate course is to remand for resentencing.

DISCUSSION

1. There was Sufficient Evidence of Implied Malice

In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Peoplev. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jacksonv. Virginia (1979) 443 U.S. 307, 317-320.) (Peoplev. Rodriguez (1999) 20 Cal.4th 1, 11.)

Murder is the unlawful killing of a human being with malice aforethought. [Citation.] Malice may be either express or implied. It is express when the defendant manifests a deliberate intention unlawfully to take away the life of a fellow creature. [Citation.] It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. [Citation.] We have noted in the past that this definition of implied malice has never proved of much assistance in defining the concept in concrete terms [citation], and that juries instead should be instructed that malice is implied when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life [citation]. For convenience, we shall refer to this mental state as conscious disregard for life.  (People v. Lasko (2000) 23 Cal.4th 101, 107.)

Manslaughter is the unlawful killing of a human being without malice. [Citation.] A defendant lacks malice and is guilty of voluntary manslaughter in limited, explicitly defined circumstances: either when the defendant acts in a sudden quarrel or heat of passion [citation], or when the defendant kills in unreasonable self‑defense the unreasonable but good faith belief in having to act in self defense [citations]. [Citation.] (Id. at p. 108.) When a defendant kills in the heat of passion, that defendant lacks malice, despite the defendants intent to kill or conscious disregard for life. (Id. at pp. 104, 109.) The malice is negated by the provocation, and the offense is mitigated from murder to voluntary manslaughter. (Id. at p. 110.) To convict a defendant of voluntary manslaughter, the prosecution must prove the existence of a mental state that would constitute malice, but for the fact the killing was committed in an adequately provoked heat of passion. (Id. at p. 111.)

On appeal, defendant contends the evidence was insufficient to prove that he acted with a mental state that would otherwise constitute malice were it not for the provocation. The contention is meritless. Defendant intentionally shot a rifle at an occupied vehicle, intending to frighten his son. Defendant knew that this was dangerous to human life; indeed, he told police that he would not have fired if his granddaughter had been in the car. This is sufficient evidence to establish conscious disregard for life. (See also People v. Laws (1993) 12 Cal.App.4th 786, 794 [implied malice can be established if one simply wishes to scare another by shooting a gun in the direction of the other person intending the bullet to just miss that person].) On appeal, defendant states that clearly any anger engendered by Alexs actions clouded any thought that his actions were done with a conscious disregard for life. On the contrary, the jury concluded that defendant was sufficiently provoked for the killing to be mitigated from murder to manslaughter, but not so impaired as to lack a conscious disregard for life. As defendant had the presence of mind to take careful aim at a spot on his sons car (specifically wanting to shoot above the tire), pull back the bolt on his weapon to chamber a round, and aim a second time before firing, the jurys verdict was well-supported.^[6]

2. The Motion for Mistrial Based on the Spectators Outburst
Was Properly Denied

During defendants testimony, the following occurred:

Q. At the time that you shot the car, were you intending to shoot Alex?

A. By no means. I love my son with all my heart. I raised him from a baby.

Unidentified Speaker: You didnt do that

The Court: Just a moment, sir. Please step outside.

Unidentified Speaker: When he was in your driveway

The Court: Just step outside sir. Now.

Unidentified Speaker: I know with your golf clubs --

At this point, the trial court obtained further security and called a recess. Following the recess, defense counsel moved for a mistrial on the basis of the spectators outburst, explaining that the unidentified speaker made some statements about how could you have not intended to shoot him or how could you say you loved him, something because of some incident that happened in a driveway. Defense counsel argued that the statement was prejudicial because the jury might believe [defendant] has a tendency for violence or there was some other occasion.

The trial court denied the motion for mistrial and admonished the jury as follows: First of all, let me apologize to you for the disturbance that occurred. It is not going to happen again. That gentleman has been taken out of the courthouse. It will not happen again. [] Secondly, as you know, as you suspect, you may not know but you suspect that emotions can run very, very high in situations like this. And so some forbearance and understanding from all of us has to be accepted to a certain degree. [] Thirdly, please remember that what happened here, the disturbance that happened wasnt caused either by the prosecution or by [the defendant]. It should in no way affect your decision making in this case. You should hold it neither for nor against either side in the case. You are here as dispassionate fact finders and applicators of the law to the facts. Remember that admonition.

On appeal, defendant asserts, with no further argument, that the trial court erred in denying his motion for mistrial. Misconduct on the part of a spectator is a ground for mistrial if the misconduct is of such a character as to prejudice the defendant or influence the verdict. [Citation.] A trial court is afforded broad discretion in determining whether the conduct of a spectator is prejudicial. (People v. Lucero (1988) 44 Cal.3d 1006, 1022.) When there is only an isolated outburst, and the trial court follows it with a prompt admonition, there is no abuse of the trial courts discretion in denying a motion for mistrial. (Id. at p. 1024) In this case, the spectators outburst was not, on its face, particularly prejudicial. The trial courts decision to respond with a prompt admonition, rather than a grant of a mistrial, was not an abuse of discretion.^[7]

3. Defendant Has Not Established Reversible Error
With Respect to Juror Misconduct

Defendant next suggests he was denied a fair trial in that the jury committed misconduct when relying on information which was the subject of the spectators outburst. As the course of the inquiry into potential juror misconduct is critical to an understanding of our disposition of defendants contention, we set forth the proceedings at length.

During deliberations, the jury requested a readback of defendants testimony regarding his thinking when he raised the gun and described aiming/shooting at the car. Shortly after the readback, Juror No. 8 sent the trial court a note asking permission to ask a private question without the rest of the jury present. The court agreed, but informed Juror No. 8 that defendant and counsel for both sides were entitled to be present. Juror No. 8 then gave the court her question on a jury question form,^[8]which read, Can I ask what colors was [defendants] Golf bag and the name brand of the bag. After reviewing the question, the trial court asked, Whats the problem? Juror No. 8 explained, It was just a question I had that it rose up. It is kind of it kind of helps make a decision. But if you cant answer --. The court expressed shock at the question, asking, what possible relevance could the colors of the golf bag have? Juror No. 8 repeated that it was just to help make a decision, and offered, if it cant be answered, I am okay with it.

Defense counsel requested a sidebar conference, and stated, I dont think that we need to question her anymore. Well tell her we cant tell her and she can go back in and deliberate. With all due respect, I am not I just dont think asking her why it is relevant is something we should do at this stage. In contrast, the prosecutor was concerned that perhaps they are discussing things they should not be discussing in that jury room. And I think the court can inquire as to whether the factors outside of the evidence are coming in and that is being discussed. Defense counsel replied, I think thats beyond the courts duty. Whatever they are discussing to deliberate to make a decision is for them to discuss. The court felt obligated to further inquire, concluding that the question is so unusual that I suspect misconduct of some sort.

The court then informed Juror No. 8 that the court had to understand what this question is about so asked the juror whats happening? Juror No. 8 responded, It is something personally for me. It is an awful lot of question, but it is something that was after reading the testimony and everything, I just wanted to know. But if it cannot be answered, then I am okay with that. The court further pressed, and Juror No. 8 further demurred, stating that she could not answer without disclosing what was going on in the jury room, and saying that she would rather just move on. The trial court stated that it needed to know why the color of the golf bag was relevant to her, and if this means disclosing something else thats going on, then I have to know. Before Juror No. 8 could answer, defense counsel interrupted and asked to again approach sidebar to make a record.

Defense counsel again requested that the matter be dropped, saying, Shes clearly said that if the court cant answer it, she doesnt need the information. She can move on. I think if she is going to say anything thats going to divulge anything of the deliberation, that would be completely improper at this time. The prosecutor continued to suspect misconduct, and requested the trial court to continue its inquiry.

The trial court continued its inquiry and asked Juror No. 8 to tell us what this is about. Juror No. 8 responded, If I can withdraw the question, I will withdraw it. The trial court said she could not, and again asked the juror to explain. Juror No. 8 responded, I honestly feel that it is nowhere explaining it without disclosing whats going on. The court rejoined, Then you may have to disclose whats going on. I think theres something amiss, something wrong here, something improper thats happening. And I have to understand. Maybe I am wrong. Maybe I am entirely wrong. But I do have to make a decision. Juror No. 8 attempted to determine how to answer the courts question without disclosing deliberations. She ultimately concluded, I dont really honestly think I can without disclosing a verdict. The trial court asked, In your view, are you folks working toward a verdict one way or other? When Juror No. 8 answered in the affirmative, the court released her and directed her to continue deliberations.

A short time later, defense counsel sought to make a record. Defense counsel had been advised by a colleague that the colleagues understanding of the spectator outburst was that the spectator had yelled, Did you love him when you were breaking his window with his golf clubs.^[9] Given this information, defense counsel now believed that Juror No. 8s inquiry might be considering the spectator outburst which the jury had been admonished to disregard. Defense counsel conceded that she had refused to let [the trial court] inquire into the very same possible misconduct that she was alleging now, but since she had been advised of her colleagues understanding of the spectators outburst, she requested the court to conduct a limited inquiry to make certain the juror was not considering the content of the spectators outburst. Neither the prosecutor nor the trial court could determine the relevance of the color of the defendants golf bag, even if the juror were improperly considering the spectators outburst.

At this point, the jury signaled that it had reached a verdict. The court took the verdict. Defendant subsequently made no motion for new trial based on juror misconduct.

A jurors consideration of outside information constitutes misconduct. (People v. Harper (1986) 186 Cal.App.3d 1420, 1426.) [A]n inquiry sufficient to determine the facts is required whenever the court is put on notice that good cause to discharge a juror may exist. (People v. Burgener (1986) 41 Cal.3d 505, 519.) Failure to conduct a hearing sufficient to determine whether good cause to discharge the juror exists is an abuse of discretion subject to appellate review. (Id. at p. 520.) However, when the defendant prevents the inquiry from going forward, the defendant cannot subsequently challenge the verdict of that very jury on grounds that the courts failure to conduct an inquiry prejudiced his interests. (Id. at p. 521.) This is so because the trial court could have addressed and cured the problem at the time of trial. (People v. Holloway (2004) 33 Cal.4th 96, 124-126.)

To the extent defendant contends on appeal that the trial court erred in failing to further inquire of Juror No. 8 regarding the basis for her unusual question, the contention is considered forfeited. Defense counsel repeatedly argued against further inquiry, to the point of asking for a sidebar to press the objection immediately after the trial court had directed the juror to explain the reason for her question, even if it meant disclosing matters from deliberations. Both the trial court and the prosecutor felt further inquiry was necessary, but defense counsel forcefully argued against it. As such, defendant has forfeited any argument on appeal that the trial court erred by failing to further inquire of Juror No. 8, prior to the time he released her to continue deliberations at defendants request.^[10]

The only argument that was not forfeited was defense counsels subsequent reversal of position and request that the court conduct a limited inquiry to determine whether Juror No. 8s question was prompted by consideration of the spectators outburst. In other words, the only claim preserved for appeal is the assertion that Juror No. 8 may have violated the courts admonition and considered the spectators outburst. The only basis for this inference is that the juror asked an inexplicable question regarding the defendants golf clubs and the spectators outburst had mentioned golf clubs as well. However, this was not the only mention of golf clubs at trial; defendant testified the shooting occurred after he had returned home from playing golf. Moreover, the jurors own description of the reason for her question weighs against the inference that it was prompted by the spectators outburst. She explained that the inquiry was something personally for her that she wanted to know after reading the testimony and everything, shortly following a readback. On these facts, the idea that the juror improperly considered the spectators outburst is pure speculation. As such, the trial court did not err by failing to conduct the limited inquiry sought by the defendant.

4. Remand for Resentencing is Necessary

The trial court sentenced defendant to the upper term for voluntary manslaughter, based on its finding of victim vulnerability. The upper term on the firearm enhancement was imposed on the basis of defendants probationary status and unsatisfactory performance on probation. In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856], the United States Supreme Court . . . held that Californias determinate sentencing law . . . violates a defendants federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence. (People v. Black (2007) 41 Cal.4th 799, 805.) However, the requirement of a jury finding does not extent to a finding that a prior conviction occurred or other related issues that may be determined by examining the records of the prior convictions. (Id. at p. 819.) Moreover, as 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 [Cunningham], 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. (Id. at p. 812.)

It is clear that the trial courts reliance on victim vulnerability, in order to impose the upper term for voluntary manslaughter, does not satisfy the requirements of Cunningham.^[11] It is arguable, although not decisively established, that the two factors on which the trial court relied to impose the upper term on the firearm enhancement were sufficiently related to defendants prior criminal record to be considered outside the scope of those factors which must be found true beyond a reasonable doubt by a jury.^[12] The prosecution argues that since the trial court found to be true two factors related to recidivism, those two factors justify the imposition of two upper terms and that we can reassign one such factor in order to justify the imposition of the upper term on the voluntary manslaughter offense. (See People v. Velasquez (2007) 152 Cal.App.4th 1503, petn. for review filed August 14, 2007 [trial court gave no reasons for imposing the upper term, but reasons relied on for imposing consecutive sentences could be considered to justify the imposition of the upper term].)

Without passing on the merits of the prosecutions arguments, our review of the record has raised a more fundamental concern that is, the record is unclear as to whether defendant actually was on probation at the time of the offense. The only evidence of defendants probationary status is set forth in the probation report, which is itself ambiguous.^[13] The cover sheet of the probation report includes a check box by which it can be indicated if the defendant was on probation. That box is not checked. Where the probation report lists circumstances in aggravation, the probation officer has indicated none, although the fact that a defendant was on probation at the time of the offense is a circumstance in aggravation enumerated in the Rules of Court.^[14] (Cal. Rules of Court, rule 4.421(b)(4).) The only reference to defendant ever having been on probation in the probation report is set forth in the section indicating his prior criminal history. It indicates a June 12, 2001 arrest for hit‑and-run causing property damage (Veh. Code, 20002, subd. (a).) In connection with that arrest, the report indicates that, on May 16, 2002, defendant was convicted of driving on a suspended or revoked license (Veh. Code, 14601.1, subd. (a)). He was placed on two years summary probation with $300 fine. The report goes on to state, 9‑18‑02 Bench warrant issued. 7-7-04 Matter on Calendar for bench warrant hearing, defendant to serve ten days county jail in lieu of fine. Defendant admits violation of probation, probation revoked and reinstated.

The current offense was committed on July 3, 2004. Unless the issuance of the bench warrant extended defendants probation, there is no reason to believe defendants two years summary probation did not terminate on May 16, 2004, two years after his conviction. The issuance of the bench warrant did not extend the defendants probationary period; only an order revoking probation issued prior to the expiration of probation would have done so. (3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment,  578, pp. 770‑771.)) Thus, although defendant subsequently admitted a violation of probation, the probation report is, at best, ambiguous as to whether defendant was actually on probation at the time of the offense.^[15]

Given this ambiguity in the record, and the fact that defendants sentence could not possibly survive defendants Cunningham challenge without both aggravating factors of defendants probationary status and unsatisfactory performance on probation, we conclude the best course of action is to remand for resentencing. In response to Cunningham, the California Legislature amended the determinate sentencing law to eliminate the presumption in favor of the middle term and instead provide that conviction of an offense subjects to defendant to any of the three terms (lower, middle, and upper) without the necessity of additional findings. (Stats 2007, ch. 3.) In People v. Sandoval (2007) 41 Cal.4th 825, 845, the California Supreme Court concluded that it was unnecessary to determine whether the recently enacted legislation was intended to apply to resentencing hearings in cases where the original sentencing hearing predated the amendments. The Supreme Court recognized its responsibility to fashion a constitutional procedure for resentencing in cases in which Cunningham requires a reversal of an upper term sentence, and concluded that it is appropriate in such cases for resentencing to proceed under the procedure adopted independently by the Legislature. (Id. at pp. 845-846.) Therefore, on remand, the trial court may exercise its discretion to impose any of the three terms available for defendants offense and sentence enhancement.^[16] (Id. at p. 832.)

DISPOSITION

The sentence is reversed and the matter remanded to the superior court with directions to conduct a new sentencing hearing consistent with the views expressed in this opinion. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J.

ALDRICH, J.

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^[1] Except for our discussion of defendants sentence, the opinion we now file is substantially the same as our opinion of October 20, 2006.

^[2] On appeal, defendant states that [t]he first time [he] raised the rifle, he knew there was no round in the chamber. This is incorrect. Defendant clearly intended to fire at the car the first time he raised the rifle; it was only when the rifle failed to fire that he remembered there was no bullet in the chamber.

^[3] Indeed, his counsels opening statement to the jury did not seek an acquittal, but sought a verdict of voluntary manslaughter based on heat of passion.

^[4] Defendant does not contend there was error in the fact that the jury found true the allegation that he had used a firearm within the meaning of Penal Code section 12022.5, when the information had alleged firearm use within the meaning of Penal Code section 12022.53.  [A] valid accusatory pleading need not specify by number the statute under which the accused is being charged.  (People v. Shoaff (1993) 16 Cal.App.4th 1112, 1117.) As long as the pleading alleges each fact required for the imposition of an enhanced term, the failure to specify the enhancement statute does not preclude imposing the enhancement, as long as the defendant was not misled to his prejudice. (Id. at pp. 1117‑1118.)

^[5] Defendant argues that the trial court did not specifically find that his performance on probation had been unsatisfactory. After imposing sentence for voluntary manslaughter, the trial court addressed the enhancement and stated, This court finds a factor in aggravation that you were on probation at the time. And that you did unsatisfactorily on probation.

^[6] Indeed, defense counsel virtually conceded the point in argument to the jury stating, Going to implied malice, showing that the People[,] I believe[,] are trying to prove that shooting a gun at a car is in shows an indifference to human life. Disregard whats safe for [defendant] to be shooting at the car, implied malice. Okay. [] But when you look at heat of passion, if there is heat of passion, it negates malice.

^[7] In any event, it appears that the spectators statement was not prejudicial. Defense counsel had been concerned the jury might infer from it that defendant had performed previous violent acts. But, given the jurys verdict of voluntary manslaughter rather than murder, the jury clearly concluded defendants killing of his son was an isolated, provoked incident.

^[8] Defendant notes that the jury question form has #5, the forepersons seat number, written in the Signature of Foreperson box, from which defendant infers the entire jury contemplated the question. The inference does not follow. Juror No. 8 asked to present her question outside the presence of the rest of the jurors, indicating that it was a private matter. As to the form, Juror No. 8 explained, I wrote the question down because I wanted you to see the question before I came out. And I gave it to the Deputy. Although the jury question form has #5 written in the Signature of Foreperson box, we note that other questions submitted by the jury do not simply state #5, but instead include the forepersons jury identification number, followed by Juror #5.

^[9] This is not the language of the outburst as reported by the court reporter.

^[10] On appeal, defendant argues that Counsel had earlier requested a mistrial on the basis of the outburst, and based upon the discussions that transpired with Juror No. 8 and thereafter, any further request by counsel for a mistrial would have been futile. The argument is disingenuous, given that the trial court had intended to get to the bottom of Juror No. 8s question, and it was only defense counsels request that the line of inquiry not be pursued that resulted in the juror being returned to continue deliberations.

^[11] The prosecution concedes that it is unlikely this factor could independently stand without a factual determination by the jury.

^[12] The issue of precisely which recidivism-related factors need not be found true by the jury is pending before the California Supreme Court. (People v. Towne, review granted July 14, 2004, S125677.)

^[13] There is, for example, no copy of the minute order in the prior case in which probation was imposed.

^[14] Unsatisfactory prior performance on probation is also identified as an aggravating factor in the rules of court. (Cal. Rules of Court, rule 4.421(b)(5).)

^[15] We also have some concerns regarding the trial courts conclusion that defendants prior performance on probation was unsatisfactory. The following colloquy occurred:

The Court: Now, with respect to the gun allegation, theres a range of choices also. And this court finds that there is a factor in aggravation, that is you were on probation at the time. You knew that your conduct was under special scrutiny, and you ignored your court probationary obligation. And there was a warrant out for your arrest.

The Defendant: Your honor, I wasnt aware

The Court: This court finds a factor in aggravation that you were on probation at the time. And that you did unsatisfactorily on probation.

The Defendant: Your honor

The Court: This court chooses the high base term of ten years with respect to the gun allegation . . . .

It appears that defendant attempted to argue against the trial courts finding that defendant had performed unsatisfactorily on probation, but the trial court cut him off, found the factor to be true, and imposed the upper term. Assuming without deciding that unsatisfactory prior performance on probation is a recidivist factor on which the trial court may properly make a finding under Cunningham, the trial courts refusal to hear defendants argument as to why that factor might not be true is problematic.

^[16] As we remand for resentencing, we need not address defendants challenges that victim vulnerability is an inappropriate factor to consider in cases of heat-of-passion voluntary manslaughter, and that the trial court abused its discretion in imposing the upper term on the firearm enhancement.