The opinion of the court was delivered by: Butz ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Michael Caleb Cavalli pleaded no contest to voluntary manslaughter and admitted he personally used a firearm in the commission of the offense. (Pen. Code, §§ 192, subd. (a), 12022.5, subd. (a).)*fn1 He was sentenced to an aggregate term of 16 years in state prison. On appeal, defendant contends the trial court abused its discretion by imposing the upper term of 10 years on the firearm use enhancement. Finding this contention to be without merit, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Because this case comes to us after a negotiated plea, our statement of facts is derived from defendant's probation report.
In the morning of July 28, 2009, defendant was at his mother's house on Lucky John Road in Paradise. At 8:13 a.m., defendant's mother, Marilynn Hudson, received a phone call from her estranged husband and defendant's stepfather, Ronald Lee Hudson,*fn2 a 48-year-old African-American. Defendant's mother hung up the phone. Approximately 25 minutes later, Hudson approached the residence, knocked on the locked door, and peered through various windows. Defendant responded by securing his mother and younger brother in the bathroom. He then loaded between six and eight bullets into a .25-caliber pistol and cocked it. Defendant opened the door and immediately shot Hudson in the chest. Defendant admitted acquiring the gun and the ammunition the night before.
Hudson hunched over, clutched his abdomen, and walked away from the house. Defendant was seen pursuing Hudson toward an adjacent parking lot with the pistol pointed at an approximately 45-degree angle "down at the ground." At that point, however, defendant made eye contact with a witness and fled back toward his residence. Defendant ran in an eastward direction toward Paradise Intermediate School. As he passed a group of young people at a nearby soccer field, defendant said something like "'You guys are going to read about me in the newspaper tomorrow.'"
When the police officers responding to reports of a gunshot victim located Hudson, his face was covered in blood and vomit and he had a gunshot wound in his upper right chest. Hudson was in a "state of panic" and trying to stand while repeatedly complaining that he could not breathe. Hudson identified "Mike Cavalli" (defendant) as the person who shot him. Hudson was transported to a local hospital and died a short time later.
Officers searching defendant's bedroom found a large flag depicting an iron cross, a large flag depicting a swastika, a large rebel flag with other gang symbols, an unsheathed knife, prison-style shanks, and several letters from a prison inmate who was a known White supremacist.
Defendant turned himself in to the police later that day. He had the letter "W" tattooed on his left knee, which he told the officers meant "White power," although he subsequently insisted that he was not a racist and that his tattoo was actually an "M." On several occasions, it was reported that defendant referred to Hudson as a "nigger" and his mother as a "nigger lover."
Officers discovered the murder weapon in a portable toilet at the Paradise Cemetery. The gun was unloaded with no magazine and the ...