Filed 10/31/23 P. v. Orozco CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

SERGIO OROZCO,

Defendant and Appellant.

 D081156

 (Super. Ct. No. SCN387908)

APPEAL from a judgment of the Superior Court of San Diego County, 

Kelly C. Mok, Judge. Affirmed.

Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. 

Sevidal, Andrew S. Mestman, and Randall D. Einhorn, Deputy Attorneys 

General, for Plaintiff and Respondent.
2

A jury convicted Sergio Orozco of voluntary manslaughter (Pen. Code,1

§ 192). It also found true that Orozco personally used a deadly weapon (a 

knife) (§ 12022, subd. (b)(1)).2

After the jury was dismissed, the trial court granted the prosecution’s 

request to amend the information by adding aggravating sentencing factors. 

During the sentencing hearing, the trial court used one or two of those factors 

to sentence Orozco to prison for 11 years.

Orozco appeals, contending the trial court erred in failing to instruct 

the jury on (1) involuntary manslaughter as a lesser included offense of 

murder and (2) voluntary intoxication causing unconsciousness. 

Additionally, Orozco maintains the trial court erred by allowing the 

prosecutor to add aggravating factors to the information after the jury was 

discharged and then by denying Orozco a jury trial as to those factors. 

Finally, Orozco asserts the court abused its discretion in sentencing him to 

the upper term.

We conclude that Orozco’s arguments lack merit. As such, we affirm

the judgment.

FACTUAL BACKGROUND

Prosecution

In 2015, Orozco, his girlfriend Adriana C., and Adriana’s brother 

Victor C., lived together in an apartment in Lancaster, California. On one 

occasion, Adriana overheard Orozco angry during a telephone conversation 

with his mother. Adriana subsequently went outside to call Orozco’s mother 

to apologize for Orozco’s behavior. While Adriana was on the telephone with 

1 Statutory references are to the Penal Code unless otherwise specified.

2 The jury acquitted Orozco of murder (§ 187, subd. (a)).
3

Orozco’s mother, Orozco was outside pacing back and forth and angrily 

yelling. Orozco had a cut on his lip, a small bump or bruise by his eye, and he 

was bleeding. When Adriana went back inside, Victor told her that he hit 

Orozco in self-defense after Orozco came into his bedroom. Adriana told 

Orozco to leave and that she was breaking up with him. Orozco moved out 

for a few weeks, but then moved back in after the couple reconciled. Orozco

told Adriana he was sorry, and it would not happen again. Orozco wanted to 

apologize to Victor, but Victor was not willing to accept the apology. Victor 

moved out of the apartment.

In early 2018, the three decided to live together again. Thus, in June 

2018, all three lived at an apartment complex in Vista where Adriana was 

the onsite manager. They resided in the manager’s apartment.

On June 23, 2018, Victor went to a friend’s house in Oceanside. 

Another friend, who arrived later, estimated that he saw Victor drink four to 

five beers over the next two to three hours. When it came time to leave, 

Victor wanted to go to a bar or a marijuana dispensary, but his friend drove 

him back to the Vista apartment and dropped him off at about 10:00 or 11:00

p.m.

Earlier that evening, Orozco dropped off Adriana at the home of a 

friend of hers to attend a birthday party.

Sometime after midnight, surveillance video showed Orozco and Victor 

at a convenience store buying beer.

At around 3:00 a.m., a woman at the Vista apartment complex awoke 

to the sound of a man repeatedly yelling, “[L]et me in,” followed by, “I’m going 

to fucking kill you.” The woman looked out the window and saw the man 

banging on the screen door and then the window. The man was stumbling, 

pacing back and forth, and slurring his words. He appeared to be in his 
4

twenties, was 5’7” or 5’8” tall, had a skinny to medium build, maybe weighed 

150 pounds, had a “buzz” haircut, and was wearing long white socks, long 

baggy black shorts, and no shirt. At one point, the man said, “Fuck you, ese.” 

The woman then saw the apartment door open and heard another man say, 

“calm down.” She continued to hear arguing and possibly an altercation due 

to muffled sounds and grunting.

Another neighbor walked past the manager’s apartment at around 3:00

a.m. and noticed that the lights were still on. He did not hear any noise 

inside. As he was getting ready for bed, he heard Orozco yelling for help 

several times.3 The neighbor stepped out on his balcony and saw Orozco 

“bust[] open” the door and yell for help and ask for someone to call the police. 

Orozco said he was sorry, and yelled, “there is blood” while holding out and 

looking at his arms. He sounded scared and drunk. The neighbor did not call 

the police because he was unsure whether Orozco actually needed help or was 

just intoxicated. Orozco looked up at the neighbor and said, “[F]uck you 

then.”

A third neighbor and her family returned home at around 3:00 a.m. and 

saw a shirtless man with a shirt slung over his shoulder who was wearing 

long white socks and walking around. The neighbor and her family were 

sitting in their car talking for about 20 minutes when they saw a car 

resembling the apartment manager’s pull out of a parking spot, pause for a 

bit with the driver seeming to be staring at the neighbor, and then speed off.

Shortly thereafter, the neighbor saw the manager’s apartment door wide 

open and saw a person lying in the kitchen bleeding. The neighbor called the 

police.

3 The witness did not identify the person yelling for help as Orozco. 

However, the parties agree that it was him.
5

At about 3:50 a.m., Gilbert A. saw a car stopped at a green light and 

observed what looked to be a man (Orozco) throwing up outside the driver’s 

door. Gilbert called 911. The car suddenly sped off, driving erratically, and 

Gilbert followed. The car hit a fence and the airbags deployed. Orozco exited 

from the back passenger door, said, “it was all going to be alright,” and 

aggressively tried to shake Gilbert’s hand. Gilbert did not want Orozco to 

touch him, and told him to back up, sit down, and the police were on the way. 

Orozco said, “[F]uck you, ese,” and told Gilbert to stop following him or “I’m 

going to blast you.” Orozco grabbed a hoodie from the car and walked away.

At around 4:00 a.m., as Orozco was walking, Adriana called, hoping 

Orozco could pick her up from the party. Orozco sounded upset and paranoid 

and told Adriana that the cartel got her brother. He asked Adriana to meet 

him on a street near the apartment. She stayed on the telephone with Orozco 

while she was driving to meet him, and the last thing she heard before the 

call disconnected was the police telling Orozco to put his hands up.

When the police responded to the apartment, they found Victor, who 

was shirtless and wearing sagging pants with visible athletic shorts, dead.

He suffered five stab wounds, including a 3.75-inch-deep wound to his throat, 

4-inch and 6-inch-deep wounds to his back and chest, and the most severe 

being a 4-inch-deep wound to his neck that severed his left jugular vein.

There also were blunt force injuries to his back, arm, and inside his lower lip.

He had no injuries to his right knuckles. Orozco had injuries to his righthand knuckles.

Both men’s blood tested positive for alcohol. Extrapolating back to the 

estimated time of Victor’s death, a toxicologist opined Orozco likely had a 

blood alcohol level between .187 and .257. Victor’s blood alcohol levels were 
6

measured at .24. His toxicology report was also consistent with having very 

recently used cocaine and less recently having used marijuana.

In a recorded jail call, when asked by his cousin what happened, Orozco 

said, “I fucked up, (unintelligible) look at my charges,” and “fucked up shit 

happened (unintelligible).”

Defense

Orozco testified in his own defense. He met Victor in 2014 when he 

moved in with Adriana. Apparently, Victor was a private person who kept to 

himself; so, it took a while for Orozco to get to know him. Orozco did not 

dislike Victor.

Orozco testified that when Victor moved back in with him and Adriana 

in 2018 in Vista, they all got along. In fact, Orozco and Victor would walk the 

dog together, go out to eat, and play video games. Because Victor was 

Adriana’s brother, Orozco wanted the best for him and felt love toward him.

On June 23, 2018, after Orozco dropped off Adriana at her friend’s 

house, he stopped by a convenience store and bought a six-pack of “strong” 

beer. When he got home, he set up a video gaming computer and played 

video games. By the time Victor’s friend dropped Victor off back at the 

apartment, Orozco had consumed four beers and gave Victor the other two.

The two of them then separately played video games before going to a 

convenience store to buy another six-pack of strong beer. The surveillance 

video at the store showed Orozco smiling and patting Victor on the back.

After returning to the apartment, they drank beer and talked. Hours 

later, Victor asked for the car keys to go somewhere, but Orozco refused to 

give him the keys or a ride because they were both drunk. Victor became 

upset and walked out of the apartment. Orozco locked the door out of habit.

He then went to his room and played video games while listening to music. 
7

However, Orozco became “fed up” and laid down. He eventually went to the 

kitchen for another beer.

While in the kitchen, Orozco heard a loud pounding sound. He could 

not remember whether he locked the door, and he grabbed a nearby kitchen 

knife and ran toward the door. Orozco explained that he did not know who 

would be “knocking on the door like that. So out of instinct . . . [he] just 

grabbed the knife and ran to the door . . . for precaution.” When he got to the 

door, he heard Victor shouting, “Open the fucking door. I’m going to kill you.”

Orozco told him to calm down and that he was opening the door. Orozco 

stated that he had never heard Victor “this mad before.” He intended to “try 

to calm him down and try to open the door.” Orozco still had the knife at this 

point, but he admitted that he was not thinking about whether Victor was 

armed. Nonetheless, he acknowledged that he would not have opened the 

door if he thought Victor had a weapon.

Orozco testified that when he opened the door, Victor “storm[ed] in” 

and “rush[ed]” him, causing him to fall backwards. Orozco described Victor’s 

movement as “a dive, like him kind of just throwing himself right at me.” 

After Victor realized Orozco had a knife, he started grabbing for it.4 As 

Orozco explained, “[T]hat’s when it all just changed. It became really, really, 

fast, like, it just all happened. Like, blood started being all over us and stuff. 

And I was just really like really freaked out, you know. We both were.”

During his direct examination, Orozco and his attorney engaged in the 

following discussion regarding whether Orozco remembered stabbing Victor 

with the knife:

4 Orozco testified that he did not tell Victor that he had a knife. Nor did 

he show him the knife. Also, he later testified that he did not know if Victor 

“even really paid attention that there was a knife in my hands.”
8

“Q Do you remember using the knife on Victor?

“A Yeah, I mean, after that he kept going for the knife and 

kept and kept. And then I had a grip on it and then he 

tried to get it from me and we were just struggling right 

there. And then he was on top of me over by the kitchen. 

And then I—the knife must of like made all the blood, you 

know.

“Q Do you remember hitting him with the knife at the 

door?

“A I’m not sure exactly, like, right at the door. But, I 

mean, when he came in, he lunged at me, I don’t know 

exactly how it went. It must of cut him because there was 

blood. I mean, that’s when there started being blood and 

then when went to the floor it became more blood.”

Subsequently, defense counsel asked Orozco if he remembered striking 

Victor with the knife when they were on the floor. Orozco responded, “I 

mean, like, not like briefly aware and stuff like that but I mean I did feel it 

after.”

Orozco testified that as they struggled on the ground, they rolled over 

each other twice and ended up by the kitchen. They were both “fighting for 

the knife.” Orozco stated that they “rolled one more time,” Victor was on top 

of him, they “were just going for the knife, and then the knife was used, and 

then that’s when all the blood happened.” Orozco saw large amounts of blood

as they both kept struggling for the knife.5

Victor remained on top of Orozco and then he stopped moving.

5 During cross-examination, the prosecutor asked Orozco at what point 

he stabbed Victor in the face. Orozco responded, “At the point where he was 

on top of me over there by the kitchen we rolled over and I just had swung 

the knife.”
9

Orozco stated that he was worried that Victor would get the knife and 

use it on him. He explained that when Victor tried to grab the knife, the 

altercation “became very serious.” He also admitted that the fight “would 

have been different” “if we wouldn’t of had the knife right there.”6

Orozco said he never intended to kill Victor.7 After Victor stopped 

moving, Orozco still had the knife in his hand. He stood up, threw the knife 

on the floor, put on a sweater, and ran outside screaming for help. He did not 

see the neighbor in the nearby apartment.

Orozco remembered leaving in the car and driving really fast, intending 

to go to his mother’s house, but he did not remember stopping at the green 

light or vomiting at the light. He remembered crashing into a curb and fence 

but did not recall his interaction with Gilbert.

Orozco said he lied to Adriana because he did not know what else to tell 

her and could not tell her what happened. He continued to speak with 

Adriana for over a year and a half after Victor’s death. During that time, he 

continued to deny killing Victor. He told his cousin in a phone call the day 

after his arrest that he “fucked up” because of everything that happened. He 

left Victor dead and bleeding on the floor and felt they should not have been 

drinking that night.

6 At one point, when Orozco no longer had possession of the knife, he 

repeatedly punched Victor in the face and regained possession of the knife. 

At another point in the altercation, Victor almost got ahold of the knife, but, 

Orozco assumed Victor cut his hand while grabbing the blade (although 

Orozco did not see it happen). 

7 After being shown photographs of the stab wounds, Orozco stated that 

he was the only person in the room with Victor; thus, he must have caused 

whatever injuries occurred.
10

DISCUSSION

I

JURY INSTRUCTIONS

A. Orozco’s Contentions

Orozco argues the court committed reversible error by failing to 

instruct the jury on (1) involuntary manslaughter as a lesser included offense 

of murder and (2) voluntary intoxication causing unconsciousness. We 

disagree with both of these arguments.

B. Background

During the conference on jury instructions, the trial court indicated 

that it was planning to instruct the jury on first degree murder, second 

degree murder, and voluntary manslaughter. It asked counsel whether they 

agreed to those instructions. Orozco’s counsel argued to exclude an 

instruction on first degree murder, contending there was no evidence 

presented at trial to support such a charge. The prosecutor responded that 

she was taking the position that it was Orozco who the neighbors heard 

outside the apartment, banging on the door, demanding to be let in, and 

threatening to kill the apartment’s occupant. Based on the prosecution’s 

theory of the case, the court disagreed with defense counsel and indicated 

that it would instruct the jury as to first degree murder as well as second 

degree murder and voluntary manslaughter.

Relating to voluntary manslaughter, Orozco’s counsel maintained, and 

the trial court agreed, that the jury should be instructed under CALCRIM 

No. 570 (Voluntary Manslaughter: Heat of Passion) and CALCRIM No. 571 

(Voluntary Manslaughter: Imperfect Self-Defense or Imperfect Defense of 

Another). Defense counsel did not request an involuntary manslaughter

instruction.
11

Later during the hearing on jury instructions, the trial court stated 

that it intended to provide CALCRIM No. 625 (Voluntary Intoxication: 

Effects on Homicide Crimes) but not CALCRIM No. 626 (Voluntary 

Intoxication Causing Unconsciousness: Effects on Homicide Crimes). Defense 

counsel stated that he did not believe CALCRIM No. 626 “applie[d] to this 

specific incident but I could be wrong.” After reviewing the instruction, 

counsel then stated, “I think that it only applies to involuntary 

manslaughter, so submitted.” The court then stated that it would not 

instruct the jury under CALCRIM No. 626, “stipulated by each side.”

Thus, among other instructions, the court provided the jury with 

instructions on murder (CALCRIM Nos. 520, 521, 522), heat of passion 

voluntary manslaughter (CALCRIM No. 570), and imperfect self-defense 

voluntary manslaughter (CALCRIM No. 571). The court also gave various 

self-defense instructions (CALCRIM Nos. 505, 3471, 3472, 3472). No 

involuntary manslaughter instruction was given.

During closing argument, the prosecutor maintained that it was Orozco 

who was on the other side of the apartment door before the altercation; 

therefore, he was the individual who said, “Let me in, I’m going to kill you.” 

Based on this theory of the case, the prosecutor told the jury that first degree 

murder was the appropriate verdict.

In contrast, defense counsel told the jury “[t]his is a self-defense case” 

and “the only real question . . . is, is it manslaughter or self-defense.” To this 

end, counsel admitted that when Victor entered the apartment, Orozco was 

holding the knife. And when “Victor c[ame] at him more near the center of 

his chest . . . that knife str[uck] him in the head.” Further, defense counsel 

asserted that Orozco’s testimony supported the theory that Orozco 

“reasonably believed that the immediate use of deadly force was necessary to 
12

defend against that danger,” the “danger of being killed or suffering 

significant bodily injury.” Additionally, counsel emphasized that the 

prosecutor had to prove that Victor’s death was not the result of a sudden 

quarrel or committed in the heat of passion, otherwise “a murder is reduced 

to voluntary manslaughter.” Indeed, defense counsel seemed to concede that 

Orozco had used deadly force, and the jury needed to determine whether the 

use of that force was reasonable. In short, Orozco’s counsel insisted this was 

not a murder case. Rather, the evidence presented a choice between 

voluntary manslaughter or a not guilty verdict. 

C. Involuntary Manslaughter Jury Instruction

Although Orozco’s trial counsel did not ask for a jury instruction on 

involuntary manslaughter, Orozco argues that the trial court committed 

reversible error by failing to give such an instruction sua sponte. Specifically, 

Orozco contends there was substantial evidence presented at trial raising 

“doubt whether . . . Orozco possessed the requisite degree of malice.” To this 

end, Orozco emphasizes that he testified that he did not intend to kill Victor.

And he did not remember intentionally stabbing Victor with the knife. 

The People contend there was insufficient evidence to trigger the sua 

sponte instruction. They insist, “at the very least, the evidence showed 

[Orozco] acted with conscious disregard for life when he stabbed Victor five 

times with a six-inch blade knife causing deep wounds to Victor’s throat, 

neck, back, and chest, including severing this jugular vein.” The People have 

the better argument.

When there is substantial evidence showing a defendant committed a 

lesser included offense, the trial court has a duty to instruct the jury on it. 

(People v. Cook (2006) 39 Cal.4th 566, 596 (Cook).) “The court must, on its 

own initiative, instruct the jury on lesser included offenses when there is 
13

substantial evidence raising a question as to whether all the elements of a 

charged offense are present [citations], and when there is substantial 

evidence that the defendant committed the lesser included offense, which, if 

accepted by the trier of fact, would exculpate the defendant from guilt of the 

greater offense.” (Ibid.) We review de novo the trial court’s failure to instruct 

on a lesser included offense, considering the evidence in the light most 

favorable to the defendant. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 

1137.)

“Murder is the unlawful killing of a human being . . . with malice 

aforethought.” (§ 187, subd. (a).) “Second degree murder is the unlawful 

killing of a human being with malice aforethought but without the additional 

elements, such as willfulness, premeditation, and deliberation, that would 

support a conviction of first degree murder. [Citations.]” (People v. Knoller

(2007) 41 Cal.4th 139, 151.) “[M]alice may be express or implied. [¶] . . . [It] 

is express when there is manifested a deliberate intention to unlawfully take 

away the life of a fellow creature.” (§ 188, subd. (a).) It is “implied when the 

killing is proximately caused by ‘ “an 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.] In short, implied malice requires a 

defendant’s awareness of engaging in conduct that endangers the life of 

another—no more, and no less.” (Knoller, at p. 143.) Implied malice has

“ ‘both a physical and a mental component. The physical component is 

satisfied by the performance of “an act, the natural consequences of which are 

dangerous to life.” [Citation.] The mental component is the requirement that 

the defendant “knows that his conduct endangers the life of another 
14

and . . . acts with a conscious disregard for life.” ’ ” (People v. Chun (2009) 45 

Cal.4th 1172, 1181.)

Voluntary manslaughter and involuntary manslaughter are both lesser 

included offenses of murder. (People v. Thomas (2012) 53 Cal.4th 771, 813.) 

“The lesser included offense of manslaughter does not include the element of 

malice, which distinguishes it from the greater offense of murder. [Citation.]” 

(Cook, supra, 39 Cal.4th at p. 596.)

“When a homicide, committed with malice, is accomplished in the heat 

of passion or under the good faith but unreasonable belief that deadly force is 

required to defend oneself from imminent harm, the malice element is 

‘negated’ or . . . ‘mitigated’; and the resulting crime is voluntary 

manslaughter, a lesser included offense of murder. [Citations.]” (People v. 

Brothers (2015) 236 Cal.App.4th 24, 30 (Brothers).)

In contrast to murder and voluntary manslaughter, involuntary 

manslaughter is an unlawful killing of a human being without malice or 

mitigated malice. (§ 192, subd. (b).) “One commits involuntary manslaughter 

either by committing ‘an unlawful act, not amounting to [a] felony’ or by 

committing ‘a lawful act which might produce death, in an unlawful manner, 

or without due caution and circumspection.’ (§ 192, subd. (b).)” (Cook, supra, 

39 Cal.4th at p. 596.)

Involuntary manslaughter also may be based on an unlawful killing in 

the course of an inherently dangerous assaultive felony without malice (i.e., 

without the intent to kill or without conscious disregard for life). (Brothers, 

supra, 236 Cal.App.4th at pp. 33–34; see People v. Bryant (2013) 56 Cal.4th 

959, 970 [“voluntary manslaughter requires either an intent to kill or a 

conscious disregard for life”].)
15

“ ‘[T]he existence of “any evidence, no matter how weak” will not justify 

instructions on a lesser included offense, but such instructions are required 

whenever evidence that the defendant is guilty only of the lesser offense is 

“substantial enough to merit consideration” by the jury. [Citations.] 

“Substantial evidence” in this context is “ ‘evidence from which a jury 

composed of reasonable [persons] could . . . conclude[ ]’ ” that the lesser 

offense, but not the greater, was committed.’ ” (People v. Moye (2009) 47 

Cal.4th 537, 553.)

We find no error in the trial court’s decision not to instruct the jury on 

involuntary manslaughter. Even viewing the evidence in the light most 

favorable to Orozco, there was insufficient evidence for the instruction 

because a reasonable juror could not have entertained a reasonable doubt 

that defendant acted in conscious disregard of the risk his conduct posed to 

Victor’s life. (See Brothers, supra, 236 Cal.App.4th at p. 34 [no substantial 

evidence of absence of malice warranting an involuntary manslaughter 

instruction, because even crediting defendant’s testimony that she did not 

intend to kill the victim, there was not “evidence from which a reasonable 

juror could entertain a reasonable doubt that [defendant] had acted in 

conscious disregard of the risk her conduct posed to [the victim’s] life”].)

The evidence presented by Orozco at trial showed that he engaged in 

inherently dangerous assaultive felony conduct (Brothers, supra, 236 

Cal.App.4th at pp. 34–35), namely, he armed himself with a knife and 

stabbed Victor five times, including in his throat, neck, and back. Although 

the evidence presented was less than clear regarding what Orozco could 

remember about the stabbing, it was undisputed that Victor never possessed 

the knife, and Orozco admitted to using the knife and swinging it. Further, 

the jury found true the allegation that Orozco personally used a knife.
16

And though Orozco contends a reasonable jury could have concluded 

that his conduct lacked malice, he points to nothing in the trial record 

indicating he lacked a subjective awareness of the danger his conduct posed 

to human life. In fact, Orozco tacitly acknowledged that his altercation with 

Victor would have been different had Orozco not wielded a knife. In other 

words, Orozco admitted that the knife greatly escalated the danger to both he 

and Victor during their altercation. Moreover, this is not a case where 

defense counsel argued that Orozco accidentally stabbed Victor. To the 

contrary, counsel argued that Orozco used deadly force, and it was up to the 

jury to decide whether Orozco’s response to Victor was reasonable (resulting 

in a not guilty verdict) or unreasonable (pointing to a voluntary 

manslaughter verdict). Accordingly, the trial court did not err. (Brothers, 

supra, 236 Cal.App.4th at p. 35 [“when . . . the defendant indisputably has 

deliberately engaged in a type of aggravated assault the natural 

consequences of which are dangerous to human life, thus satisfying the 

objective component of implied malice as a matter of law, and no material 

issue is presented as to whether the defendant subjectively appreciated the 

danger to human life his or her conduct posed, there is no sua sponte duty to 

instruct on involuntary manslaughter”].)8

8 In his reply brief, for the first time, Orozco argues “the evidence 

alternatively supports a finding that Mr. Orozco brandished the knife upon 

seeing [Victor][,] a misdemeanor, which then led to [Victor’s] death, even if 

those stab wounds occurred unintentionally.” When an appellant fails to 

raise an issue in the opening brief, raising it for the first time in a reply brief 

or at oral argument, we generally decline to address the issue or address it in 

a summary manner. (See People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.) 

Thus, we find this issue forfeited. Further, even if we addressed this claim on 

the merits, it would fail. Brandishing a weapon may be committed by 

drawing or exhibiting a weapon in a rude, angry, or threatening manner. 

(§ 417, subd. (a)(1); e.g., People v. Sanders (1995) 11 Cal.4th 475, 542.) There 
17

D. CALCRIM No. 626

Unconsciousness caused by voluntary intoxication is not a complete 

defense to a criminal charge, but it may reduce some homicides to 

involuntary manslaughter. (People v. Ochoa (1998) 19 Cal.4th 353, 423; 

CALCRIM No. 626.) Here, Orozco argues that the trial court erred by failing 

to instruct, sua sponte, under CALCRIM No. 626.

CALCRIM No. 626 provides, in relevant part: “Voluntary intoxication 

may cause a person to be unconscious of his or her actions. A very 

intoxicated person may still be capable of physical movement but may not be 

aware of his or her actions or the nature of those actions. [¶] . . . [¶] When a 

person voluntarily causes his or her own intoxication to the point of 

unconsciousness, the person assumes the risk that while unconscious he or 

she will commit acts inherently dangerous to human life. If someone dies as 

a result of the actions of a person who was unconscious due to voluntary 

intoxication, then the killing is involuntary manslaughter. . . .”

A trial court must instruct regarding involuntary manslaughter based 

upon unconsciousness whenever there is sufficient evidence that the 

defendant was unconscious due to involuntary intoxication. (People v.

Halvorsen (2007) 42 Cal.4th 379, 418 (Halvorsen); People v. Turk (2008) 164 

Cal.App.4th 1361, 1371–1372 (Turk).) “Due process requires that the jury be 

instructed on a lesser included offense only when the evidence warrants such 

an instruction.” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145.) 

is no evidence in the record that Orozco brandished the knife. Indeed, he 

testified that he did not show Victor the knife before he opened the door, and 

he did not claim that Victor saw the knife before Victor dove at him. 

Alternatively stated, there is no evidence in the record supporting Orozco’s 

contention that he brandished the knife.
18

In the instant matter, the evidence was insufficient to support 

instruction with CALCRIM No. 626. No expert or other witness testified that 

Orozco was so “ ‘grossly intoxicated’ ” as to be unconscious when he 

committed the killing. (Turk, supra, 164 Cal.App.4th at p. 1379.) Evidence 

that Orozco was intoxicated before the killing (he had drunk multiple “strong 

beers” and had a blood alcohol level of two to three times the legal limit) and 

that he could not remember stabbing Victor was insufficient, by itself, to 

warrant an unconsciousness instruction. (See Halvorsen, supra, 42 Cal.4th 

at p. 418 [expert testimony that the defendant’s blood-alcohol content might 

have approached 0.20 at the time of the shootings and that defendant 

“habitually drank to excess with resultant memory losses” did not constitute 

substantial evidence warranting an involuntary manslaughter instruction 

premised on unconsciousness]; People v. Rogers (2006) 39 Cal.4th 826, 888

(Rogers) [“Defendant’s professed inability to recall the event, without more, 

was insufficient to warrant an unconsciousness instruction”].) 

Moreover, Orozco remembered several events on the evening of the 

stabbing. He testified that he drove to a convenience store with Victor and 

bought a six pack of beer (he even recalled the specific type of beer). Orozco

said he was okay to drive because, while he was “more than buzzed,” he was 

not “drunk.” Hours later, after he and Victor had been drinking beer, Orozco

made the conscious decision to refuse to give Victor the car keys or a ride 

because they had been drinking. Orozco testified that when Victor returned 

to the apartment after having previously left, he (Orozco) grabbed a knife 

when her heard a loud pounding at the door. He testified that Victor was 

yelling and threatening him, and in return, he told Victor to calm down. He 

explained how the two of them then began a struggle and described the 

struggle. After Orozco stabbed Victor to death, he retrieved a sweater, put it 
19

on, ran outside, and asked for help. When a nearby neighbor apparently did 

not call for help, Orozco looked up at the neighbor and said, “[F]uck you 

then.” Orozco then walked down the stairs to the apartment parking garage, 

pulled Adriana’s vehicle out of the parking spot, waited for the garage gate to 

open, and then drove out of the complex. He drove off quickly, putting the car 

into sport mode so he could drive faster, intending to go to his mother’s house 

to seek help. He remembered crashing into a curb and fence. When exiting 

the car thereafter, he took his cell phone and charger from the car. When 

Adrianna called him shortly thereafter, Orozco told her the cartel killed

Victor, and he asked her to meet him near the apartment. Despite recalling 

these many events, he maintains that he cannot recall intentionally stabbing 

Victor with the knife, and thus, CALCRIM No. 626 was warranted. Yet, 

simply forgetting the actual crime in light of everything else he did remember 

is not sufficient to warrant an instruction regarding unconscious due to 

involuntary intoxication. (See Rogers, supra, 39 Cal.4th at p. 888.)

In addition, at trial, Orozco’s theory of the case was that he stabbed 

Victor in self-defense or as the result of a sudden quarrel. His attorney did 

not argue that Orozco was too intoxicated to intentionally kill Victor or that 

he was unconscious when he did so. Put differently, this was a self-defense 

case (either reasonable or imperfect). It was not a case where the evidence 

suggested or the defense counsel argued that Orozco was unconscious by way 

of voluntary intoxication when he killed Victor.

Against this backdrop, the evidence does not permit a reasonable 

inference that Orozco’s voluntary intoxication rendered him unconscious, i.e., 

where he physically acted but was not conscious of acting. (See Halvorsen,

supra, 42 Cal.4th at p. 417; People v. Carlson (2011) 200 Cal.App.4th 695, 

704.)
20

II

SENTENCING ISSUES

A. Orozco’s Contentions

Orozco argues the trial court violated his right to due process and trial 

by jury by allowing the prosecutor to amend the information to add 

aggravating factors after the jury was discharged. We are not persuaded by 

this argument because, even if we assume that Orozco was entitled to a jury 

trial as to certain aggravating factors, other aggravating factors listed in the 

amended information were properly before the trial court. As such, any error 

was harmless. 

Orozco also contends the court abused its discretion by not properly 

considering mitigating factors. We disagree. 

B. Background

On August 10, 2022, the jury convicted Orozco of voluntary 

manslaughter and found true that he personally used a deadly weapon. That 

same day, the jury was discharged.

On September 29, 2022, the prosecution filed a “Motion on Factors in 

Aggravation Pursuant to Penal Code Section 1170 and Statement in 

Aggravation,” attaching certified records of Orozco’s prior convictions. In the 

motion, the prosecution sought leave to amend the information to allege and 

prove various aggravating factors, under the California Rules of Court,9 to 

9 Future references to rule or rules are to the California Rules of Court.
21

support an upper term sentence.10 The prosecution noted that the trial court 

may consider the records of Orozco’s prior convictions in aggravation without 

submitting those to the jury. 

The defense filed an opposition to the prosecution’s motion. In its 

opposition, the defense argued that the only aggravating factor the court 

could consider without a jury determination was his prior convictions 

evidenced by certified records. The defense argued the court was not 

permitted to make factual findings regarding any other factors, such as 

“increasing seriousness,” unsatisfactory performance on probation, or the use 

of a weapon.

At the sentencing hearing on October 21, 2022, the trial court found 

that Orozco had suffered a juvenile true finding for a second-degree felony on 

January 22, 2009 and, on June 24, 2009, was found in violation of the terms 

of his juvenile probation. The court found Orozco suffered two further 

misdemeanor true findings as a juvenile, also both in 2009. The court also 

determined that, in April 2010, Orozco was convicted of a non-strike felony 

and that, in April 2012, probation was revoked and reinstated. Both parties 

stipulated that Orozco’s adult conviction was later reduced to a misdemeanor 

and expunged.

The trial court thus found Orozco had sustained prior criminal acts 

within the meaning of rule 4.408(a). Over defense counsel’s argument that

the expungement was evidence Orozco had successfully completed his 

10 The aggravated factors included the allegations that: (1) Orozco’s prior 

convictions as an adult and sustained petitions in juvenile delinquency 

proceedings were numerous or of increasing seriousness (rule 4.421(b)(2)); 

(2) Orozco suffered prior convictions (rule 4.408; People v. Berry (1981) 117 

Cal.App.3d 184, 191); (3) Orozco’s performance on probation or parole was 

unsatisfactory (rule 4.421(b)(5); and (4) Orozco was armed with or used a 

weapon at the time of the commission of the crime (rule 4.421(a)(2)).
22

probation, the trial court found true the allegation that Orozco’s past 

performance on probation was unsatisfactory. (See rule 4.421(b)(5).)

The trial court then, initially, found the record did not show Orozco’s 

priors were of increasing seriousness. After the prosecutor highlighted the 

“or” language in the relevant rule (rule 4.421(b)(2)), the trial court found true 

the allegation that Orozco’s priors were numerous.

Lastly, the trial court concluded the jury had found true the allegation 

Orozco had personally used a deadly weapon, so as to qualify for an 

additional aggravating factor under rule 4.421(a)(2). Orozco’s counsel 

objected to the weapons finding being considered as an aggravating factor 

because it was not pled and proven as such.

Regarding mitigating factors, defense counsel argued that the provided 

child welfare records evidencing the significant trauma Orozco suffered as a 

child, the number of years that had passed since Orozco’s past conviction, and 

the fact that he was a contributing member of society all justified the low 

term or, at a minimum, weighed against imposition of the upper term. In 

response, the prosecution urged that, even if there was an issue with the 

aggravating factors not having been proven true by a jury, the aggravating 

factors weighed against imposition of the low term.

After detailing the trauma Orozco had suffered as a child, the trial 

court held it could not “see the connection” to the abuse suffered at seven or

eight years old at the hands of his family members. To the extent childhood

trauma was a contributing factor, the trial court found the low term still was 

not appropriate because the “sheer violence of the incident outweigh[ed] the 

mitigating factor of the childhood trauma.”

In consideration of the prior record and the finding that Orozco “was 

not successful on probation,” the trial court found that the upper term was 
23

warranted. The trial court noted the jury’s finding on the weapons allegation 

and then additionally cited to the “numerous stab wounds,” and “great 

violence” as aggravating factors. Following repeated objections by defense 

counsel, the trial court stated: “[t]he only aggravating factor that this Court

is using is the record of the prior conviction, as well as the personal use of a 

deadly weapon.” 

Defense counsel then requested the court reconsider, noting that the

court needed to balance the aggravating factors against the additional 

mitigating factors. Apart from the childhood trauma, Orozco’s counsel

emphasized the unusual circumstances of the offense, as corroborated by the 

jury’s acquittals on the greater offense, the intoxication of both parties at the 

time of the offense, and the relatively minor nature of Orozco’s criminal

record.

The trial court explained it was not finding there were unusual

circumstances and also was not finding Orozco’s intoxication to be a 

mitigating factor. The trial court then struck punishment under 

section 12022, subdivision (b)(1), because it was using the weapons factor as 

justification for imposing the upper term of 11 years.

Orozco’s counsel then stated that he wanted to make sure “the record 

[wa]s super clear for appellate purposes”; thus, he asked the court if its 

finding that the upper term was appropriate was based on rules 4.421(b)(2), 

4.421(b)(5), 4.408(a), and 4.421(a)(2). The court responded:

“Correct. I did take into account each one of those prior 

conviction findings, including the fact that he sustained 

prior juvenile true findings and criminal conviction under 

[rule] 4.408(a), as well as . . . . his performance on probation 

on the felony case, which was later reduced and expunged, 
24

that he did have a revocation. And so I do find that, that 

was unsatisfactory.

“I didn’t get any information that he did perform probation 

satisfactory. Other than I understand your argument, 

[defense counsel], that circumstantially because it was 

reduced and expunged, your argument that it was a 

satisfactory completion of probation, I don’t find that it was 

satisfactory completion of probation.

“And then under [rule] 4.4421(b)(2) that his prior true 

findings and convictions were numerous and those are the 

prior convictions, aggravating factors that this Court did 

consider. And then the Court also considered the personal 

use of a weapon that was found true by a—” 

Defense counsel interjected that it was objecting to the court 

considering the various aggravating factors because “any aggravating factor 

beyond the record certified prior conviction . . . cannot be considered unless it 

is found true by the jury. It’s a very clear code section. [¶] And I’m 

making—the Court has made clear it decided to make its own factual 

findings that were not proven by the jury, and the defense objects to that 

based on notice and the requirements of the law.”

The court then noted that Orozco had the opportunity to present 

evidence and argument to the court regarding the aggravating factors. 

Defense counsel insisted Orozco was entitled to a jury trial on most of the 

aggravating factors, which he was denied. The court countered that it found 

“that the aggravating factors of the prior conviction is in itself sufficient to 

justify the upper term in this case.”

C. Analysis

Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) amended 

section 1170, subdivision (b) by restricting a trial court’s discretion to impose 

an upper-term sentence. (Stats. 2021, ch. 731, § 1.3.) As relevant here, 
25

effective January 1, 2022, “[t]he court may impose a sentence exceeding the 

middle term only when there are circumstances in aggravation of the crime 

that justify the imposition of a term of imprisonment exceeding the middle 

term, and the facts underlying those circumstances have been stipulated to 

by the defendant, or have been found true beyond a reasonable doubt at trial 

by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(2); People v. 

Flores (2022) 73 Cal.App.5th 1032, 1038.)

In addition, the parties agree that Assembly Bill No. 124 (2021-2022 

Reg. Sess.) (Stats. 2021, ch. 695, § 5.1) (Assembly Bill 124), also effective 

January 1, 2022, amended section 1170 by adding paragraph (6) to 

subdivision (b), as follows: “Notwithstanding paragraph (1), and unless the 

court finds that the aggravating circumstances outweigh the mitigating 

circumstances that imposition of the lower term would be contrary to the 

interests of justice, the court shall order imposition of the lower term if any of 

the following was a contributing factor in the commission of the offense: [¶] 

(A) The person has experienced psychological, physical, or childhood trauma, 

including, but not limited to, abuse, neglect, exploitation, or sexual violence. 

[¶] (B) The person is a youth, or was a youth as defined under subdivision (b) 

of Section 1016.7 at the time of the commission of the offense. [¶] (C) Prior to 

the instant offense, or at the time of the commission of the offense, the person 

is or was a victim of intimate partner violence or human trafficking.” (§ 1170,

subd. (b)(6).)11 Section 1016.7, subdivision (b), defines a “ ‘youth’ ” as “any 

person under 26 years of age on the date the offense was committed.” 

(§ 1016.7, subd. (b).)

11 Technically, Senate Bill 567 added subdivision (b)(6) to section 1170. 

(See People v. Jones (2022) 79 Cal.App.5th 37, 44, fn. 11.)
26

Senate Bill 567 and Assembly Bill 124 were effective at the time Orozco 

was sentenced. Orozco claims that the trial court violated both provisions 

during sentencing. Specifically, he argues that he was entitled to a jury trial 

as to certain aggravating factors on which the trial court relied to select the 

upper term for his sentence. He also maintains that the court abused its 

discretion in considering the improper aggravating factors and failing to 

sufficiently weigh the mitigating factors in sentencing him.

Generally, we review a trial court’s sentencing decisions for abuse of 

discretion, evaluating whether the court exercised its discretion “in a manner 

that is not arbitrary and capricious, that is consistent with the letter and 

spirit of the law, and that is based upon an ‘individualized consideration of

the offense, the offender, and the public interest.’ ” (People v. Sandoval

(2007) 41 Cal.4th 825, 847 (Sandoval).)

As a threshold matter, we note that the amendment of the information 

in this case was somewhat atypical. Below, the prosecution moved to amend 

the information to include aggravating factors after the jury returned its 

verdict and was discharged but before sentencing. Yet, section 1009 allows a 

court to permit an amendment to an information “at any stage of the 

proceedings.” (§ 1009; see People v. Valladoli (1996) 13 Cal.4th 590, 594; 

People v. Rogers (2016) 245 Cal.App.4th 1353, 1362, fn. 7.) And Orozco does 

not argue here that the court abused its discretion simply by allowing the 

indictment to be amended. Rather, the issue before us involves what needed 

to occur after the information was amended, namely whether the aggravating 

factors had to have been found true beyond a reasonable doubt by a jury.

As discussed ante, the trial court allowed the prosecution to amend the 

information to include the following aggravating factors: (1) Orozco suffered 

prior convictions and sustained petitions in juvenile delinquency proceedings; 
27

(2) Orozco’s prior convictions and sustained petitions in juvenile delinquency 

proceedings were numerous or of increasing seriousness; (3) Orozco’s 

performance on probation was unsatisfactory; and (4) Orozco was armed with 

or used a weapon during the commission of the crime. Here, Orozco argues 

that his Sixth Amendment rights were violated because he was not provided 

with a jury trial as to the second and third factors above. 

In response, the People urge us to follow People v. Flowers (2022) 81 

Cal.App.5th 680, review granted October 12, 2022, S276237. There, the court 

summarily concluded that prior performance on probation and prior prison 

terms were properly established by certified records and thus appropriately 

considered by the trial court under section 1170, subdivision (b)(3). (Flowers, 

at p. 685.)

Orozco, in turn, argues that Flowers is not instructive. To this end, he 

points out that in Flowers, unlike here, the defendant was sentenced before 

Senate Bill 567 was effective. Moreover, Orozco emphasizes that the 

defendant in Flowers did not claim his right to a jury was violated. We also 

note that at least one other court questioned the Flowers court’s analysis. 

(See People v. Falcon (2023) 92 Cal.App.5th 911, 953–954, review granted 

Sept. 13, 2023, S281242.)

However, we need not resolve this dispute. Because, even if we assume 

that the trial court erred in making factual findings regarding whether 

Orozco’s prior convictions and sustained petitions in juvenile delinquency 

proceedings were numerous or of increasing seriousness as well as whether 

Orozco’s performance on probation or parole was unsatisfactory, we would 

find such errors harmless beyond a reasonable doubt. (See Chapman v. 

California (1967) 386 U.S. 18, 24.)
28

Here, we are fortunate to have a detailed record concerning Orozco’s 

sentencing. It is clear the trial court was diligently trying to sentence Orozco 

under the recent changes in the sentencing process per Senate Bill 567 and 

Assembly Bill 124. Counsel engaged in vigorous argument regarding the 

various aggravating and mitigating factors. And Orozco’s counsel zealously 

advocated on behalf of Orozco, clearly and emphatically arguing his position 

and making a thorough record. To this end, we note that, in response to 

defense counsel’s compelling arguments, the trial court explicitly indicated, 

“The only aggravating factor that this Court is using is the record of the prior 

conviction, as well as the personal use of a deadly weapon.” Again, after 

further objections by defense counsel, the trial court explained “that the 

aggravating factors of the prior conviction is in itself sufficient to justify the 

upper term in this case.”

Thus, based on the trial court’s own words, we are confident that even 

if the court had not improperly considered two of the aggravating factors, it 

would have selected the upper term sentence for Orozco based on one or two 

of the aggravating factors that were properly before it. The trial court could 

consider Orozco’s prior convictions based on a certified record of conviction 

without submitting the prior convictions to a jury. (§ 1170, subd. (b)(3).) 

Here, Orozco does not challenge the court’s determination that Orozco 

suffered prior convictions. Further, it is undisputed that the jury found true 

that Orozco personally used a deadly weapon.12 (See rule 4.421(a)(2).) As 

12 Below, defense counsel acknowledged that the jury found Orozco had 

personally used a deadly weapon, but argued Orozco was still entitled to have 

a jury determine whether the use of the knife was an aggravating factor. 

Orozco abandoned this argument on appeal by not addressing it in his 

opening brief. (See Christoff v. Union Pacific Railroad Co. (2005) 134 

Cal.App.4th 118, 125 [“[A]n appellant’s failure to discuss an issue in its 

opening brief forfeits the issue on appeal”].) 
29

such, on the record before us, we determine any error in the trial court’s 

consideration of certain aggravating factors that should have been proven to 

the jury is harmless beyond a reasonable doubt.

Next, Orozco contends the trial court abused its discretion “by rejecting 

the theory that the rather extreme childhood abuse and neglect Mr. Orozco 

suffered could have contributed to an overreaction when either attacked or 

provoked by his roommate and girlfriend’s brother.” However, this argument 

overlooks the fact that the court allowed defense counsel to comprehensively 

argue about mitigating factors, including Orozco’s childhood abuse and 

trauma. Moreover, the court explicitly set out how it contemplated that 

evidence:

“I did consider Mr. Orozco’s childhood trauma. I did get 

reports from CWS [Child Welfare Services] regarding the 

abuse that he did suffer when he was, I believe he was 

eight years old, and there was significant trauma that he 

did experience based on the violence in his home, and that’s 

evidence. He was eight years old at the time. The State did 

get involved.

“The time of this crime, he was I believe 26 years old at the 

time of this incident. And so the concern is whether there 

was some contributing factor in the commission of this 

crime to his childhood trauma.

“At the time of this incident when he was 26 he was living 

in a committed relationship, he had a full-time job. And 

what I’m not sure of is if there was anything about this 

incident that triggered his childhood trauma. Because I 

didn’t see the connection between this incident, other than 

the fact that he did suffer childhood trauma as a child.

“I wasn’t sure in terms of what the direct connection was 

between this crime and what triggered – what about his 

childhood trauma triggered this incident.
30

“But even if this Court did find that the contributing factor 

of his childhood trauma, there was a contributing factor in 

the commission of this crime, I do find that it’s contrary to 

the interests of justice to impose the low term, because the 

aggravating factors, the sheer violence of this incident 

outweigh the mitigating factor of the childhood trauma.

“So on both of those prongs that it’s not clear whether it 

was a contributing factor in the commission of the crime 

and that it is contrary to the interest of justice to impose a 

low term.

“As to whether this is a midterm or aggravated upper term, 

as this Court indicated this was a crime of great violence 

and those aggravating factors that this court outlined does 

outweigh the mitigating factors.”

After defense counsel objected to the court’s consideration of “any 

aggravating factor . . . outside of [Orozco’s] prior record” to deviate from the 

middle term, the court explained that it was balancing the mitigating factors 

against the aggravating factors of Orozco’s prior convictions and juvenile 

adjudications as well as the personal use of a deadly weapon as found true by 

the jury.

The court then allowed defense counsel to further argue about the 

impact of the mitigating factors before the court reiterated that the 

mitigating factors did not outweigh the aggravating factors.

On this record, it is clear the court allowed defense counsel the 

opportunity to present mitigation evidence, including under Assembly 

Bill 124, and sufficiently considered that evidence. The court, nonetheless, 

disagreed with defense counsel and concluded that the mitigation factors did 

not warrant a low term. Furthermore, the court weighed those mitigation 

factors against the two aggravating factors properly before it and determined 

that the upper term was appropriate. On appeal, Orozco essentially asks us 

to reweigh the mitigation factors. That is not our role under the abuse of 
31

discretion standard. Accordingly, we conclude that the trial court did not 

abuse its discretion in sentencing Orozco. The court did not exercise its 

discretion in an arbitrary or capricious manner, and the sentence was 

consistent with the letter and spirit of the law. (See Sandoval, supra, 41 

Cal.4th at p. 847.)

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

CASTILLO, J.

RUBIN, J.