Filed 7/31/13 P. v. Diaz CA4/3 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION THREE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

JOSEPH FELIX DIAZ, 

 Defendant and Appellant. 

 G046513 

 (Super. Ct. No. 10CF2797) 

 O P I N I O N 

 Appeal from a judgment of the Superior Court of Orange County, 

Daniel Barrett McNerney, Judge. Affirmed. 

 Nancy L. Tetreault, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia, Quisteen 

S. Shum and Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and 

Respondent. 

* * * 
2

INTRODUCTION

A jury convicted Joseph Felix Diaz of one count of first degree murder 

(Pen. Code, § 187, subd. (a)) and found that, in committing murder, he personally used a 

firearm (id., § 12022.5, subd. (a)) and discharged a firearm causing death (id., 

§ 12022.53, subd. (d)).

1

 The trial court sentenced Diaz to an aggregate term of 50 years 

to life in prison. 

In seeking reversal, Diaz argues (1) by failing to correct the prosecutor’s 

misstatement about the law of self-defense, the trial court allowed the jury to be 

presented with an erroneous theory of guilt; (2) the trial court committed instructional 

error by giving CALCRIM No. 522 instead of CALJIC No. 8.73 and by failing to further 

define the word “provocation” in CALCRIM No. 522; and (3) to the extent his claims of 

instructional error were forfeited, his counsel was ineffective by failing to request 

CALJIC No. 8.73 and a further definition of “provocation.” 

We affirm. We reject Diaz’s argument the trial court presented the jury 

with an erroneous theory of guilt. Although we conclude Diaz forfeited his claims of 

instructional error, we find no ineffective assistance of counsel. 

FACTS

We view the evidence in the light most favorable to the verdict and resolve 

all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes

(1986) 42 Cal.3d 284, 303.) 

In the late afternoon of October 4, 2010, Faustino Armenta was driving a 

van through a residential area of southeast Santa Ana. Three passengers were inside the 

 

 

1

 The jury acquitted Diaz of street terrorism (Pen. Code, § 186.22, subd. (a)) and did not 

find he committed the murder for a criminal street gang purpose or for the benefit of, at 

the direction of, or in association with a criminal street gang. This opinion therefore 

omits discussion of evidence relating to those charges and allegations. 
3

van with Armenta: Karla Vasquez, Irvins Jimenez, and “Porky.” Diaz was riding his 

bicycle along the same street as the van. One witness testified Diaz was riding his 

bicycle in the same direction as the van; another witness testified Diaz was riding in the 

opposite direction. 

The people inside the van were yelling. As Diaz pedaled past the van, 

“minding his business,” someone from inside the van threw a bottle at him. The bottle 

missed Diaz, and he continued pedaling his bicycle down the street. After Diaz rode past 

the van, Armenta made a left turn. The van hit the curb and stalled. 

Armenta and Porky, each holding a beer bottle, immediately got out of the 

van. Armenta chased Diaz, while Porky, walking at a fast pace, followed. Diaz, who had 

gotten off his bicycle, ran and took cover between a truck and some bushes. Armenta 

spotted Diaz and ran toward him. Diaz stepped out from his hiding place and chased 

Armenta down the street. Diaz was holding a gun. 

Armenta veered off toward the opposite corner of the street and tried to 

duck or get out of the way. At some point, Diaz and Armenta faced off and exchanged 

words. Diaz fired the gun at Armenta, who threw the beer bottle at Diaz and fled. Diaz 

chased Armenta until Armenta fell. Diaz stood over him and fired several shots in rapid 

succession. Diaz then placed the gun in the back of his pants and walked away. 

Armenta stood and ran back to the van. He tried to start the engine but was 

too weak. The passengers removed Armenta from the van, laid him on the ground, and 

called for an ambulance. Armenta died. 

About two hours after the shooting, Officer David Rondou of the Santa Ana 

Police Department conducted a crime scene investigation. He established the time of the 

shooting as 5:17 p.m. He found blood on the outside of the van on the driver’s side door 

jamb, broken beer bottles in the street near the van’s rear bumper, and an unopened bottle 

of beer in a nearby gutter. Down the street, between 929 and 931 Oak Street, he found a 

bicycle and saw a car in a driveway. The car’s rear window was shot out. 
4

At the base of a tree in front of 931 Oak Street, Rondou found three bullet 

shell casings from a semiautomatic handgun, and, 150 to 200 feet from there, found three 

more casings and a bullet slug. A trail of blood led back to the van. Rocky Edwards, a 

forensic firearm and tool mark examiner for the Santa Ana Police Department, analyzed 

the shell casings and determined they were fired from the same gun. 

On the day after the killing, Dr. Anthony Juguilon, a forensic pathologist, 

conducted an autopsy of Armenta. Dr. Juguilon located three gunshot wounds, each one 

with an entrance and corresponding exit. He marked the three wounds as A, B, and C, 

although he could not determine the sequence of gunshots. 

Gunshot wound A was located on Armenta’s upper left arm. Dr. Juguilon 

described it as a superficial, nonlethal wound. Gunshot wound B was located on 

Armenta’s back. The bullet entered Armenta’s back from behind the chest cavity, 

lacerated the right lung and a major artery, and exited through the upper right chest. 

Dr. Juguilon testified gunshot wound B, which travelled from back to front and upward 

and rightward, was a lethal injury and an independent cause of death. Gunshot wound C 

was located on the back of Armenta’s right thigh. The bullet entered the back of the 

thigh, lacerated the femoral artery, and exited through the right groin. Dr. Juguilon 

testified gunshot wound C, which travelled back to front and upward and leftward, was a 

lethal injury and an independent cause of death. 

Dr. Juguilon testified it was possible for someone who has sustained the 

type of injuries suffered by Armenta to walk a block before passing out from lack of 

blood. Dr. Juguilon testified Armenta’s official cause of death was multiple gunshot 

wounds, specifically, wounds B and C. 

DIAZ’S TESTIMONY 

Diaz testified in his own defense. He testified that in the late afternoon of 

October 4, 2010, he was relaxing with three other men in the front yard of a friend’s 
5

home. He heard what he thought were gunshots or shattering bottles and, looking down 

the street, saw a van make a U-turn. People in the van were shouting curses at Diaz and 

the others in the yard. Diaz’s friend did not want any trouble and told everyone to leave. 

Diaz got on his bicycle and rode toward his girlfriend’s house. He was 

alone and carried a gun in his waistband for protection. The gun had a magazine of 

bullets, but none of the bullets was chambered. 

While Diaz had stopped to talk with some people he knew, the van drove 

past. The people inside the van said something. The van made a U-turn. Diaz got back 

on his bicycle and rode away. As the van passed Diaz a second time, he thought he heard 

gunshots and a car window shatter. Diaz rode past the van. He looked back and saw it 

had stopped. He thought the people in the van were shooting at him so he got off his 

bicycle and took cover behind a truck. Armenta ran toward the place where Diaz was 

hiding. Diaz was scared and thought he was going to die. He did not know whether 

Armenta was armed. When Armenta was about 15 feet away, Diaz stepped out from his 

hiding place and fired two or three times in his direction. 

After firing the shots, Diaz ran, leaving his bicycle behind. Diaz claimed 

he was not chasing Armenta and did not know whether any of the gunshots had hit him. 

After running awhile, Diaz saw Armenta again. Diaz testified he did not know whether 

Armenta was coming toward him. Diaz did not see a weapon on Armenta. Diaz fired 

three more shots. Armenta fell, and Diaz quickly walked away. 

Diaz got rid of the gun along a bicycle trail and walked to a friend’s house. 

He was arrested three days later. 

Diaz testified he believed he was facing a deadly encounter with Armenta 

and “[i]t was him or me.” On cross-examination, when confronted with the 

Dr. Juguilon’s testimony, Diaz denied shooting Armenta in the back. Diaz testified 

Armenta “kind of like f[e]ll” while being shot, and that could account for Dr. Juguilon’s 

conclusion Armenta was shot in the back. Diaz denied shooting Armenta after he fell. 
6

When asked whether he was trying to kill Armenta with the first three gunshots, Diaz 

replied, “[y]es. For my own protection, yes.” 

DISCUSSION

I. 

The Trial Court Did Not Present the Jury with an 

Erroneous Theory of Guilt. 

Diaz argues that, in closing argument, the prosecutor made an incorrect 

statement about the law of self-defense. Diaz does not, however, argue prosecutorial 

misconduct; instead, he argues the trial court erred by not correcting the prosecutor’s 

error with clarifying jury instructions. He contends that the trial court, by not correcting 

the prosecutor’s mistake, allowed the jury to be presented with conflicting theories of 

guilt, one of which was erroneous. We reject this argument because (1) the prosecutor 

did not make an incorrect statement of the law; (2) Diaz did not object to the prosecutor’s 

statement; and (3) the trial court correctly instructed the jury. 

Diaz challenges the following statement made by the prosecutor in closing 

argument: “The law says, again, he’s not required to retreat. He doesn’t have to run 

away. If he’s facing deadly force, he doesn’t have to run away. But I go back to 

[CALCRIM No.] 3474. You don’t get to pursue. You don’t get to pursue when you’re 

not looking at any sort of deadly force. And he told you from the witness stand that he 

never saw a gun, a bottle, a knife, anything that could inflict great bodily injury or death 

on himself, but yet he chose to act.” Diaz’s counsel did not object to this statement. 

Diaz asserts the prosecutor’s statement is an incorrect interpretation of 

CALCRIM No. 3474. As read to the jury in this case, CALCRIM No. 3474 stated: “The 

right to use force [in] self-defense continues only as long as the danger exists or 

reasonably appears to exist. When the attacker withdraws or no longer appears capable 

of inflicting any injury, the right to use force ends.” The trial court also instructed the 
7

jury with CALCRIM No. 3470 (self-defense). As part of that instruction, the court told 

the jury: “A defendant is not required to retreat. He’s entitled to stand his ground and 

defend himself and if reasonably necessary to pursue the assailant until the danger of 

death or great bodily injury is passed. This is also true even if safety could have been 

achieved by retreating.” 

The prosecutor’s argument was consistent with CALCRIM Nos. 3470 and 

3474.

2

 The prosecutor correctly argued that Diaz was “not required to retreat” and 

“doesn’t have to run away” if he was facing deadly force. The prosecutor then argued 

Diaz did not have the right to pursue “when you’re not looking at any sort of deadly 

force.” That statement is consistent with the part of CALCRM No. 3470, given by the 

court, stating a victim may pursue the assailant only “until the danger of death or great 

bodily injury is passed.” The prosecutor then argued Diaz was not facing deadly force 

because he testified he did not see Armenta carrying “a gun, a bottle, a knife, anything 

that could inflict great bodily injury or death.” In so arguing, the prosecutor was properly 

discussing the evidence and the reasonable inferences to be drawn from it. (People v. 

Morales (2001) 25 Cal.4th 34, 44 (Morales) [“At closing argument a party is entitled 

both to discuss the evidence and to comment on reasonable inferences that may be drawn 

therefrom”].) 

Because the prosecutor did not make an incorrect statement of the law, 

there was nothing for the trial court to correct or clarify, and the jury was not presented 

with inconsistent theories of guilt. 

Reversal would not be warranted even assuming the prosecutor misstated 

the law. “When a defendant believes the prosecutor has made remarks constituting 

misconduct during argument, he or she is obliged to call them to the court’s attention by a 

timely objection. Otherwise no claim is preserved for appeal.” (Morales, supra, 25 

 

 

2

 Diaz does not argue either CALCRIM No. 3474 or CALCRIM No. 3470 incorrectly 

states the law. 
8

Cal.4th at pp. 43-44.) Diaz voiced no objection to what he now contends was the 

prosecutor’s misstatement of the law. He tries to avoid forfeiture of his claim by 

phrasing it as trial court error in failing to correct the prosecutor’s comments and 

permitting an erroneous legal theory to be presented to the jury. Morales forecloses that 

argument. 

In Morales, supra, 25 Cal.4th at pages 37, 41, the defendant was convicted 

of possessing phencyclidine (PCP). On appeal, the defendant asserted the prosecutor’s 

closing argument misled the jury about the law governing PCP possession. (Id. at pp. 37, 

42, 47.) As in this case, the defendant had not objected at trial to the prosecutor’s 

comments. (Id. at pp. 43-44.) Instead, relying on People v. Guiton (1993) 4 Cal.4th 1116 

(Guiton) and People v. Green (1980) 27 Cal.3d 1 (Green), the defendant contended the 

prosecutor’s argument allowed the jury to be presented with an improper theory of guilt, 

which was based on evidence the defendant had PCP in his system at the time of his 

arrest. (Morales, supra, at pp. 42-43, 46-47.) 

The California Supreme Court rejected the defendant’s argument. The 

court stated: “[T]he court did not present to the jury a case that was premised on a legally 

incorrect theory. The prosecutor arguably misstated some law, but such an error would 

merely amount to prosecutorial misconduct [citation] during argument, rather than trial 

and resolution of the case on an improper legal basis.” (Morales, supra, 25 Cal.4th at 

p. 43.) The jury instructions accurately stated the law and were controlling. (Id. at 

p. 48.) Guiton and Green were distinguishable because, in those cases, “the court 

presented the state’s case to the jury on an erroneous legal theory or theories.” (Morales, 

supra, at p. 43.) In Green, the jury instructions were “deficient” and in Guiton, “a theory 

unsupported by evidence was presented to the jury in the very trying of the case.” 

(Morales, supra, at p. 43.) 

This case falls squarely within Morales. Here, the trial court did not 

present to the jury a case premised on a legally incorrect theory. Diaz does not contend 
9

the jury instructions were erroneous. As did the defendant in Morales, Diaz relies on 

Guiton and Green, but those cases are inapplicable for the reasons stated in Morales. At 

most, the error asserted by Diaz amounts to “prosecutorial misconduct [citation] during 

argument,” not “trial and resolution of the case on an improper legal basis.” (Morales, 

supra, 25 Cal.4th at p. 43.) 

II. 

Diaz Forfeited His Claims of Instructional Error. 

Diaz argues the trial court erred by instructing the jury with CALCRIM 

No. 522 instead of CALJIC No. 8.73 on the issue of provocation. He contends that 

CALCRIM No. 522, unlike CALJIC No. 8.73, failed to advise the jury it may consider 

provocation in determining whether the defendant acted with or without deliberation and 

premeditation. He also contends that CALCRIM No. 522 did not inform the jury that 

provocation included fearing for one’s life. 

The trial court instructed the jury with CALCRIM No. 522, as follows: 

“Provocation may reduce a murder from first degree to second degree murder and may 

reduce murder to manslaughter. The weight and significance of the provocation, if any, 

are for you to decide. [¶] If you conclude the defendant committed murder but was 

provoked, consider the provocation in deciding whether the crime was first or second 

degree murder. Also, consider the provocation in deciding whether the defendant 

committed murder or manslaughter.” 

CALJIC No. 8.73, also concerning provocation, states: “If the evidence 

establishes that there was provocation which played a part in inducing an unlawful killing 

of a human being, but the provocation was not sufficient to reduce the homicide to 

manslaughter, you should consider the provocation for the bearing it may have on 

whether the defendant killed with or without deliberation and premeditation.” 
10

Diaz argues the trial court erred by giving CALCRIM No. 522 instead of 

CALJIC No. 8.73, for two reasons. First, he argues, “[CALCRIM No. 522] did not 

inform the jury that provocation included [Diaz]’s fear for his life.” Diaz states he is not 

challenging the trial court’s failure to specifically define “provocation.” Instead, he 

argues, “the court’s definition of provocation was not sufficiently broad to overcome the 

instruction[al] error of CALCRIM No. 522, based on the facts of this case.” Second, he 

argues CALCRIM No. 522 did not inform the jury that provocation “was relevant, not 

only in determining if the defendant committed murder versus manslaughter, but also in 

determining whether it negated [Diaz]’s ability to premeditate and deliberate so as to 

reduce a finding of first degree murder to second degree murder.” 

Diaz has forfeited his claims of instructional error. “Provocation,” as used 

in jury instructions, bears its common meaning and requires no further explanation in the 

absence of a request. (People v. Cole (2004) 33 Cal.4th 1158, 1217-1218.) Diaz did not 

object to CALCRIM No. 522 or ask that it be modified or amplified by defining the word 

“provocation.” (People v. Souza (2012) 54 Cal.4th 90, 118 [“because the instructions as 

given were complete and because defendant did not ask the trial court to clarify or 

amplify them, defendant may not complain on appeal that the instructions were 

ambiguous or incomplete”].) CALJIC No. 8.73 is a pinpoint instruction on a defense 

theory and therefore need not be given unless requested by defense counsel. (People v. 

Ward (2005) 36 Cal.4th 186, 214; People v. Mayfield (1997) 14 Cal.4th 668, 778.) Diaz 

did not request the trial court to give CALJIC No. 8.73. 

III. 

There Was No Ineffective Assistance of Counsel.

Diaz argues his trial counsel was ineffective for failing to request CALJIC 

No. 8.73 and by failing to request an amplification of CALCRIM No. 522 to define 

“provocation.” To prevail on a claim of ineffective assistance of counsel, Diaz must 

show both (1) his attorney’s representation was deficient in that it fell below an objective 
11

standard of reasonableness under prevailing professional standards; and (2) his attorney’s 

deficient representation subjected him to prejudice. (Strickland v. Washington (1984) 

466 U.S. 668, 687; People v. Cain (1995) 10 Cal.4th 1, 28.) Prejudice means a 

“reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” (Strickland v. Washington, supra, at p. 694.) A 

reasonable probability means a “probability sufficient to undermine confidence in the 

outcome.” (Ibid.) 

We find no deficient representation of counsel or prejudice from failure to 

request CALJIC No. 8.73. In addition to CALCRIM No. 522, the trial court gave 

CALCRIM Nos. 520 and 521. The latter instruction informed the jury that first degree 

murder requires that the defendant acted “willfully, deliberately, and with premeditation”; 

that deliberation means a decision to kill after the defendant “carefully weighed the 

considerations for and against (his/her) choice”; and that premeditation means the 

defendant “decided to kill before completing the act[s] that caused death.” (CALCRIM 

No. 521.) CALCRIM No. 522 then informed the jury: “Provocation may reduce a 

murder from first degree to second degree murder and may reduce murder to 

manslaughter. The weight and significance of the provocation, if any, are for you to 

decide.” Thus, although CALCRIM No. 522 does not expressly state that provocation 

may negate deliberation and premeditation, the jurors would understand that to be the 

case based on the instructions as a whole. 

In People v. Hernandez (2010) 183 Cal.App.4th 1327 (Hernandez), the 

Court of Appeal also rejected a claim that CALCRIM No. 522 was inadequate because it 

does not expressly tell the jury that provocation is relevant to determining whether the 

defendant killed without premeditation and deliberation. The Hernandez court stated: 

“In [People v.] Rogers [(2006) 39 Cal.4th 826], the court evaluated the potential for error 

when the jury is instructed on provocation as it relates to voluntary manslaughter, but is 

not instructed on provocation as it relates to second degree murder. [Citation.] The 
12

Rogers court concluded that the omission of a provocation instruction for second degree 

murder is not misleading. The court reasoned that ‘the jury is told that premeditation and 

deliberation is the factor distinguishing first and second degree murder’ and the 

manslaughter instruction ‘does not preclude the defense from arguing that provocation 

played a role in preventing the defendant from premeditating and deliberating; nor does it 

preclude the jury from giving weight to any evidence of provocation in determining 

whether premeditation existed.’ [Citation.] [¶] As reflected in Rogers, the fact that a 

trial court is not required to instruct on provocation for second degree murder at all

supports that it is not misleading to instruct on provocation without explicitly stating that 

provocation can negate premeditation and deliberation. Although CALCRIM No. 522 

does not expressly state provocation is relevant to the issues of premeditation and 

deliberation, when the instructions are read as a whole there is no reasonable likelihood 

the jury did not understand this concept. Based on CALCRIM No. 521, the jury was 

instructed that unless defendant acted with premeditation and deliberation, he is guilty of 

second, not first, degree murder, and that a rash, impulsive decision to kill is not 

deliberate and premeditated. Based on CALCRIM No. 522, the jury was instructed that 

provocation may reduce the murder to second degree murder. [¶] In this context, 

provocation was not used in a technical sense peculiar to the law, and we assume the 

jurors were aware of the common meaning of the term. [Citation.] . . . Considering 

CALCRIM Nos. 521 and 522 together, the jurors would have understood that 

provocation (the arousal of emotions) can give rise to a rash, impulsive decision, and this 

in turn shows no premeditation and deliberation.” (Hernandez, supra, at pp. 1333-1334.) 

The Hernandez court expressed satisfaction “that, even without express 

instruction, the jurors understood that the existence of provocation can support the 

absence of premeditation and deliberation.” (Hernandez, supra, 183 Cal.App.4th at 

p. 1334.) Thus, the trial court was not required to amplify the instructions given. (Ibid.) 
13

We agree with Hernandez. Because the jurors in this case were instructed 

with CALCRIM Nos. 521 and 522, they understood that provocation could support the 

absence of premeditation and deliberation and thereby reduce first degree murder to 

second degree murder. Thus, trial counsel’s performance was not deficient for failing to 

request CALJIC No. 8.73, and, if deficient, did not result in prejudice. 

Diaz tries to distinguish Hernandez on the ground the nature of the 

provocation in this case was different: In Hernandez, the provocation was heat of 

passion, while here, Diaz argues, he was acting in self-defense. This distinction is 

without a difference because, as we shall explain, the instructions permitted the jury to 

decide whether Diaz was provoked and acted out of fear for his life. In any case, 

CALJIC No. 8.73 would not have addressed Diaz’s distinction of Hernandez because 

CALJIC No. 8.73, as CALCRIM No. 522, uses the term “provocation” without further 

definition. 

We also find no deficient representation of counsel or prejudice from the 

failure to request an amplification or a modification of CALCRIM No. 522 on the 

meaning of “provocation.” Absent a request for an amplification or modification, the 

word “provocation” would have its usual, common meaning. (People v. Cole, supra, 33 

Cal.4th at pp. 1217-1218.) In People v. Ward, supra, 36 Cal.4th at page 215, the court 

stated, “[t]he evidentiary premise of a provocation defense is the defendant’s emotional 

reaction to the conduct of another, which emotion may negate a requisite mental state.” 

Provocation has been defined to mean “something that provokes, arouses, or stimulates” 

(Merriam-Webster’s Collegiate Dict. (11th ed. 2004) p. 1002.); provoke means “to arouse 

to a feeling or action[;] . . . to incite to anger” (Ibid.). 

In light of this common meaning of provocation, the jury could consider the 

evidence and decide whether Armenta’s conduct prompted or aroused an emotional 

response in Diaz—i.e., fearing loss of his life—that negated the mental state necessary 

for murder (malice aforethought) or the mental state necessary for first degree murder 
14

(deliberation and premeditation). “Considering CALCRIM Nos. 521 and 522 together, 

the jurors would have understood that provocation (the arousal of emotions) can give rise 

to a rash, impulsive decision, and this in turn shows no premeditation and deliberation.” 

(Hernandez, supra, 183 Cal.App.4th at p. 1334.) Further defining “provocation” in 

CALCRIM No. 522 to expressly include the emotion of fearing for one’s life was 

unnecessary and, in all reasonable probability, would not have changed the outcome of 

trial. 

In addition, the jury was instructed on voluntary manslaughter on sudden 

quarrel or heat of passion (CALCRIM No. 570), imperfect self-defense (CALCRIM 

No. 571), and self-defense (CALCRIM Nos. 505 and 3474). CALCRIM No. 570 

permitted the jury to consider whether Diaz’s response to provocation was reasonable 

and, if so, to find him guilty of voluntary manslaughter.3

 CALCRIM Nos. 505, 571, and 

3474 permitted the jury to acquit Diaz if it concluded he acted in self-defense with the 

reasonable belief that the need to use deadly force was reasonably necessary. CALCRIM 

No. 571 permitted the jury to find Diaz guilty of voluntary manslaughter rather than 

murder if the jury concluded (1) Diaz actually believed he was imminent danger of being 

killed or suffering great bodily injury and (2) he actually believed the immediate use of 

deadly force was necessary to defend against the danger, but (3) at least one of those 

beliefs was unreasonable. Thus, contrary to Diaz’s assertion, the jury was instructed to 

consider whether Diaz killed Armenta out of the reasonable or unreasonable belief Diaz’s 

life was in danger and to render the appropriate verdict. 

 

 

3

 CALCRIM No. 570 (voluntary manslaughter on sudden quarrel or heat of passion), 

states in part: “The defendant killed someone because of a sudden quarrel or in the heat 

of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, 

the defendant acted rashly and under the influence of intense emotion that obscured 

(his/her) reasoning or judgment; [¶] AND [¶] 3. The provocation would have caused a 

person of average disposition to act rashly and without due deliberation, that is, from 

passion rather than from judgment.” 
15

DISPOSITION 

The judgment is affirmed. 

 

 FYBEL, J. 

WE CONCUR: 

O’LEARY, P. J. 

RYLAARSDAM, J.