Filed 8/6/24 P. v. Martinez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ANGEL ARTURO MUNOZ MARTINEZ,

Defendant and Appellant.

F085332

(Super. Ct. No. MCR073902)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Madera County. Ernest J. 

LiCalsi, Judge.

Matthew J. Watts, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

Michael P. Farrell, Assistant Attorney General, Brook A. Bennigson and Sally Espinoza, 

Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Levy, Acting P. J., Franson, J. and Smith, J.
2.

Defendant Angel Arturo Munoz Martinez was convicted by a jury of voluntary 

manslaughter and found to have used a weapon during the commission of the offense. 

The jury made no findings regarding aggravating circumstances. The trial court 

sentenced defendant to the upper term of 11 years.

On appeal, defendant contends the trial court erred in imposing the upper term 

without consideration of proved circumstances in mitigation and based on circumstances 

in aggravation not found true by the jury, stipulated to by the parties, or based on certified 

records of prior convictions as required by Penal Code section 1170, subdivision (b)1 as 

modified by Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567). The People 

disagree. We affirm.

PROCEDURAL SUMMARY

On June 6, 2022, the Madera County District Attorney filed an information 

charging defendant with the murder of Andres Espejo, Jr. (§ 187, subd. (a); count 1). The 

information further alleged defendant used a deadly weapon in the commission of the 

offense (§ 12022, subd. (b)(1)). The information also alleged one circumstance in 

aggravation: defendant was armed with or used a weapon at the time of the commission 

of the crime. (Cal. Rules of Court, rule 4.421(a)(2).)2

On September 22, 2022, the jury found defendant not guilty of first and 

second degree murder, but guilty of the lesser-included offense of voluntary manslaughter 

(§ 192, subd. (a)) and found true that he had personally used a deadly weapon. The jury 

made no separate finding on the use of a weapon circumstance in aggravation alleged in 

the information or on any other circumstance in aggravation.

On November 9, 2022, the trial court sentenced defendant to a term of 11 years 

(the upper term) on count 1. The court also imposed and stayed pursuant to section 654 a 

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 All further rules references are to the California Rules of Court.
3.

one-year weapon enhancement on count 1. The court found the following circumstances 

in aggravation and in mitigation true: in aggravation, “defendant was armed with a 

deadly weapon, personally used a deadly weapon at the time of the offense, ... was on 

probation in Case N[o.] CCR057755, which is a case before the Court right now, and that 

based upon this new case, his performance on probation has been unsatisfactory”;3in 

mitigation, “his prior record is minimal[.]” The court declined to find true the other 

circumstances in mitigation that defendant contended applied: that Espejo was a willing 

participant or provoker in the incident (rule 4.423(a)(2)), the offense was unlikely to recur 

(rule 4.423(a)(3)), defendant mistakenly believed his conduct was legal 

(rule 4.423(a)(7)), and defendant was suffering from a mental condition that significantly 

reduced his culpability (rule 4.423(b)(2)).

On November 17, 2022, appellant filed a notice of appeal.

FACTUAL SUMMARY

The Prosecution’s Case 

V.M. was in a dating relationship with Espejo for approximately one and a half 

years, from about early 2020 to July or August 2021. They remained friendly after their 

relationship ended and would sometimes “get together.” By October 2021, V.M. had 

begun dating defendant. They dated for approximately six or seven months. Their 

relationship ended in February 2022, but they remained friendly after. Espejo and 

defendant both lived walking distance from V.M.’s home in Madera and would visit her 

without an invitation.

On February 13, 2022, V.M. stayed at defendant’s home. While she was upstairs 

and she believed defendant was downstairs drinking alcohol with his friends, she noticed 

defendant and Espejo fighting across the street from defendant’s home. Defendant 

3 On its own motion, the trial court took judicial notice of defendant’s prior criminal 

case in Madera Superior Court case No. CCR057755.
4.

attempted to break a beer bottle on Espejo. V.M. came downstairs and stopped the fight. 

V.M. was in a dating relationship with defendant at that time so she stayed at his home 

after the fight concluded.

On Easter Day 2022, V.M.’s friend hosted a party for the friend’s daughter. V.M. 

and Espejo attended the party. Espejo got himself a plate of food and then “took off 

walking.” Approximately an hour and a half later, defendant saw V.M. at the party as he 

and his sisters drove by in defendant’s sister’s burgundy van. V.M. told defendant to 

leave because she was not on good terms with him at that time. Defendant and his sisters 

then drove away. About 10 or 15 minutes later, defendant returned in the same van. He 

walked to the fence at the front of the property and V.M., who was seated on the porch, 

walked to the fence to meet him. He told her that he wanted her to leave the party with 

him and go to his home. V.M. said no, and defendant “got upset.” They argued through 

the fence and, after V.M. calmed down, she walked around the fence to tell defendant she 

did not want to have the conversation there. Defendant then hit V.M on her jaw with a 

closed fist. People at the party saw defendant hit V.M. and moved closer. Espejo 

“happened to be walking by at the time” and he came to help V.M. Espejo and defendant 

fought. Espejo held an aluminum tube during the fight. When he tried to hit defendant, 

sand sprayed from the tube. V.M. did not see whether Espejo actually hit defendant with 

the tube. She did see that four other people attempted to make defendant leave by 

“tossing” him away, but defendant kept coming back. Defendant told V.M. that if she did 

not go home, he would “beat [her] ass.” V.M. did not see what happened next because 

she fainted and awoke in the bathroom of her friend’s home.

The day after the scene at the Easter Day party, V.M.’s friend Elliot, who was 

involved in “toss[ing]” defendant, gave V.M. a black folding knife inscribed with the 

word “ ‘Black.’ ” She kept the knife in her purse for protection. Sometime in the next 

several days, defendant took the knife from V.M.’s purse while she was in his car, telling 

her he needed it for his new job.
5.

On May 15, 2022, V.M. had made plans to see Espejo in the evening, but they had 

not decided on a time. In the afternoon on the same date, V.M. contacted defendant for a 

ride to a convenience store to buy chips. Defendant agreed and took V.M. and her 

younger sister, Y.M., to the store at approximately 5:00 p.m. On the way back from the 

store, V.M. and defendant had a disagreement regarding the music to play on the car 

stereo. She could tell defendant was upset. Defendant planned to drop V.M. off at home 

by way of the alley behind her home. However, when they arrived, a black truck blocked 

the alley, so defendant drove V.M. and her sister to the front of the apartment complex. 

As defendant drove, Espejo emerged from the apartment complex and moved away from 

the complex on the sidewalk. Defendant stopped the vehicle six or seven feet from 

Espejo, took something from his pocket or the side of his body, and ran toward Espejo. 

V.M. exited the vehicle, ran to her apartment and back—which took only a matter of 

seconds—and saw defendant stab Espejo twice. When defendant stabbed Espejo, Espejo 

had nothing in his hands and was backing away. Espejo said, “ ‘[y]ou got me,’ ” removed 

his shirt, and used it to put pressure on the stab wounds, and collapsed several steps 

away; defendant reentered his vehicle, told V.M. that he hoped Espejo would die, and 

left; and V.M. went to Espejo and yelled for help.

The first police officer to arrive on scene attempted to administer lifesaving 

measures to Espejo, but at the first chest compression it became clear to the officer that 

lifesaving measures would not be successful due to the extent of Espejo’s wounds. The 

officer concluded that Espejo was deceased.

Espejo suffered three stab wounds: the first, to his center mid-chest, going 

through the sternum and perforating his aorta; the second, to his left mid-chest area, 

penetrating his lung; and the third, to his left lower chest, incising his diaphragm and 

striking his spleen. Any of those injuries alone could have been fatal.

On May 15, 2022, between 5:00 p.m. and 6:00 p.m., defendant called his brother 

J.M., said he was in trouble, and asked for money from J.M. and their other brother A.M. 
6.

J.M. and A.M. met defendant at a gas station in Fresno. Defendant appeared to be 

worried and “walking around a lot.” Defendant eventually told A.M. and J.M. that he had 

“knifed someone.”

At approximately 8:00 p.m. or 9:00 p.m. on the same date, Madera Police 

Detective Hector Garibay found the van that defendant used during the stabbing. When 

he searched the van, Garibay found blood drops on the roof above the driver seat, V.M.’s 

cell phone on the front passenger floorboard, and a black tank top in the cargo area that 

contained a bloody folding knife. Defendant’s fingerprint was found on the knife.

On the morning of May 16, 2022, Garibay took defendant into custody at a 

different home in Madera. Defendant told Garibay “he had made a mistake, and he stated 

that he ran because he was scared.”

The Defense Case

Defendant testified that he met V.M. on February 16, 2021, and they began dating 

in March 2021. V.M. told defendant of her previous relationship with Espejo. She said 

that Espejo mistreated and beat her. In November 2021, V.M. told defendant that Espejo 

was stalking her.

On February 12, 2022, defendant and V.M. went to a convenience store to buy 

soda. Espejo approached him from behind and said, “ ‘Happy birthday, Primo.’ ” That 

was the first time the two men had met. The following day, Espejo walked down the 

sidewalk in front of his apartment and defendant believed he was looking for V.M. 

Defendant had never seen Espejo pass by his apartment before. He approached Espejo 

and asked “what his problem was.” Espejo responded that V.M. “was his.” Defendant 

responded that V.M. lived with him. Espejo lunged toward defendant and hit him. The 

two struggled against each other until V.M. broke up the fight. After the fight, Espejo 

shouted things at defendant that defendant understood to mean that Espejo used to be a 

gang member.
7.

Defendant went to the party on Easter Sunday 2022. But he was not angry with 

V.M. She was upset with him because he could not celebrate with her the prior day 

because he was scheduled to work. When defendant arrived at the party, he had been 

drinking alcohol but he was not drunk. He did not hit V.M. that day and had never hit 

her. However, when V.M.’s friend approached, defendant told her to “mind her 

business.” Defendant then got into a fight with two other men at the party. During the 

fight, defendant saw Espejo crossing the street with a metal tube. Espejo swung the 

metal tube at defendant and defendant raised his hand to defend himself. Espejo hit him 

in the hand with the tube three times. The other men defendant was originally fighting 

also hit defendant.

On May 14, 2022, V.M. gave defendant a black knife and said it was for his work.

On May 15, 2022, V.M. sent defendant a message saying she was going to go with 

“her baby” to Fresno. Defendant understood that to mean she was going with another 

person to Fresno. She also sent defendant a message calling him “Andres.” Later that 

day, V.M. asked defendant to take her to the convenience store to buy chips for her 

daughter. Defendant did so even though he had been upset with her earlier in the day. 

When defendant asked V.M. at the convenience store why she had called him “Andres,” 

she told him to “ ‘[c]alm down.’ ” They did not speak on the ride back from the store and 

defendant felt “depressed.”

When defendant approached V.M.’s apartment complex, they saw Espejo and V.M. 

said, “ ‘Oh, my God.’ ” Defendant wanted to fight him because “he was looking for 

[V.M.]” Defendant did not know that V.M. and Espejo might be dating. Defendant 

stopped the vehicle and Espejo stopped moving. Defendant got out of the vehicle and 

Espejo walked toward him. When the two men were approximately six feet from each 

other, Espejo made a motion as “if he had a gun” in his waistband. Defendant was scared 

Espejo would kill him so he took out his knife. Defendant made a stabbing motion to 

scare Espejo away. He was unsure whether he stabbed Espejo at that time or not. Espejo 
8.

then backed away and moved his hand to his waist again. Defendant did not realize that 

he had stabbed Espejo. He thought Espejo might have been reaching for a gun. Espejo 

grabbed defendant and tried to hit him. Defendant responded by stabbing Espejo twice. 

Espejo soon fell over. Defendant told V.M. that she got “what she was after [¶] ... [¶] 

[t]hat one of [them was] injured.” Defendant ran to the van and fled.

Soon after, defendant spoke to his siblings and decided to return to Madera to turn 

himself in.

DISCUSSION

Defendant contends that the trial court erred in imposing the upper term because it 

(1) disregarded mitigating circumstances, (2) double counted possession and use of a 

deadly weapon as circumstances in aggravation, and (3) relied on two aggravating 

circumstances that were unfounded because they were not based on the fact of prior 

convictions proved by certified records, stipulated to by the parties, or found true by the 

jury. The People respond that the trial court properly stayed the weapon enhancement 

and relied on the jury’s true finding on that enhancement allegation to find the use of a 

weapon circumstance in aggravation true and relied on the exception set forth in 

section 1170, subdivision (b)(3) by taking judicial notice of defendant’s prior conviction 

in the case before it to find the other circumstances in aggravation true. The People do 

not respond to defendant’s contentions that the court counted the possession and use of a 

deadly weapon circumstance in aggravation twice or that the court disregarded 

appropriate circumstances in mitigation.

We agree with the People that the circumstances in aggravation were found true in 

conformity with section 1170 and we conclude that the trial court did not abuse its 

discretion in not crediting defendant’s proposed circumstances in mitigation.

I. Additional Background

The information alleged a single circumstance in aggravation: defendant was 

armed with or used a weapon at the time of the commission of the crime. (See 
9.

rule 4.421(a)(2).) Despite only the single circumstance in aggravation having been pled, 

the probation report recommended that the trial court find the following circumstances in 

aggravation: defendant’s prior convictions were numerous and increasing in seriousness 

(rule 4.421(b)(2)); defendant was on probation when the crime was committed 

(rule 4.421(b)(4); and defendant’s performance on probation was “unsatisfactory as 

evidenced by his commission of new criminality” (rule 4.421(b)(5)).

Defendant’s trial counsel objected to consideration of defendant’s criminal history 

because the trial court did not have before it a certified record of defendant’s prior 

convictions. The court responded that it had “CCR057755”—which, according to the 

probation report and defense counsel’s response to the court, was the case in which 

defendant was convicted of driving under the influence of alcohol—“on calendar, and 

that [was] better than a certified record, that [was] the actual file of conviction and the 

fact that [defendant] was on probation at the time.” The court took judicial notice of that 

case.

The trial court found true “the following circumstances in aggravation: ... 

defendant was armed with a deadly weapon, personally used a deadly weapon at the time 

of the offense, ... defendant was on probation in [c]ase N[o]. CCR057755, which [was] 

before the [trial] [c]ourt [at the time of sentencing], and that based upon this new case, his 

performance on probation ha[d] been unsatisfactory ....”

Defendant argued in his sentencing brief that the trial court should find true the 

following circumstances in mitigation: “[t]he victim was an initiator o[r] willing 

participant in, or aggressor or provoker of the incident” (rule 4.423(a)(2)), “[t]he crime 

was committed because of an unusual circumstance, such as great provocation, that is 

unlikely to recur” (rule 4.423(a)(3)), “defendant mistakenly believed that he had the right 

to self-defense” (see rule 4.423(a)(7) [“defendant believed that he or she had a claim or 

right to the property taken, or for other reasons mistakenly believed that the conduct was 

legal”]), defendant “ha[d] an insignificant record of criminal conduct” (rule 4.423(b)(1)), 
10.

and “defendant was provoked, and the provocation was significant enough to where a 

reasonable person would lose the capacity for self-control.” (See rule 4.423(b)(2) 

[“defendant was suffering from a mental or physical condition that significantly reduced 

culpability for the crime”].) The court found true “the circumstance[] in mitigation that 

[defendant’s] prior record is minimal[,]” but otherwise found the requested circumstances 

in mitigation not true as follows: 

“as far as your first circumstance in mitigation, the victim was an 

initiator or willing participant or aggressor or provoker of the incident, I 

reject that. The victim was walking down the street. The crime was 

committed because of great provocation, that is why the jury found 

manslaughter. But the provocation that I believe the jury found had nothing 

to do with the victim on that day. Provocation, I think the jury found, was 

based upon not just the fight that occurred previously, but upon—based 

upon the—their mutual girlfriend, who created that provocation. Clearly, I 

don’t think the victim created any provocation as far as this incident.... But

I don’t find any mental or physical condition that the defendant was 

suffering from and so I am not going to strike the enhancement [sic], as 

stated in your sentencing brief.” [¶] ... [¶] 

“I have no information that it is [not] likely to occur again. Based 

upon the fact that I heard this trial and the defendant was involved in 

numerous fights, I believe it is going to occur again. I believe the 

defendant has not just a problem with alcohol—because in his CCR case 

that was his second DUI—I think it—I think it will occur again so I reject 

that as well.”

II. Applicable Legal Framework and Standard of Review

Effective January 1, 2022, Senate Bill 567 amended section 1170, restricting a trial 

court’s sentencing discretion, including its ability to impose the upper term for a 

conviction. (Stats. 2021, ch. 731, § 1.3.) Pursuant to Senate Bill 567, section 1170 now 

precludes a trial court from imposing a sentence exceeding the middle term for any 

offense with a sentencing triad, unless “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 
11.

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).) In other words, Senate Bill 567 provides for a 

presumptive middle term absent the presence of circumstances in aggravation that justify 

deviating from the middle term, the facts underlying which have either been stipulated to 

by the defendant or proven beyond a reasonable doubt at trial. (§ 1170, subd. (b)(1) & 

(2); People v. Lopez (2022) 78 Cal.App.5th 459, 464, disapproved on another ground in 

People v. Lynch (Aug. 1, 2024, S274942) ___ Cal.5th ___ [2024 Cal. LEXIS 4157, 

pp. 29–30].)

Notwithstanding this limitation, “the court may consider the defendant’s prior 

convictions in determining sentencing based on a certified record of conviction without 

submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).) Section 1170, as 

amended by Senate Bill 567, further provides, in pertinent part: “The court shall set forth 

on the record the facts and reasons for choosing the sentence imposed. The court may not 

impose an upper term by using the fact of any enhancement upon which sentence is 

imposed under any provision of law.” (§ 1170, subd. (b)(5).)

“A trial court’s sentencing decision is subject to review for abuse of discretion.” 

(People v. Hicks (2017) 17 Cal.App.5th 496, 512.) A court abuses its discretion when its 

ruling “falls outside the bounds of reason.” (People v. DeSantis (1992) 2 Cal.4th 1198, 

1226.) 

“In reviewing for abuse of discretion, we are guided by 

two fundamental precepts. First, ‘ “[t]he burden is on the party 

attacking the sentence to clearly show that the sentencing decision 

was irrational or arbitrary. [Citation.] In the absence of such a 

showing, the trial court is presumed to have acted to achieve 

legitimate sentencing objectives, and its discretionary determination 

to impose a particular sentence will not be set aside on review.” ’ 

[Citations.] Second, a ‘ “decision will not be reversed merely 

because reasonable people might disagree. ‘An appellate tribunal is 

neither authorized nor warranted in substituting its judgment for the 

judgment of the trial judge.’ ” ’ [Citation.] Taken together, these 

precepts establish that a trial court does not abuse its discretion 

unless its decision is so irrational or arbitrary that no reasonable 
12.

person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 

367, 376–377.)

III. Analysis

As a threshold matter, the parties agree that the trial court was permitted to 

consider the circumstance in aggravation that defendant was armed with or used a 

weapon at the time of the commission of the crime (rule 4.421(a)(2)) because the jury 

found true beyond a reasonable doubt that “during the commission of this crime, ... 

[d]efendant ... personally used a deadly and dangerous weapon, to wit, a [k]nife, within 

the meaning of ... section 12022[, subdivision (b)(1)],” and the court declined to impose 

a weapon enhancement (§ 1170, subd. (b)(5)). Defendant contends that the court 

inappropriately considered that circumstance as two separate circumstances because in 

listing the circumstances in aggravation, the court said: “I’m going to find that the 

defendant was armed with a deadly weapon, personally used a deadly weapon at the time 

of the offense ....” We do not understand the court’s statement to be considering both 

defendant having been armed with a deadly weapon and having used a deadly weapon. 

Instead, it appears to us that the court merely corrected its initial comment that defendant 

was merely armed with a deadly weapon, but actually used the weapon in the 

commission of the offense. In any event, circumstances in aggravation and mitigation are 

not merely a quantitative measure. Sentencing courts have “ ‘wide discretion’ ” in 

qualitatively and quantitatively weighing the factors against each other. (People v. Avalos

(1996) 47 Cal.App.4th 1569, 1582.) A trial court does not merely count the number of 

circumstances in aggravation and mitigation in exercising its discretion to select among 

available terms of imprisonment. Even if the court considered that defendant possessed a 

weapon as a separate circumstance in aggravation, such consideration made no 

difference; the court certainly understood that defendant’s use of a weapon required 

defendant to have first been armed with a weapon.
13.

Next, the trial court found true three circumstances in aggravation in reliance on 

its judicial notice of defendant’s then-pending violation of probation case. It did not have

certified records of prior convictions before it. As noted above, section 1170, 

subdivision (b)(3) permits courts to “consider the defendant’s prior convictions in 

determining sentencing based on a certified record of conviction without submitting the 

prior convictions to a jury.” The People ask us to conclude that a court taking judicial 

notice4 of its own records complies with section 1170, subdivision (b)(3). Defendant 

disagrees, noting that no published case has reached that conclusion, but also offering no 

authority to the contrary. We agree with the People.

The trial court’s reliance on its own judicially noticed records of defendant’s 

driving under the influence of alcohol conviction was proper. (See Evid. Code, § 452, 

subd. (d).) We reject defendant’s assertion the court erred because the records of the 

driving under the influence conviction were not “certified.” (See § 1170, subd. (b)(3).) 

Defendant has offered no argument and cited no authority that, in this context, the court’s 

reliance on its own judicially noticed records of conviction did not constitute a certified 

record or its functional legal equivalent. (Evid. Code, §§ 452, subds. (c)–(d), 452.5, 

subd. (b)(1); People v. Franklin (2016) 63 Cal.4th 261, 280; In re Vicks (2013) 56 Cal.4th 

274, 314.) Indeed, a normal process for a prosecutor to provide a certified record of 

conviction can include requesting the court clerk’s office provide a copy of the court’s 

file reflecting a defendant’s conviction and certify that it is correct. (See People v. 

Delgado (2008) 43 Cal.4th 1059, 1066 [“A common means of proving the fact and nature 

of a prior conviction is to introduce certified documents from the record of the prior court 

proceeding and commitment to prison, including the abstract of judgment describing the 

4 The People suggest the trial court “impliedly judicially noticed” the record of 

conviction. To be clear, the court explicitly took “judicial notice of [Madera Superior 

Court case No.] CCR05775” and noted both that it had the “actual file of conviction and 

... that [defendant] was on probation at the time [of the offense].”
14.

prior offense.”].) We find no error in the court avoiding that unnecessary step in this 

case. 

Based on the trial court’s review of its own records of defendant’s conviction in 

Madera Superior Court case No. CCR05775, it determined that defendant had been on 

probation at the time of the offense and, based on defendant’s commission of the offense 

in this case, his performance on probation had been unsatisfactory. Contrary to 

defendant’s contention, the two circumstances in aggravation regarding defendant having 

been on probation at the time of the offense (rule 4.421(b)(4)) and his probation 

performance having been unsatisfactory (rule 4.421(b)(5)) were not unfounded. The 

court’s circumstances in aggravation determinations were not error.

Next, defendant contends that the trial court disregarded circumstances in 

mitigation that Espejo was a “provoker of the incident” (rule 4.423(a)(2)) and that “[t]he 

crime was committed because of an unusual circumstance, such as great provocation, that 

[was] unlikely to recur” (rule 4.423(a)(3)) which the jury necessarily found true by nature 

of the voluntary manslaughter verdict. Defendant’s conclusion is incorrect. He correctly 

notes that in order to have found defendant not guilty of murder but guilty of voluntary 

manslaughter, the jury must have determined either that Espejo provoked the altercation 

or that defendant actually but unreasonably believed he was in imminent danger of being 

killed or suffering great bodily injury which necessitated use of deadly force. The only 

paths to a voluntary manslaughter verdict instructed upon by the court were heat of 

passion and imperfect self-defense. However, defendant goes on to conclude that the 

“verdict shows that the jury must have concluded either [sic] that Espejo provoked the 

altercation, whichever path it took.” The jury could well have concluded that defendant 

actually but unreasonably believed Espejo presented an imminent danger of killing or 

inflicting great bodily injury upon defendant or that use of deadly force was necessary to 

defend against the danger. Contrary to defendant’s contention, the jury did not 

necessarily conclude that Espejo provoked defendant. Moreover, all the testimony on the 
15.

issue indicated that defendant stopped his vehicle and pursued Espejo. Defendant’s own 

testimony indicated defendant “wanted to fight” Espejo “[b]ecause he was looking for 

[V.M.]” On that record, the court’s refusal to conclude that Espejo provoked or initiated 

the confrontation was not an abuse of discretion.

As to whether the crime was committed due to an unusual circumstance unlikely 

to recur, the trial court’s determination was not an abuse of discretion. It concluded that 

defendant had been involved in numerous fights and had a problem with alcohol. Both of 

those conclusions were supported by the record—defendant was involved in a fight on 

Easter Day 2022, prior to Espejo’s arrival, at which time witnesses indicated he was 

intoxicated. He had also been convicted of driving under the influence of alcohol. We 

cannot conclude that the court abused its discretion in refusing to conclude that the 

offense in this case was committed due to an unusual circumstance unlikely to recur.

Because we conclude there was no error in the trial court’s consideration of the 

circumstances in aggravation and rejection of the proposed circumstances in mitigation, 

defendant’s claim fails.

DISPOSITION

The judgment is affirmed.