Filed 10 / 15 / 21 P. v. Reyes CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.11 15.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v.
MIGUEL ANGEL REYES, Defendant and Appellant. G059720
(Super. Ct. No. 20NF1176)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed.

John F. Schuck, under appointment by the Court of Appeal, for Defendant
and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew S.2

Mestman and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Miguel Reyes was convicted of voluntary manslaugh t er in the stabbing
death of a 17

- year

- old female acquaintance. The stabbing was the culmination of a series
of events after the victim and a group of other teenagers had converged on Reyes to escort him out of their neighborhood when he was seen act ing a ggressively toward the
victim and her friends and had taken her knife

. The victim threw a brick at Reyes as he
walk ed away . Reyes turned and threw the brick back at her ; he then rushed her with the
knife. Reyes claimed the stabbing was in self

- defense and that he lacked any conscious
intent

. Reyes now contends his conviction should be reversed because his counsel was ineffective in failing to request that the prosecut or agree to instruct the jury on involuntary manslaughter as a lesser related offense. In making t his argument , Reyes assumes the prosecutor would have agreed to the lesser related instruction if asked

. T he
record does not support that assumption.

As the Attorney General points out, the prosecutor evidenced a willingness

to instruct the jury on involuntary manslaugh t er as a lesser included offen s e of voluntary manslaughter , but only because he had initially mis read an unpublished decision of this

co urt ; he was seemingly concerned that if the jury w ere not given th e lesser included instruction, this court ’ s apparently unique perspective , as evidenced by that unpublished opinion, might prompt revers al of a conviction for voluntary manslaugh t er.

T he prosecutor gave no indication he was interested in adding involuntary manslaughter as a lesser related charge when defense counsel suggested the possi bility

. Instead, the prosecutor made clear he did n ot belie ve the facts of the case w ere consistent
with a charge of involuntary manslaughter . Thus, when the misu nderstanding about the unpublished case was resolved, the issue disappeared

.3 In any event, we conclude there was no probability the outcome would have been different if the instruction had been given. Reyes stabbed his victim four times, including twice on or around her neck, wh ich a ppeared to demonstrate a consci ous disregard for her life. Reyes argues the evidence is also sufficient to support the
conclusion he had no such intent , due to a “ fight or flight ” reaction. H e therefore
contends that , had the jury been instructed on involuntary manslaughter, it could have
concluded he acted without any specific intent and was as a result guilty only of the lesser charge. But Reyes a lready made that argument to the jury in an effort to obtain an acquittal on the voluntary manslaughter charge

. The jury’s verdict indicates it rejected the argument. There is no basis in thi s record to conclude the jury would have evaluated the same evidence differently if instructed on involuntary manslaughter.

Reyes also argues the court abused its discretion when it sentenced him to an aggravated term of 11 years for voluntary manslaughter. The Attorney General contends the claim is waived because Reyes did not object when the sentence was imposed. We agree. However, even if it were n o t waived, we would find no abuse of the

court ’ s discretion under these circumstances. We consequently affirm the judgment.

FACTS
1. The Incident On the evening of May 16, 2020, Reyes

— then age 23

— was at a park in
Anaheim with three teenage females , smoking mariju a na

. Reyes and 17

- year

- old Jolina
had also in g ested Xanax. Reyes told Jolina he wanted her to be his girlfriend ; she
rebuffed him , and he appeared to be upset.

A few minutes later, a group of young males approached and accused Reyes and his friends of “ tripping ” on them ; Jolina got into an argument with one of
them. During the argument, Reyes somehow took possession Jolina’s knife

. After the argument ended , a s the males were walking away , Reyes tried to sell them marijuana

.4 Jolina became angry at Reyes for his perceived friendliness to the males

. W hen Reyes started to walk away , Jolina asked for her knife back. Reyes re pli ed he
would return it when Jolina was sober. She responded with anger and the t wo argued. One of the other females grabbed Reyes ’ s backpack, which contained marijuana. She told him she would return the backpack when he returned Jolina ’ s knife.

When Reyes again tried to leave, the females surrounded him , and he began pushing the y oungest of them, who was 16. S he hit him ; he hit her back. He r older
sister

— the one who had taken the backpack

— joined in and the three of them started fighting

. When the fight ended, the females walk ed toward a skatepark with the backpack. Reyes followed them.

A teenage male skater at the skatepark saw the fight between Reyes and the
females ; he realized he knew Jolina and told Reyes to leave the females alone. Reyes responded by aggressively putting his hands on the skater ; the skater then pu nched Reyes , dropping him to the ground

. Other skaters, as well a s Jolina, kicked Reyes

.

After the kicking stopped, Reyes got up , pulled out the knife and began chasing the skaters , who backed off

. Reyes again demanded his backpack , but the
females wou ld not give it to him. As Reyes walk ed away, he slipped and fell ; some people laughed.

Reyes then came back to Jolina and told her , “ I ’ m going to your house. I ’ m coming for you. ” They e xchanged words ; Jolina was angry.

The skaters walk ed toward the community center and Reyes, still holding the knife, followed them

. As t hey walk ed up an alley, the teenage skater who had confronted Reye s walk ed backward to keep an eye on him

. O ther “ kids ” joined the group, and the skater felt some respons ibility to protect them against Reyes. He told Reyes if he dropped the knife, they could fight. Reyes refused, pointing out “ there is a lot of you. ” The skater promised Reyes if they fought without weapons, it would just be the two of them, but he thoug ht Reyes was “ scared. ”5 The skater and other kids circled Reyes , who denied having the knife and started to walk away. The group followed and Reyes b egan to run

. S omeone then
handed the skater a long wooden board , which he carried as he followed Reyes into a n alley. When Reyes reached a dead

- end, the skater told him , “ you are trapped

. T here is nowhere else to go. ” However, Reyes was able to jump over a low wall as the skater swung at his leg with the board ; Reyes fell to the gro und on the other side.

The skater followed Reyes over the wall

. He testified he did not want to leave Reyes alone in their neighborhood with a knife as “ there are always kids running
around. ” The group follow ed Reyes down the street as he walked away. A nother young skater who had joined the group then “ slapped [Reyes] with [his] skateboard, ” “ hit[ting] him pretty hard. ”

As they continued walking, t he first skater learned a female in the crowd was calling the police ; he told her to “ tell the police he had a knife and he hit a girl. ” The
skater was trying to stay close to Jolina because he was scared Reyes was after her. However, Jolina was behind the skater when she picked up a brick , ran forward, and
threw it at Re yes, hitting him in the upper back

. 1 Reyes responded by picking up the brick and throwing it back toward Jolina and the skater , but it hit neither of them

.

At that point, Jolina was still closer to Reyes than anyone else, and he suddenly charged toward her. Reyes grabbed Jolina by her sweatshirt , pulled her toward
hi m and stabbed her. Jolina attempted to fight back and get away, but Reyes would not let go of her.
After Reyes stabbed Jolina, he stared at her for 15 to 20 seconds ; he then walked away toward a nearby apartment complex. Reyes was observed by a police officer in a helicop t er walking with a white shirt over his shoulder. He then entered a

1 A second person picked up another brick at about the same time the victim picked up hers. I t is unclear whether he threw it at Reyes. If he did , there is no evidence Reyes w as aware of it

.6

nearby carport. The helicopter observer notified o fficers on the ground where Reyes was , and he was taken into custody.

When officers searched the carport Reyes was seen entering, they found a
white shirt with what appeared to be blood on it. A resident of the apartment building
later s potted a knife in the swimming pool that had not been there earlier in the day, notified the police , and the weapon was retrieved.

Jolina ’ s stab wounds were fatal. An examination revealed she had been
stabbed four times

— on c e in the right chest, which was the fa tal blow , on c e in the left
back , on c e in the right face and neck, and on c e in the right forearm.

After Reyes was taken to the police station, he initially denied any involvement in the stabbing, claiming he had been suddenly attacked by a group of guys
with “ big old sticks. ” He claimed that because he had nothing but his keys to defend himself with, he ran away to the apartment building where the police later found him. He then changed his story and admitt ed he had a knife that he claimed Jolina had given to
him . He asserted that after he was jumped, he had just stabbed someone in self

- defense , but he did not know who it was because it was dark , and his vision was poor. He claimed he thought the person he stabbed was just “ one of the guys ” in t he group “ trying to kill

me. ” Reyes later conceded he was frustrated at Jolina because of th e way she was acting
and for taking his backpack ; he acknowledged things “ got out of hand. ”

Reyes was charged by information with one count of voluntary manslaughter

. ( Pen

. Code, 2 § 192 , subd. (a)

. ) The information also alleged Reyes personally used a deadly weapon (§ 1192.7) and that he committed the offense during a period he was released on his own recogni z ance on a primary felony (§ 12022.1 , subd. ( b) )

.

2 All further statutory references are to this code unless otherwise designated.7

2. The Defense Evidence on “ Fight or Flight ” Reyes did not testify at trial

. Instead, the defense offered the testimony of
Dr. Scott Fraser , who explained the “ fight or flight ” reaction that occurs “ when there is perceived or actual threat that impinges on us. ”

Fraser explained that when a person is faced with a perceived threat , which
he does not feel capable of thwarting, his first reaction is to flee. However, when flight does not seem possible, either because the re is no escape route available or due to pursuit , he may elect to fight instead.

Fraser also explained that during a fight or flight reaction, the body
redistrib utes its resources, including blood flow, away from the brain to the parts of the body needed to address the danger. That reaction “ compromi se[s] ” the person ’ s ability to evaluate what is happening and make decisions and thus a person under high stress is

“ not capable ” of “ decision

- making with foresight, evaluation, and potential consequences and options. ” He also explained that a person undergoing this reaction has a very limited focus, is unable to evaluate details, and will have a very poor memory of w hat happened.

Fraser stated that while the i ng estion of Xanax would not pr event a person from experiencing a fight or flight reaction, it would likely delay the trigger i n g of that
reaction and have a calming effect. He also agreed that if a person had ingested Xanax, marijuana , and alcohol, the combination could cause a person to perceive a greater danger than an unimpaired person would perceive.

Although Fraser stated he had reviewed the evidence, including variou s video s that captured the series of events leading up to Reyes stabbing of his victim, he did not offer any opinion about whether those circumstances, or Reyes ’ s reaction to them,

w ere consistent with a “ fight or flight ” reaction . Instead, he stated tha t the purpose of his testimony was “ to describe the human alarm reaction pattern. So that the jurors could understand that this is a normal way in which any of us would react under high stress
conditions. ”8 Under cross

- examination, Fraser acknowledged th at if a person who had been knocked down at a skate park were able to walk away, but then doubled back
toward his attackers, that would not be consistent with a “ fight or flight ” reaction. Similarly, if that same person decided to follow his attackers as they walked away, that
would not be consistent with a “ fight or flight ” reaction.
3. Instructing on Involuntary Man slaughter as a Lesser Included Offense Near the conclusion of the trial, t he trial court directed the parties ’ attention

to this court ’ s unpublished decision in People v. Rivera ( Sept. 13, 2019, G055218 ) ( Rivera ) , which had reversed a conviction for voluntary manslaugh t er and remanded the

case for a retrial with directions to also instruct the jury on involuntary manslaughter as a l esser included offense of the original murder charge

. The trial court seemed concerned
th ere could be a similar result in this case and encouraged the parties to co llaborate on
propos ed i nstructions regarding involuntary manslaughter as a lesser included offense of
the charged crim e of voluntary manslaughter.

However, because involu n tary manslaughter is not a lesser included offense of voluntary manslaughter (see, People v. Orr ( 1994 ) 22 Cal.App.4th 780 , 78 4

- 785) , t he parties were unable to agree on appropriate instructions

. Noting that no published case
had viewed involuntary manslaughter as a lesser included offense of voluntary manslaughter, t he trial court indicated it was not inclined to instruct the j ury as though it

were. Reyes ’ s counsel did not disagree with the court ’ s legal point but responded
that she believed t he court could still instruct on involuntary manslaughter and argued the
evidence would support a finding of involuntary manslaughter: “ if the jury were to reject
the lawful self

- defense claim, they may , in light of Dr. Fraser ’ s testimony and all the other facts, view the conduct more consistent with gross negligence

. . . . [¶] . . . They
could have a reaso nable doubt [that] Mr. Reyes . . . was grossly negligent in attempting to protect himself much like they talk about in Rivera. ”9 She also asserted that she had “ indicated early on I was asking for [an involuntary manslaughter instruction]. My understandi ng was the court indicated it was inclined to give it . And I think the People indicated, although they didn ’ t agree with the reasoning of it based on Rivera , that it should be given. ” The court corrected her, however, pointing out that there had been no discussion about an involuntary manslaughter instruction before the court itself had brought up Rivera and suggested involuntary manslaughter might be viewed as a lesser included offense by this court

. The
court then noted Rivera appeared to be distinguishable from this case, given that the charge d crime in Rivera had been murder, rather than voluntary manslaughter.

The court asked the prosecutor to weigh in, and he responded by focusing

on Rivera ’ s potential impact on this case, while ignor ing the suggestion made by defense
counsel that the jury could still be instructed on involuntary manslaughter even if it was
not a lesser included offense . He s tat ed that while he thought Rivera was inconsistent with published case law on lesser included offenses , he had concerns it might indicate
this court would apply “ a similar type of analysis . . . in our case. ” On the o ther hand, the prosecutor believed it was problematic to try to instruct on involuntary manslaughter as a
lesser included offense if it necessitated changing the elements of that crime. H e also
vi ewed th e facts of this case as dis t inguishable from those in Riv e r a , stating it would be “difficult for a reasonable jury to conclude that stabbing somebody four times, twice near the throat . . . is not inherently dangerous to human life

. ”

The prosecutor concluded with this : “ I guess that ’ s my roundabout way of saying I candidly don ’ t know what the appropriate course is in light of Rivera . So, you know, I def

er to the court and the defense on this. Because, ultimately, I don ’ t wan t , if there is a conviction, the thing winding up like Rivera

. [¶] But at the same time, if there
is a con viction, I don ’ t want a challenge to the manner in which the jury was instr ucted on elements that we are mostly making up with respect to invol. And I think we are10

making them up out of

– with some basis in the law consistent with what we think Rivera says, but that ’ s a novel approach. ”

After further discussion about wh at th e proposed “ lesser included ” version of the jury instructions might look like, the court rejec ted the idea of giving them. The

court pointed out that “ [ t ] he Rivera case, when I went back and looked at it, it is clear to
the court . . . that it talks about invol in the context of murder. So that ’ s what was instructed in that case. [¶] So I don ’ t think it applies to . . . this case [which] is charged as a voluntary manslaughter and that ’ s what it is going to go to the jury on with the
standard instruction. ”
4. Closing Argument s , Verdict , and Sentencing In his closing argument, the prosecutor argued Reyes stabbed Jolina out of
anger . He portrayed her decision to throw a brick at his back as the last straw in what
must have felt like an extended campaign by a bunch of kids to taunt and humiliate

— but

not actually injure

— Reyes as they escorted him out of their neighborhood. “ They didn ’ t use the se weapons to try to kill someone or to try to pummel someone. Nobody knows that better than [Reyes]. They used these weapons first to counter him and then, call it what it is, they used them to humiliate him. To slap him when his back was turned. To
f ollow him, to make sure that nobody got hurt. To make sure th at knife he was clutching
didn ’ t wind up killing someone. [¶] Jolina was the last straw. We all understand she
didn ’ t have to throw the brick. . . . [¶] But [Reyes], when he gets hit, he is not reacting because he is scared to death. He is reacting because he is angry as hell. There is a term
for that type of anger and it isn ’ t self defense. It is heat of passion. It is manslaugh t er. ”

Reyes ’ s counsel had a more sinister take on the grou p ’ s conduct. She
claimed the prosecutor “ made a valiant attempt to try to justify or make those skaters ’ actions that night acceptable. But it wasn ’ t. Their action s were not acceptable and their actions led to what happened to Jolina R. that night. ”11 D efense c ounsel a r gued Reyes was not guilty of voluntary manslaughter for two reasons. First, he “ acted in lawful self

- defense ” because a large group of aggressive people was “ chasing him. He acted, reacted to the hit of concrete at his back, the rush of a person behind him. ”

Second, he was not guilty of voluntary manslaughter because he had no specific inten t to kill

. Counsel emphasized the prosecutor had the burden of proving every element of the crime beyond a reasonable doubt , and she concluded the People had
failed to establish that Reyes acted with the requisite intent. “ Miguel Reyes did not have the specific intent to kill Jolina R. And he did not act with deliberate, conscious disregard for human life. Those are all t he elements that the p eople must prove beyond a reasonable doubt. And they have failed to do that. ” Specifically, counsel claimed Reyes
was in “ instinctual mode. He was not thinking. He was not using intent in his
actions

. . . . ” She relied on Fraser ’ s expert testimony ab out the “ fight or flight ” reaction

to argue that “ in that momen t [Reyes] is not weighing possible alternative solutions. ”
Therefore , his decision to stab Jolina was “ not a deliberate, thought

- out, conscious disregard or action. ”

The case w ent to the jury on the charge of voluntary manslaughter . The jury found Reyes guilty of th at charge

. The jury also found true the allegation that he personally used a deadly weapon.

The court sentenced Reyes to 1 2 years, which was comprised of the upper
1 1

- year t erm for voluntary manslaughter, plus an additional year for his use of a deadly
weapon. The court explained its reasons for imposing the upper term, noting that Reyes had an extensive criminal record, beginning as a juvenile. He was “ on two grants of
inf ormal probation when this incident took place. ” Moreover, Reyes ’ s “ prior convictions as an adult or sustained petitions in juvenile delinquency petitions are numerous and in increasing seriousness

. ” The court pointed out Reyes had “ something like five, five prior felonies as well as, you know, seven misdemeanors. The criminal history was12

extensive. ” C iting California Rules of Court, rule 4.412 (b)(2), the court selected the upper term.

DISCUSSION

Reyes first contends his trial counsel was inef fective because she failed to
seek the prosecutor ’s agreement to instruct the jury on involuntary manslaughter as a lesser relate d offense , after the court concluded it w oul d not instruct on it as a lesser
included offense. “ ‘ To establish ineffective assi stance, defendant bears the burden of showing, first, that counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel ’ s error, it is reasonably probable that the verdict
would have been more favorable to him

. ’ ” ( People v. Hernandez (2004) 33 Cal.4th 1040,
1052

– 1053.)
W e need not address the question of deficien t performance because we conclude Reyes has failed to demonstrate a reasonable probability that soliciting the prosecutor’s agreement would have produced a more favorable verdict.
1. Background Law Murder is an unlawful killing done with malice aforethought. (§ 187 , subd. (a) .) “ [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)(1) .) Malice is implied when the defendant engages in conduct dangerous to h uman life, “‘ knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life. ’” ( People v. Bryant (2013) 56 Cal.4th 959, 965 ( Bryant ). )

“ A defendant commits voluntary manslaughter when a homicide that is
committed e ither with intent to kill or with conscious disregard for life

— and therefore would normally constitute murder

— is nevertheless reduced or mitigated to13

manslaughter. ” ( Bryant, supra , 56 Cal.4th at p. 968; see also People v. Milward (2011) 52 Cal.4th 580, 58 7 ( Milward ) [malice is “ negated ” ].) And malice is mitigated or negated “ when the defendant kills as a result of provocation or in ‘ imperfect
self

- defense. ’” ( Milward, supra , at p. 587; see § 192, subd. (a); see also Bryant , supra,
at p. 969 [referring to provocation as “ sudden quarrel or heat of passion ” ].)

Involuntary manslaughter, by contrast, is the unlawful killing of a human being without malice, either express or implied. (§ 192; People v. Brothers (2015)
236 Cal.App.4th 24, 31 ( Brothe rs ).)

Both voluntary manslaughter and involuntary manslaugh t er are lesser
included offenses of the crime of murder ( People v Rios (2000) 23 Cal.4th 450, 460 [“ California statutes have long separated criminal homicide into two classes, the greater
offense of murder and the lesser included offense of manslaughter ”]) , but as to each other, “ [t] hey are merely siblings who have a common parent. ” ( People v. Orr, supra , 22 Cal.App.4th at p. 785 .)

The trial court has a sua sponte duty to not only instruct the jury on the crime charged, but also on any lesser included offenses “ whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. ” ( People v. Breverman (1998) 19 Cal.4th 1 42, 162 .) T he court has no corresponding duty to instruct on lesser related (i.e., “ sibling ”) offenses

. Indeed, the court cannot instruct on such offenses unless t he prosecutor agrees because it is the province of the prosecutor to decide which separate offenses are charged. ( People

v . Birks (1998) 19 Cal

. 4th. 108, 13 4

- 13 5, fn. 18. )
2. Whether T

here was Ineffective Assistance in This Case Recognizing that the court could not instruct on involuntary manslaughter as a lesser related offense without the prosecutor’s agreement, Reyes claims his trial counsel was ineffective for failing to ask for that agreement. He presumes the prosecutor
woul d have agreed, based on his stated willingnes s to acquiesce if both the defense and14

the trial court believed it was appropriate to instruct on involuntary manslaughter as a
lesser inclu d ed offense. We d is agree

.

If the trial court had ultimately concluded t hat involuntary manslaughter
should be treated as a lesser included offense based on the unpublished Rivera opinion , i t would likely have determined it had a sua sponte duty to instruct on th at crime whether or not the prosecutor agreed. The pr osecutor seemingly understood that . The prosecutor
nonetheless made clear he did not think the facts of this case fit an involuntary manslaughter charge

. Once th e “lesser included” question was resolved , t he prosecutor showed no interest in an involuntar y manslaughter instruction

.

In deed, the prosecutor presumably was aware he could avoid whatever

unc ertainty was created by the Rivera opinion by agreeing to instruct on involuntary manslaugh t er as a stand

- alone offense. But the prosecutor never suggest ed doing so , indicating he was not amenable to that option. W e consequently reject Reyes’ s suggestion that if his trial counsel had solicited the prosecutor’s agreement to an
instruction on involun tary manslaughter as a separa te offense, the prosecutor would have acquiesced

. In any event, w e conclude Reyes has not established a reasonabl e probability that, if the involuntary manslaughter instruction had been given , the verdict
would have been more favorable to him. According to Reyes, the evidence in this case was consistent with involuntary manslaughter because “ [g] iven the heated atmosphere surrounding the fatal incident

— app ellant, high on Xanax and being hit and chased by a
mob armed with potentially deadly weapons

— a jury readily could have found that [he] acted unthinkingly, without an intent to kill and without a conscious disregard for life. It could have found his conduct as merely assaultive. In such a circumstance, he could be convicted of involuntary manslaughter i n the commission of an inherently dangerous assaultive felony. ” But that is the exact argument Reyes made to the jury. Had the jury found it persuasive, it would have acquit ted him of the voluntary manslaughter charge.15 As defense counsel pointed out in her closing argument, t he jury was instructed that the prosecutor had the burden of proving every element of that offense

— including that Reyes acted with the requisite consciou s intent when he stabbed Jolina

— and that if all of those elements were not proved, its duty was to acquit Reyes of voluntary manslaughter

. We must presume the jury followed th ose instructions

. ( People v. Sanchez ( 2001) 26 Cal.4th 834, 852.)

T his record does not support the conclusion that it is reasonably probable the jury would have convicted Reyes of involuntary manslaughter, rather than voluntary manslaughter, if given that option. W hat it does demonstrate is that the jury did not view Reyes’ s assertion that he lacked any intent to kill as pe rsuasive enough to raise a reasonable doubt

. There is no reason to conclude the jury would have viewed that same
evidence in a differen t light if it had been instructed on involuntary manslaughter.
3. Sen tencing Reyes to Upper Term Reyes also contends the trial court abused its discretion by sentencing him to the upper term for voluntary manslaughter because the aggravating factor relied upon by the court “ does not outweigh the mitigating factors. ”

How ever, as the Attorney General argues , such a cla i m is waived if it is not rais ed in the trial court when the sentence is imposed. In Pe ople v. Scott (1994) 9 Cal.4th 331, 353 ( Scott ) , our Supreme Court held the waiver doctrine applies to claims wherein
the trial court “ purportedly erred because it double

- counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number
of valid reasons

. ” ( Scott at p. 353

. )

As the Supreme Court explained, “ the purpose for requiring the court to orally announce its reasons at sentencing is clear. The requirement encourages the careful
exercise of discretion and decreases the risk of error. In the event ambiguities, errors, or omissions appear in the court ’ s reasoning, the parties can seek an immediate clarification16

or change. ” ( Scott , supra , 9 Cal.4th at p. 351.) The time for a party to seek such a
clarification or change is when the court explains the reasons for its sentencing decision.

Reyes claims he prese r ved the issue below by arguing for a lesser term
before t he court announced its decision and gave its reasons . We are not persuaded

. His arguments were made before the court announced its sentencing decision . This cannot be construed as an objection to the way in which the court weighed the competing sentencing factors.

But even if the issue were not waived, we would not find any abu s e of
discretion. “ Gen erally, determination of the appropriate term is within the trial court ’ s broad discretion [citation] and must be affirmed unless there is a clear showing the sentence choice was arbitrary or irrational [citation]. ‘ Sentencing courts have wide
discretion i n weighing aggravating and mitigating factors [citations], and may balance them against each other in qualitative as well as quantitative terms. ’ [Citation.] One factor alone may warrant imposition of the upper term [citation] and the trial court need

not state reasons for minimizing or disregarding circumstances in mitigation [citation]. ” ( People v. Lamb (1988) 206 Cal.App.3d 397, 401.)

A court ’ s sentencing decision will not be disturbed on appeal unless appellant can show that the sentencing decision “ is so irrational or arbitrary that no reasonable person could agree with it. ” ( People v. Carmony (2004) 33 Cal.4th 367, 37 7 .)
T he fact that other courts m ight have weighed the aggravating and mitigating factors differently, and perhaps could have sentenced Reyes to a lesser term , does not establish

t h at this court ’ s view of those factors was a rbitrary or irrational. Different c ourts can, and do , view the same sentencing factors in different ways . Reyes points to no cases finding an abuse of discretion u n der circumstances similar to these. Likewise, we have
found none

.17 DISPOSITION The judgment is affirmed.

GOETHALS, J.

WE CONCUR:

O’LEARY, P. J.

FYBEL, J.