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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

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 manslaughter 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 acting aggressively toward the 

victim and her friends and had taken her knife. The victim threw a brick at Reyes as he 

walked 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 prosecutor agree to instruct the jury on 

involuntary manslaughter as a lesser related offense. In making this argument, Reyes 

assumes the prosecutor would have agreed to the lesser related instruction if asked. The 

record does not support that assumption. 

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

to instruct the jury on involuntary manslaughter as a lesser included offense of voluntary 

manslaughter, but only because he had initially misread an unpublished decision of this 

court; he was seemingly concerned that if the jury were not given the lesser included 

instruction, this court’s apparently unique perspective, as evidenced by that unpublished 

opinion, might prompt reversal of a conviction for voluntary manslaughter. 

The prosecutor gave no indication he was interested in adding involuntary 

manslaughter as a lesser related charge when defense counsel suggested the possibility. 

Instead, the prosecutor made clear he did not believe the facts of the case were consistent 

with a charge of involuntary manslaughter. Thus, when the misunderstanding 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, which appeared to demonstrate a conscious 

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. He 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 already 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 this 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 not 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 marijuana. Reyes and 17-year-old Jolina

had also ingested 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, as the males were walking away, Reyes tried to sell them marijuana.
4

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

When Reyes started to walk away, Jolina asked for her knife back. Reyes replied he 

would return it when Jolina was sober. She responded with anger and the two 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 youngest of them, who was 16. She hit him; he hit her back. Her older 

sister—the one who had taken the backpack—joined in and the three of them started 

fighting. When the fight ended, the females walked 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 punched Reyes, 

dropping him to the ground. Other skaters, as well as 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 would not give it to him. As Reyes walked 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 exchanged words; Jolina was angry. 

The skaters walked toward the community center and Reyes, still holding 

the knife, followed them. As they walked up an alley, the teenage skater who had 

confronted Reyes walked backward to keep an eye on him. Other “kids” joined the 

group, and the skater felt some responsibility 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 thought 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 began to run. Someone then 

handed the skater a long wooden board, which he carried as he followed Reyes into an

alley. When Reyes reached a dead-end, the skater told him, “you are trapped. There 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 ground 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 followed Reyes down the street as he walked away. Another young 

skater who had joined the group then “slapped [Reyes] with [his] skateboard,” “hit[ting] 

him pretty hard.”

As they continued walking, the 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 Reyes, 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 

him 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 helicopter 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. It is unclear whether he threw it at Reyes. If he did, there is no evidence 

Reyes was aware of it.
6

nearby carport. The helicopter observer notified officers 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 spotted 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—once in the right chest, which was the fatal blow, once in the left 

back, once in the right face and neck, and once 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 admitted 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 the group “trying to kill 

me.” Reyes later conceded he was frustrated at Jolina because of the 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 recognizance 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 there 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 

redistributes its resources, including blood flow, away from the brain to the parts of the 

body needed to address the danger. That reaction “compromise[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 what happened.

Fraser stated that while the ingestion of Xanax would not prevent a person 

from experiencing a fight or flight reaction, it would likely delay the triggering 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 various 

videos 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, 

were consistent with a “fight or flight” reaction. Instead, he stated that 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 that 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 Manslaughter as a Lesser Included Offense

Near the conclusion of the trial, the 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 manslaughter and remanded the 

case for a retrial with directions to also instruct the jury on involuntary manslaughter as a 

lesser included offense of the original murder charge. The trial court seemed concerned 

there could be a similar result in this case and encouraged the parties to collaborate on 

proposed instructions regarding involuntary manslaughter as a lesser included offense of 

the charged crime of voluntary manslaughter. 

However, because involuntary manslaughter is not a lesser included offense 

of voluntary manslaughter (see, People v. Orr (1994) 22 Cal.App.4th 780, 784-785), the

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, the trial court indicated it was not inclined to instruct the jury as though it 

were. 

Reyes’s counsel did not disagree with the court’s legal point but responded 

that she believed the 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 reasonable 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 understanding 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

charged 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 ignoring 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 stated 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 other 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. He also 

viewed the facts of this case as distinguishable from those in Rivera, 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 defer to the court and the defense on this. Because, ultimately, I don’t want, if 

there is a conviction, the thing winding up like Rivera. [¶] But at the same time, if there 

is a conviction, I don’t want a challenge to the manner in which the jury was instructed 

on elements that we are mostly making up with respect to invol. And I think we are 
10

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 what the proposed “lesser included” version 

of the jury instructions might look like, the court rejected 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 Arguments, 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 these 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 

follow him, to make sure that nobody got hurt. To make sure that 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 manslaughter.”

Reyes’s counsel had a more sinister take on the group’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 actions were not acceptable and their 

actions led to what happened to Jolina R. that night.”
11

Defense counsel argued 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 intent 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 the elements that the people 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 about the “fight or flight” reaction 

to argue that “in that moment [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 went to the jury on the charge of voluntary manslaughter. The 

jury found Reyes guilty of that charge. The jury also found true the allegation that he 

personally used a deadly weapon. 

The court sentenced Reyes to 12 years, which was comprised of the upper

11-year term 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 

informal 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 was 
12

extensive.” Citing California Rules of Court, rule 4.412 (b)(2), the court selected the 

upper term. 

DISCUSSION

Reyes first contends his trial counsel was ineffective because she failed to 

seek the prosecutor’s agreement to instruct the jury on involuntary manslaughter as a 

lesser related offense, after the court concluded it would not instruct on it as a lesser 

included offense. “‘To establish ineffective assistance, 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.)

We need not address the question of deficient 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 human 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 either with intent to kill or with conscious disregard for life—and therefore 

would normally constitute murder—is nevertheless reduced or mitigated to 
13

manslaughter.” (Bryant, supra, 56 Cal.4th at p. 968; see also People v. Milward (2011) 

52 Cal.4th 580, 587 (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 (Brothers).)

Both voluntary manslaughter and involuntary manslaughter 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 142, 162.) The 

court has no corresponding duty to instruct on lesser related (i.e., “sibling”) offenses. 

Indeed, the court cannot instruct on such offenses unless the 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, 134-135, fn. 18.)

2. Whether There 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 

would have agreed, based on his stated willingness to acquiesce if both the defense and 
14

the trial court believed it was appropriate to instruct on involuntary manslaughter as a 

lesser included offense. We disagree.

If the trial court had ultimately concluded that involuntary manslaughter 

should be treated as a lesser included offense based on the unpublished Rivera opinion, it 

would likely have determined it had a sua sponte duty to instruct on that crime whether or 

not the prosecutor agreed. The prosecutor seemingly understood that. The prosecutor 

nonetheless made clear he did not think the facts of this case fit an involuntary 

manslaughter charge. Once the “lesser included” question was resolved, the prosecutor 

showed no interest in an involuntary manslaughter instruction.

Indeed, the prosecutor presumably was aware he could avoid whatever 

uncertainty was created by the Rivera opinion by agreeing to instruct on involuntary 

manslaughter as a stand-alone offense. But the prosecutor never suggested doing so,

indicating he was not amenable to that option. We consequently reject Reyes’s

suggestion that if his trial counsel had solicited the prosecutor’s agreement to an 

instruction on involuntary manslaughter as a separate offense, the prosecutor would have 

acquiesced. 

In any event, we conclude Reyes has not established a reasonable

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—appellant, 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 in 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 acquitted him of the voluntary manslaughter charge. 
15

As defense counsel pointed out in her closing argument, the jury was 

instructed that the prosecutor had the burden of proving every element of that offense—

including that Reyes acted with the requisite conscious 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 those instructions. (People 

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

This 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. What it does demonstrate is that the jury did not view

Reyes’s assertion that he lacked any intent to kill as persuasive enough to raise a 

reasonable doubt. There is no reason to conclude the jury would have viewed that same 

evidence in a different light if it had been instructed on involuntary manslaughter. 

3. Sentencing 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.”

However, as the Attorney General argues, such a claim is waived if it is not 

raised in the trial court when the sentence is imposed. In People 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 clarification 
16

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 preserved the issue below by arguing for a lesser term

before the 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 abuse of 

discretion. “Generally, 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 in 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, 377.) 

The fact that other courts might have weighed the aggravating and mitigating factors 

differently, and perhaps could have sentenced Reyes to a lesser term, does not establish 

that this court’s view of those factors was arbitrary or irrational. Different courts can, 

and do, view the same sentencing factors in different ways. Reyes points to no cases 

finding an abuse of discretion under 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.