People v. Balbuena CA2/6

Opinion

Filed 9/14/26 P. v. Balbuena CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B334982 (Super. Ct. No. 2020006946) Plaintiff and Respondent, (Ventura County)

v.

EUREN BALBUENA,

Defendant and Appellant.

Euren Balbuena appeals the judgment entered after a jury convicted him of three offenses: (1) first degree murder, i.e., murder with deliberation and premeditation (Pen. Code, §§ 187, subd. (a), 189, subd. (a)),1 (2) assault with a deadly weapon (ADW, § 245, subd. (a)(1)), and (3) misdemeanor battery upon a cohabitant (§ 243, subd. (e)(1)). As to the murder, the jury found true an allegation that appellant had used a deadly weapon – a knife (§ 12022, subd. (b)(1)). As to the ADW, the jury found true an allegation that appellant had inflicted great bodily injury (§ 1 All statutory references are to the Penal Code. 12022.7, subd. (a)). The jury acquitted appellant of attempted murder and attempted voluntary manslaughter. For the ADW, appellant was sentenced to prison for the upper term of four years plus three years for the great-bodily- injury allegation. For the murder, the trial court imposed a consecutive sentence of 25 years to life plus one year for the deadly weapon enhancement. For the misdemeanor battery, the court imposed a one-year term and ordered it to run concurrently with the other sentences. Thus, appellant’s aggregate sentence was 33 years to life. Appellant contends: (1) the trial court erroneously denied his request to instruct on heat-of-passion voluntary manslaughter as a lesser included offense of murder, (2) the prosecutor committed misconduct during her cross-examination of him, and (3) the trial court erroneously sentenced him to the four-year upper term for the ADW. Only the third contention has merit. We vacate the sentence and remand the matter for a full resentencing as to all counts. In all other respects, we affirm. Facts2 Prosecution’s Evidence Appellant and his girlfriend, Zaira Patino Trejo (Patino), had a turbulent relationship marked by appellant’s abusive conduct. They were living together in Patino’s apartment. Patino was 31 years old and four feet, 10 inches tall. Appellant was 29 years old and six feet tall.

2 We omit the facts concerning the conviction of misdemeanor battery upon a cohabitant in violation of section 243, subdivision (e)(1). The battery was committed approximately two months before the other offenses.

2 Appellant left the apartment during the evening on February 26, 2020. While he was away, Patino texted him: “ ‘We can’t live together anymore. Please figure out what you want to do. I’m done trying and I'm done fighting. Please don’t talk to me.’ ” “ ‘When you are ready to get your stuff let me know so I can make sure my mom is here to make sure you don’t hurt me.’ ” “ ‘You are not welcome here and if you break the door again I’m calling the cops.’ ” At approximately 4:10 a.m. the following morning, Patino allowed appellant to reenter the apartment. In a 6:30 a.m. profanity-laden diatribe, appellant berated Patino for leaving the apartment to throw out the trash. Patino’s cellphone recorded the conversation. Patino asked appellant to “leave” and three times said, “Get away from me.” After the last “Get away from me,” appellant grabbed Patino’s cell phone and said, “You’re recording me, right?” Patino replied, “Stop.” At that point, the recording ended. Patino’s mother, Ariadna Avetisyan, was concerned about her daughter’s safety. In the morning on February 27, 2020, she drove to Patino’s apartment and rang the doorbell. Someone opened the door. Appellant and Patino were standing in the doorway. Avetisyan testified: Patino “only had a [white] towel wrapped around her.” There was “a lot of blood on the towel.” “[Patino] was beaten up. He beat her up.” She was “bleeding from her head,” and “the blood was all over her legs.” “[H]er eye was already closed. It was really swollen. It looked purple, red.” A Ring security camera recorded the conversation at the doorway. Avetisyan said to appellant, “You’re gonna go to jail right now.” “I don’t give a fuck what you say.” “You better get out, Euren.” Patino warned, “Mom, get out, get out, get out.”

3 The recording captured audio of “struggle sounds,” “yelling,” and “crashing sounds.” Patino screamed, and the recording ended. Avetisyan testified: she tried to take Patino out of the doorway. Appellant started hitting Avetisyan and Patino. He dragged Patino by the hair into the kitchen. “He was always hitting her. He was hitting her the whole time.” While in the kitchen, appellant grabbed a knife and stabbed Avetisyan in the forehead. He then repeatedly stabbed Patino, who was on the floor. Avetisyan ran out of the apartment because she feared that appellant was going to stab her. She asked the driver of a vehicle to call 911. In response to the 911 call, police officers entered the apartment. They found Patino’s body on the floor in the kitchen. Numerous knives were scattered on the kitchen floor and counters. Some of the knife blades were bloody and bent. The handles on some of the knives “were separated from the blades.” The doctor who performed an autopsy on Patino’s body testified that she had been stabbed 33 times. “[T]he majority of [the stab wounds] were in the chest. They were also throughout her arms and some on the face and neck.” In addition to the stab wounds, Patino had sustained “62 incised [knife] wounds.” An incised wound “is more shallow [than a stab wound] so the depth is less than how long it is on the skin.” Patino “had blunt force injuries . . . throughout her face, her head, scalp region” and “throughout the arms and . . . the legs . . . .” Her nose and three ribs had been fractured. She had “defensive-type injuries” on her hands and arms. The doctor “determined the cause of death to be multiple sharp force injuries.” Avetisyan sustained three lacerations to her face and scalp. “ ‘The largest laceration was 8 centimeters extending vertically 4 from her forehead to the area in between her eyebrows . . . .’ ” A nerve had been cut. A doctor “ ‘surgically repaired [the] largest laceration which went through all three layers of her forehead to the bone.’ ” Appellant’s Trial Testimony Appellant testified: about 6:30 a.m. on February 27, 2020, he and Patino argued about the trash. Appellant “was intoxicated.” He became “upset” when he realized that Patino was recording the argument. They continued to argue about other matters. Patino threw a vase at him. It cut his leg “multiple times. And then she charged at [him], punched [him] a few times, and then [he] punched her back” in her eye and nose. After the fight, they “apologized to each other.” Later that morning, appellant and Patino argued about “[appellant’s] cheating, being with another woman that night.” There was no violence during this argument. When Avetisyan arrived at the front door, appellant opened it. He testified: “I just remember seeing [Avetisyan’s] face. Her eyes were just popping out. She was just angry and she just came straight towards me. She charged me. And I remember just telling her like, Madre, Mom, stop, and she didn't stop. She just came straight towards me and was just punching me. Just hitting me with her purse.” Avetisyan hit appellant in the face with a closed fist. “She wouldn't stop. And at that point we are like struggling. . . . I remember just trying to kind of push her off of me. . . . And when that happened, [Patino] then started attacking me as well.” “She started punching me on the side of the face.” Avetisyan hit appellant in the back of the head with a steel chair.

5 Appellant continued: “[Avetisyan] looks at me and she looks at the knife block. That’s when I seen her [] reach for the knife and swing it at me. And that's when I stopped her. Like halfway through her getting me, I stop her. . . . But in the middle of me disarming her, I cut her on the face and that’s when I cut the side of my hand.” When asked what he was thinking when Avetisyan swung the knife at him, appellant replied: “I’m scared. I knew she was going to kill me. She was trying to take my life at that point.” Avetisyan ran out of the apartment. Patino stabbed appellant in the side with a knife. Appellant testified: “[A]fter that it was just a fight or flight. I’m fighting for my life at this point.” “She is coming at me. She stabs me. I’m scared.” Appellant stabbed Patino with a knife because he “was trying to fight for [his] life.” “[S]he tried to kill me.” Appellant repeatedly insisted that he had stabbed Patino “[i]n defense.” He did not remember how many times he had stabbed her. On cross-examination, the prosecutor asked, “You stabbed [Patino] because you were angry; correct?” Appellant answered, “That’s not true.” Jury Instructions The trial court instructed the jury on perfect self-defense, voluntary manslaughter based on imperfect self-defense, excusable homicide committed by accident, and involuntary manslaughter based on criminal negligence. The jury was also instructed that “[p]rovocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter.” In addition, the jury was instructed on voluntary intoxication as a factor in determining whether appellant had 6 acted with the intent to kill or with deliberation and premeditation. The Trial Court Did Not Err in Refusing to Instruct on Heat-of-Passion Voluntary Manslaughter Appellant contends the trial court erroneously denied his request to give CALCRIM No. 570 on “voluntary manslaughter heat of passion” as a lesser included offense of murder. The court stated, “[T]here’s simply no evidence of heat of passion. So I am not going to give 570.” “ ‘[A] trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present.’ [Citation.] Conversely, even on request, a trial judge has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction. [Citation.] ‘ “Substantial evidence is evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find persuasive.” . . .’ ” (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) “ ‘ “[T]he factor which distinguishes the ‘heat of passion’ form of voluntary manslaughter from murder is provocation.” ’ [Citation.] ‘To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react, without reflection. . . . [T]he anger or other passion must be so strong that the defendant's reaction bypassed his thought process to such an extent that judgment could not and did not intervene.’ ” (People v. Rangel (2016) 62 Cal.4th 1192, 1225 (Rangel).) “[N]o principle of law required the trial judge below to disregard the evidence in order to find that the jury should 7 consider whether [appellant] subjectively killed in the heat of passion, when . . . the evidence actually introduced on the point— [appellant’s] own testimony—was to the contrary.” (People v. Moye (2009) 47 Cal.4th 537, 554 (Moye).) Appellant “testified he acted deliberately in seeking to defend himself” from Patino’s attack. (Id., at p. 555.) He insisted that he had acted in self- defense and was not angry at Patino. “[T]here was . . . no direct testimonial evidence from [appellant] himself to support an inference that he subjectively harbored such strong passion, or acted rashly or impulsively while under its influence for reasons unrelated to his perceived need for self-defense.” (Id., at p. 557.) In any event, the trial court's refusal to instruct on heat of passion voluntary manslaughter was harmless beyond a reasonable doubt. “Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions.” (People v. Koontz (2002) 27 Cal.4th 1041, 1085-1086.) The jury found that appellant’s murder of Patino was willful, deliberate, and premeditated. In so finding, the jury necessarily rejected the theory that appellant’s “ ‘anger or other passion [was] so strong that [his] reaction bypassed his thought process to such an extent that judgment could not and did not intervene.’ ” (Rangel, supra, 62 Cal.4th at p. 1225.) He did not “ ‘simply react, without reflection. . . .’ ” (Ibid.) “Once the jury rejected [appellant’s] claims of reasonable and imperfect self-defense, there was little if any independent evidence remaining to support his further claim that he killed in the heat of passion . . . .” (Moye, supra, 47 Cal.4th at p. 557; see also People v. Wharton (1991) 53 Cal.3d 522, 572 [the “state of 8 mind [required for first degree murder], involving planning and deliberate action, is manifestly inconsistent with having acted under the heat of passion”]; People v. Peau (2015) 236 Cal.App.4th 823, 830 [“The Attorney General argues that Peau's conviction of first degree murder renders any failure to give a heat-of-passion instruction harmless because the jury necessarily found that the murder was willful, deliberate, and premeditated. We agree”].) Appellant Forfeited Claim that the Prosecutor Committed Misconduct During Her Cross-Examination of Him Appellant contends that, during cross-examination, the prosecutor committed misconduct because of her improper “argumentative questioning” of appellant and her comments “disparaging” him. The misconduct “violat[ed] appellant’s constitutional right to a fair trial.” “ ‘A prosecutor commits misconduct when his or her conduct either infects the trial with such unfairness as to render the subsequent conviction a denial of due process, or involves deceptive or reprehensible methods employed to persuade the trier of fact.’ [Citation.] ‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion — and on the same ground — the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’ ” (People v. Silveria and Travis (2020) 10 Cal.5th 195, 306 (Silveria).) Appellant argues, “Here, the prosecutor rolling her eyes, saying ‘of course you don't’ [remember] and yelling at appellant was demeaning. [Record citation.] The impression the jury would have had was that the prosecutor believed appellant was so lacking in believability, his testimony ridiculous, that no 9 reasonable juror should consider it.” These claims of misconduct are forfeited because appellant has not shown that he timely objected to the alleged improprieties and requested that the jury be admonished to disregard them. (Silveria, supra, 10 Cal.5th at p. 306.) The defense rested on November 8, 2023. Defense counsel did not object until November 13, 2023, when she moved for a mistrial during the People’s rebuttal.3 During the prosecutor’s cross-examination of appellant, defense counsel timely objected to certain allegedly improper questions on the ground that they were “argumentative” and “assume[d] facts not in evidence.” But counsel did not make a timely assignment of misconduct. Nor did she request “ ‘that the jury be admonished to disregard the impropriety.’ ” (Silveria, supra, 10 Cal.5th at p. 306.) “ ‘To preserve for appeal a claim of prosecutorial misconduct, the defense must . . . request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.’ ” (People v. Earp (1999) 20 Cal.4th 826, 858.) In his reply brief appellant 3 Defense counsel stated: “I’m making a motion for a mistrial. I’m going to note I think there’s a pattern of prosecutorial error in this case. When [appellant] was testifying, the People chose to make a series of argumentative statements as well as comments to the jury including something along the lines of when my client testified that he didn’t remember something saying ‘of course you don’t’ and eye rolling as well as asking argumentative questions and frankly just yelling at him. [¶] . . . I didn’t make a motion for a mistrial at that time or object to every single instance because strategically I actually thought that it just made the prosecution look bad. I didn’t think that it was necessarily harming the defense’s case.”

10 offers the following explanation for not requesting an admonition: “The court sustained many of the objections asserted by counsel. Asking also for an admonition would only have focused the jury’s attention on the prosecutor belittling appellant. It would not have served to deter the prosecutor as she persisted in engaging in improper conduct.” These conclusionary assertions are insufficient to show that an appropriate “ ‘admonition would not have cured the harm [allegedly] caused by the [claimed] misconduct.’ ” (Ibid.) Accordingly, “[a]bsent an objection and request for admonition, [appellant] has forfeited [his] misconduct claim. Moreover, in view of the overwhelming evidence of [appellant’s] guilt, any error in the prosecutor's question[s] was harmless [beyond a reasonable doubt].” (People v. Collins (2010) 49 Cal.4th 175, 207.) It is undisputed that appellant inflicted 95 knife wounds upon Patino’s body, caused “blunt force injuries . . . throughout her face, her head, scalp region” and “throughout the arms and . . . the legs . . . . ,” and fractured her nose and three ribs. As to Patino’s mother, the lack of prejudice is confirmed by the jury’s acquittal of appellant on the attempted murder and attempted voluntary manslaughter charges. As to ADW Sentence, Appellant Was Denied Right to Jury Trial on Aggravating Facts Appellant was sentenced in January 2024. Effective January 1, 2022, Senate Bill No. 567 (S.B. 567, 2021–2022 Reg. Sess.) “amended Penal Code section 1170, subdivision (b)(2) . . . to provide that, when a statute specifies three possible terms of imprisonment, the trial court cannot impose a sentence exceeding the middle term unless it finds that a longer sentence is justified by ‘circumstances in aggravation of the crime’ and ‘the facts 11 underlying those circumstances’ have been stipulated to by the defendant or have been found true beyond a reasonable doubt by the jury at trial.” (Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 70.) Appellant contends the trial court erroneously sentenced him to the upper term of four years for the ADW because he did not stipulate to the aggravating facts considered by the court and the jury did not find them true. The People concede that the trial court erred. But they argue that the error “was harmless because ‘no reasonable jury would have found in favor of the defendant on the [aggravating] fact[s], given the jury’s actual verdict and the state of the evidence[.]’ [Citation.]” “[A] defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements . . . .” (People v. Wiley (2025) 17 Cal.5th 1069, 1086 (Wiley).) “When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. (. . . Chapman v. California (1967) 386 U.S. 18 . . . .) Under that standard, ‘a sentence imposed under . . . section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.’ [Citations.] Lack of a jury trial is not harmless under Chapman if ‘the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue.” (Id., at p. 1087, italics added.)

12 As an aggravating factor, the trial court cited rule 4.421(b)(2) of the California Rules of Court, which provides, “The defendant’s prior convictions . . . are numerous or of increasing seriousness.”4 The court declared: “The defendant’s prior convictions are numerous. They are not, but they are of increasing seriousness. [Patino] unfortunately is not the only woman that’s been subject to violence from the defendant. There was someone else in 2015 that was stipulated to at the trial . . . . [¶] In addition to that, . . . it does seem that there were ongoing control issues and instances where the police could have been called, but were not. So I do think that from a standpoint of increasing seriousness, that’s present as an aggravating factor. That’s 4.421(b)(2).”5 “[T]he determination that a defendant’s prior convictions are of increasing seriousness . . . requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness.” (Wiley, supra, 17 Cal.5th at p. 1082.) Appellant “was entitled to have a jury determine whether his prior convictions were of increasing seriousness . . . before the court could rely on [this] aggravating fact[] to find justification for an upper term sentence.” (Id., at p. 1085.)

4 All citations to rules are to the California Rules of Court.

5 The court apparently relied on the probation report, which specified the following aggravating factor: “The defendant’s prior convictions and/or sustained petitions [in juvenile proceedings] are numerous or of increasing seriousness and he had one prior misdemeanor domestic violence conviction on another victim in 2015. (Rule 4.421b2).” The probation report did not say whether appellant has a juvenile record.

13 Appellant had only one prior conviction – a 2015 misdemeanor conviction of inflicting corporal injury upon a woman with whom he had a dating relationship in violation of section 273.5, subdivisions (a) and (b)(3). A rational juror could not conclude that this sole prior conviction satisfied the aggravating factor that “[t]he defendant’s prior convictions . . . are . . . of increasing seriousness.” (Rule 4.421(b)(2).) “Applying [the Chapman] standard [of review], we conclude that failure to afford [appellant] a jury trial on whether his prior convictions were of ‘increasing seriousness’ [citation] was prejudicial.” (Wiley, supra, 17 Cal.5th at p. 1087; see also People v. Lynch (2024) 16 Cal.5th 730, 776 [“Because we cannot find the omission of a jury trial harmless beyond a reasonable doubt as to every aggravating fact relied upon by the trial court to impose an upper term, Lynch's sentence must be reversed”].) Accordingly, the four-year upper term imposed for the ADW conviction must be reversed. Appellant is entitled to a full resentencing on all counts. “We have held that when part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893.) Disposition The sentence is vacated, and the matter is remanded to the trial court for a full resentencing as to all counts consistent with the views expressed in this opinion. In all other respects, the judgment is affirmed. After the resentencing, the trial court shall send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

14 NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

CODY, P. J.

BALTODANO, J.

15 Anthony J. Sabo, Judge Superior Court County of Ventura ______________________________ Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Snr. Assistant Attorney General, Idan Ivri, Supervising Deputy Attorney General, Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.