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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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.

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 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.”

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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.

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 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.)

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 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.

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 NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

CODY, P. J.

BALTODANO, J.

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 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.