People v. Solorio CA4/1

Filed 3/5/24 P. v. Solorio CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D080839

Plaintiff and Respondent,

v. (Super. Ct. No. F105120)

JOSE A. SOLORIO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Joan P. Weber, Judge. Affirmed in part; reversed and remanded in part with
instructions.
Stephen M. Vasil, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
A. Natasha Cortina and Melissa Mandel, Deputy Attorneys General, for
Plaintiff and Respondent.
Jose A. Solorio appeals from a judgment following his convictions on
two counts of second degree murder. He argues the convictions should be
reversed because the trial court prejudicially erred in not instructing the jury
on the lesser included offense of voluntary manslaughter in the heat of
passion. He also argues his sentence should be modified because the trial
court erred in two additional ways: (1) by not including presentence conduct
credits in its award of presentence custody credits; and (2) by imposing a
parole revocation restitution fine. The Attorney General concedes the
sentencing arguments, but contends an instruction on the lesser included
offense was not warranted because heat of passion manslaughter was not
supported by substantial evidence. We agree with the Attorney General.
Hence we affirm the convictions and remand the matter to the trial court to
correct the sentence.
I.
FACTUAL AND PROCEDURAL BACKGROUND
This case turns on events that occurred one summer evening, more
than 36 years ago in 1987. Late that evening, 27-year-old Jose Solorio
returned to a home in Ramona where, hours earlier, he had gathered with
others to celebrate the birthday of a four-year-old child. Upon arrival, Solorio
exited his car, climbed a flight of stairs, and stepped into a room in which
partygoers were still gathered. Moments later, he fired three bullets from a
handgun. One bullet pierced the heart of the birthday girl’s father, German
Aviles. Another pierced the heart of her cousin, Ventura Aviles. And the
third lodged in the chest of another cousin, Carlos Holguin.
As Solorio fled the residence, he chanced upon the birthday girl’s uncle,
Jose Aviles. A scuffle ensued, in which two more bullets were fired from

Solorio’s gun. Each bullet entered Jose’s1 thigh; and one traveled through
his intestines, lodging near his spine.

1 Because several of the family members share the same last name, we
refer to each of them by first name. We do so for the sake of clarity,
intending no disrespect.

2
 German and Ventura died that evening. Jose and Carlos survived.
And Solorio fled into the night.
A. The Testimony at Trial, in General
Years later, in 2019, after having been apprehended in Mexico and
extradited to the United States, Solorio was tried on charges of murder in

connection with the deaths of German and Ventura.2 At trial, Solorio
asserted self-defense.
The jury heard testimony that, on the day of the shooting, a group of 25
to 30 people had gathered at an apartment in Ramona in which the birthday
girl resided with her father and mother, German and Rosario, and with her
uncle and aunt, Jose and Angela. Each of these five individuals was present
at the party. So too were other family members and invitees—including
Solorio, his wife, and their two young daughters.
There was food, soda, beer, cake, and a pinata. Over the course of
about six hours, the men drank beer. At one point, the conversation turned
to taking up a collection, with each of the men to contribute five dollars, for
the purpose of purchasing more beer. Solorio said he would contribute to the
collection were it not for the fact that the only bills he had were $100 bills,
and he proceeded to display the contents of either his wallet or an envelope to
demonstrate that he was telling the truth. Then an argument ensued.
Accounts of the argument vary somewhat. For example, whereas
Solorio, Rosario and Angela say Jose rebuked Solorio for flashing his money

2 Shortly after the events of the evening in issue, Solorio was charged
with murder in connection with the deaths of German and Ventura, and
attempted murder in connection with the injuries sustained by Carlos and
Jose; however, the attempted murder charges were dismissed in connection
with the extradition proceedings because the Mexican statute of limitations
governing those charges had lapsed.

3
around “like a prostitute” or “a whore,” Jose attributes such remarks to
German. Likewise, whereas Jose and Angela say Solorio challenged Jose to a
fight, Solorio says it was Jose who challenged him to fight. In all events,
each of the eyewitnesses who testified at trial—Solorio, Rosario, Angela, Jose,
Carlos and another of the birthday girl’s cousins—agree that the argument
rapidly descended into name-calling, shouting, and talk of fist fighting.
But before the talk of fighting could degenerate into an actual fist fight,
Solorio left the party accompanied by his wife and daughters. He drove them
home and left them there. Then he armed himself with a handgun and drove
back to the party.
B. The Testimony of Solorio on Direct Examination
Each eyewitness to the argument and each eyewitness to the shootings
who testified at trial described the evening’s events in ways that corroborated
the descriptions of other witnesses in some respects, and contradicted them
in other respects. In resolving discrepancies in the witnesses’ testimony, we
view the evidence in the light most favorable to the theory asserted by Solorio
on appeal, namely that substantial evidence mandated a heat of passion
instruction. (See In re Hampton (2020) 48 Cal.App.5th 463, 480 (Hampton)
[“In assessing the sufficiency of the evidence to support [a heat of passion
manslaughter] instruction, ‘we view the evidence in the light most favorable

4
to the defendant.’ ”].) In large measure (but not in all respects3) in this case,
that light is the one cast by the testimony of Solorio himself. Hence, we turn
now to a discussion of Solorio’s testimony on direct examination.
1. Solorio’s Testimony Regarding Why He Left the Party
On direct examination, Solorio testified about hostile remarks that he
said Jose had directed at him during the party:
“Q: You indicated . . . the argument escalated. What
happened?
“A: Well, they asked me for money so they could buy more
beer because they wanted to continue drinking.
“Q: And what did you say?
“A: I said, ‘Tomorrow is Sunday. I have to go to work, and I
don’t have any change.’
“Q: How was that received?
“A: As if I was a tightwad, as if I was a person – Now can I
say the words?
“Q: Yes.
“A: That I was a chickenshit person and almost like a faggot
because I didn’t want to continue drinking.
“Q: And who said that?

3 Importantly, in viewing the evidence in the light most favorable to the
theory for which Solorio is contending on appeal, we do not confine our review
to just the testimony of Solorio or to just the testimony that his counsel
adduced at trial. (See In re Lopez (2023) 14 Cal.5th 562, 591 [“It is well
settled that the jury has wide latitude to believe or disbelieve witnesses, or
even specific portions of their testimony, as it sees fit.”]; People v. Wader
(1993) 5 Cal.4th 610, 641 [“jury [is] free to believe some of defendant’s
statements and to disbelieve other [of his] statements”].) Instead, we
embrace any substantial evidence favoring the theory for which Solorio is
contending on appeal, even if such substantial evidence is contradicted by the
testimony of Solorio or (as is the case here) by the testimony of numerous
other witnesses.

5
 “A: Mr. Jose Aviles.
“Q: What did you say in response?
“A: I said, ‘If I’m all those things that you are saying, why did
you invite me to the party?’
“Q: [Then] what happened?
“A: He said, referring to the other people at the party, ‘Who
the fuck invited him?’
“A: I insisted, ‘Why did you invite me, then? Why were we
given an invitation which said ‘family? ’
“Q: What happened next?
“A: He said, ‘You want to know why?’
“Q: What did he say?
“A: He said, ‘To fuck you up, to take your money, and get
even,’ pointing to my wife, ‘with her.’ ”
Solorio further testified that: he interpreted these remarks as threats
directed at his daughters, his wife, and himself; he took the threats seriously;
and he knew he was outnumbered. It was for these reasons, he testified, that
he made two decisions: a decision(1) not to fight then and there; and a
decision(2) to gather his family and depart.
“Q: What did you think about the reality of the threats being
acted on?
“A: I took them very seriously, and I preferred to leave – that
we leave.
“Q: These threats of ‘fuck you up, take your money, get even
through your wife,’ was this before or after there was a
discussion about going downstairs to fight?
“A: That was afterwards. Because he said, ‘If you don’t
believe me, we’re going to go downstairs.’
“Q: Was there a discussion about just you and Jose Aviles
going downstairs to fight?
“A: The three of them were going to go downstairs . . .

6
 “Q: Who do you mean by ‘the three of them’?
“A: Ventura and German and, of course, Mr. Jose.
“Q: Why did you decide not to go downstairs to fight?
“A: My girls were asleep and my wife was inside.
“Q: So what did you do then?
“A: I preferred to tell my wife to get the girls up and for us to
leave.
“Q: And did you leave the party then?
“A: Yes.”
2. Solorio’s Testimony Regarding Why He Returned to the
Party, and Why He Came Armed
Asked what he was thinking as he was leaving the party, Solorio
testified he was thinking “that I was going to go to work the next day and
that my wife and my daughters were going to be left alone.” Asked what was
going through his mind after he had taken his family back home, Solorio
testified that “the idea that was going through my head was that they would
make good on the threat.”
Out of concern at what he perceived to be the continuing nature of the
threat, Solorio testified, he made two more decisions when he arrived home:
a decision(1) to return to the apartment to talk things out; and a decision(2)
to arm himself for protection.
“Q: What did you decide to do in response to [your concern
that they would make good on the threat]?
“A: To go and to try and fix this by talking.
“Q: You said that you wanted to try to fix this by talking. We
know you had a firearm that night.
“A: Yes.
“Q: Can you explain why you brought the firearm if you
wanted to fix things by talking?

7
 “A: Because previously, since it was four of them, they wanted
to beat me up. And, of course, I felt that I was at a
disadvantage.”4
3. Solorio’s Testimony Regarding What Happened When He
Returned to the Party
Asked a series of questions about what happened when he arrived back
at the apartment, Solorio testified as follows:
“Q: What did you do when you arrived back at the apartment?
“A: I went inside about two or three paces. I had the gun on
the right side of my waist so they could see it.
“Q: Was your plan when you first got to the apartment to
shoot people?
“A: No, of course not.
“Q: So what did you try to do when you first arrived?
“A: Well, to try and talk to them and for them to calm down
and for them to retract that threat.
“Q: And so what happened when you arrived?
“A: Their reaction was as if they had already been waiting for
me.
“Q: What do you mean by that?
“A: They got up at that very moment and took steps toward
me.
“Q: Did you try and say anything . . . at that point about them
approaching you?
“A: I said, ‘Don’t get near me.’ I said, ‘Don’t get near me.’
Two times.
“Q: Were you afraid at that point?

4 The “four of them” to whom Solorio was referring were German, Jose,
Ventura, and Carlos. Solorio testified that he knew these four men “fought
as a group.”

8
 “A: Of course.”
Then, Solorio testified the men in the room advanced toward him, and,
“believ[ing] . . . they were going to hurt” him, he opened fire in self-defense,
intending to stop but not kill them.
4. Solorio’s Testimony Regarding What He Was Thinking as
He Was Pulling the Trigger
In response to several questions addressed to the topic of what
“was . . . going through [his] mind at th[e] time” of the shootings inside the
apartment, Solorio testified: “My mind was going 1,000 miles an hour, and I
remember everything,” including the fact that, even as the men were
advancing upon him, he “was focused on speaking to them” yet also thinking
that “they fought as a group” and “could have . . . weapons” and the
possibility that “what happened to my father” (a policeman who had been
killed when Solorio was eight years old) “is going to happen to me.”
C. The Testimony of Solorio on Cross-Examination
1. Solorio’s Testimony Regarding Threats and Insults that
Had Been Directed at Him; Who Had Uttered Them; and
How They Made Him Feel
On cross-examination, Solorio responded to a series of questions
probing the topics of who specifically had directed threats and insults at him
and his family and how such threats and insults had affected him. In
response to these questions, he testified that the threats and insults had been
leveled by Jose, and that they had made him angry:
“Q: This morning you told us that Jose Aviles told you at the
party that night that you were invited because he wanted
to ‘fuck you up and take your money and get even through
your wife’?
“Q: It was Jose that said this; correct?
“A: Yes.
“Q: It was not Carlos, was it?

9
“A: It was Jose.
“Q: It was not Ventura, was it?
“A: It was Jose.
“Q: It was not German, was it?
“A: It was Jose.
“Q: And Jose was the one that said to you that you were
chickenshit; correct?
“A: That I was chickenshit, a cheapskate, even a faggot.
“A: And a prostitute.
“Q: Well, let’s clarify. Did he call you chickenshit, a
cheapskate, and a prostitute or a faggot?
“A: Yes.
“Q: Which one?
“A: Jose.
“Q: Which word?
“A: A slut.
“Q: Okay. Did you understand him to mean that you were
gay?
“A: And a faggot.
“Q: I’m asking you is that what you – did he call you that, or
did you understand that?
“A: Yes. I understood that, yes.
“Q: Did that make you angry?

10
 “A: Yes.”5
2. Solorio’s Testimony Regarding the Homosexuality-Related
Insults in Particular
After eliciting Solorio’s testimony regarding the specific insults that
had been directed at him, the prosecutor initiated a line of questioning that
focused on Solorio having lived with a man who was openly gay:
“Q: You had lived with a man named Ramon, hadn’t you?
“A: Yes.
“Q: Did people criticize you for living with Ramon?
“A: No.
“Q: Did people criticize you because you were living with a
man in 1987 that was openly gay?
“A: There were rumors.
“Q: About Ramon?
“A: No, about me.”

5 The accounts that other witnesses supplied regarding the substance of
the argument and Solorio’s emotional state at the time of the argument
varied. With regard to Solorio’s emotional state at the time of the argument,
two witnesses (Jose and Carlos) said Solorio became “angry” or “upset”
during the argument, a third witness (young cousin) said Solorio “wasn’t
mad” and “didn’t look upset,” a fourth witness (Rosario) said she “did not
notice . . . [Solorio] was upset,” and a fifth witness (Angela) told a detective on
the night of the shootings that Solorio “was enraged and felt he had been
embarrassed in front of his family” but then testified at trial that nobody got
angry during the argument. Because “ ‘we view the evidence in the light
most favorable to the defendant’ ” for purposes of the argument Solorio is
making on appeal (see Hampton, supra, 48 Cal.App.5th at p. 480) and
because we conclude the evidence supporting an inference that Solorio
became angry, upset, or enraged is substantial, we embrace that evidence
and disregard the evidence supporting an inference to the contrary.

11
The prosecutor then concluded this line of inquiry with a series of questions
inquiring into the impact that the homosexuality-related insults in particular
had had on Solorio:
“Q: Did that make you more sensitive when he called you gay
in 1987, that there had been these rumors before?
“A: Yes.
“Q: Did that make you more mad?
“A: Yes.
“Q: And he did this in the living room; correct?
“A: Yes.
“Q: Was your wife there?
“A: Yes.
“Q: And your friends were there; correct?
“A: Yes.
“Q: So Jose Aviles had insulted you in front of all of these
people; true?
“A: Yes.
“Q: And that made you mad; correct?
“A: Yes.”
3. Solorio’s Testimony Regarding His Interpretation of the
Hostile Remarks Directed at Him
The prosecutor also probed Solorio’s earlier testimony regarding how he
(Solorio) had interpreted the hostile remarks that had been directed at him at
the party:
“Q: So you thought that they invited you to that party for a
four-year-old girl so that they could beat you, rob you, and
harm your wife as well?
“A: Yes, just when I heard the threats.

12
 “Q: This is the same party with the pinata we are talking
about?
“A: Yes.
“Q: And the cake; right?
“A: Yes.
“Q: For the little girl; correct?
“A: Yes.
“Q: They were going to do all these horrible things to you at
the little girl’s party; correct?
“A: That’s what I don’t know.”
D. The Jury Instructions, Verdict, Sentence, and Appeal
After the defense rested its case, the trial court turned to the topic of
jury instructions. With input from counsel, the trial court resolved upon
instructions to be given for the offenses of first and second degree murder,
plus voluntary manslaughter based on a theory of imperfect self-defense. The
trial court noted: “we are only instructing on one form of manslaughter,
obviously,” and then it and counsel moved on to the topic of verdict forms
without either counsel registering an objection. The following day, the court
instructed the jury as to first degree murder, second degree murder, and
manslaughter based on imperfect self-defense, but not as to manslaughter
based on heat of passion.
The jury returned verdicts of second degree murder with regard to each
of the two decedents. The trial court then sentenced Solorio, and Solorio
timely appealed.
II.
DISCUSSION REGARDING SOLORIO’S CONVICTIONS
Solorio’s principal contention on appeal is that his convictions for
second degree murder should be reversed because the trial court erred by

13
failing to instruct the jury on the lesser included offense of manslaughter

based on heat of passion.6 As a consequence, he says, the jury “never had the
opportunity to consider the legal theory that best fit the facts.” “[W]e review
independently the question [of] whether the trial court improperly failed to
instruct on a lesser included offense.” (People v. Souza (2012) 54 Cal.4th 90,
113 (Souza); accord People v. Cole (2004) 33 Cal.4th 1158, 1215, People v.
Waidla (2000) 22 Cal.4th 690, 739.)
A. The Lesser Included Offense of Voluntary Manslaughter Based
on Heat of Passion
Homicide is the killing of one human being by another. (People v.
Beltran (2013) 56 Cal.4th 935, 941 (Beltran).) Such a killing can be classified
as first degree murder, second degree murder, or manslaughter. If
committed with malice aforethought, it is murder. (People v. Breverman
(1998) 19 Cal.4th 142, 153 (Breverman); see also Beltran, at p. 941.) If the
malice aforethought is “formed willfully, deliberately, and with
premeditation,” then the killing is first degree murder. (Beltran, 56 Cal.4th
at p. 942.) If the malice aforethought is formed without those additional
elements, then the killing is second degree murder. (Ibid.) And, if malice
aforethought is absent, then the killing is not murder and may instead be
classified as voluntary manslaughter. (Breverman, at p. 153 [“ ‘A defendant
who commits an intentional and unlawful killing but who lacks malice is
guilty of . . . voluntary manslaughter.’ ”].)

6 In addition to contending that the trial court erred by not instructing
the jury on the lesser included offense of manslaughter based on heat of
passion, Solorio also contends that this instructional error harmed Solorio.
Inasmuch as we find no instructional error (see post), however, we need not
address the contention that Solorio suffered prejudice or harm.

14
 In most circumstances, a defendant who intentionally and unlawfully
kills another person acts with malice. (Breverman, supra, 19 Cal.4th at
p. 153.) However, “in [certain] limited, explicitly defined circumstances,”
such a person acts without malice. (Ibid.) These include “when the
defendant acts in a ‘sudden quarrel or heat of passion’ [citation] or when the
defendant kills in ‘unreasonable self-defense’—the unreasonable but good
faith belief in having to act in self-defense.” (Id. at pp. 153–154; see also
Beltran, supra, 56 Cal.4th at p. 942 [“Heat of passion is a mental state that
precludes the formation of malice and reduces an unlawful killing from
murder to manslaughter.”].) Thus, the law recognizes that, even though it is
true that “some measure of thought is required to form either an intent to kill

or a conscious disregard for human life,”7 nonetheless “a person who acts
without reflection in response to adequate provocation”—i.e., a person who
acts in the heat of passion—“does not act with malice.” (Beltran, 56 Cal.4th
at p. 942, italics added.)
“Because heat of passion and unreasonable self-defense reduces an
intentional, unlawful killing from murder to voluntary manslaughter by
negating the element of malice that otherwise inheres in such a homicide
[citation], voluntary manslaughter of [either of] these two forms is considered
a lesser necessarily included offense of intentional murder.” (Breverman,
supra, 19 Cal.4th at p. 154.)

7 Malice can be express or implied. It is express when a person intends
to kill. It “ ‘is implied when a person willfully does an act, the natural and
probable consequences of which are dangerous to human life, and the person
knowingly acts with conscious disregard for the danger to life that the act
poses.’ ” (Beltran, supra, 56 Cal.4th at pp. 941–942.)

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B. The Duty of a Trial Court to Sua Sponte Instruct the Jury on
Heat of Passion Voluntary Manslaughter Whenever the Offense
Finds Substantial Support in the Evidence
Whenever a lesser included offense (such as voluntary manslaughter
based on heat of passion or imperfect self-defense) finds substantial support
in the evidence presented to a jury, the trial court is obligated to sua sponte
instruct the jury regarding that offense. (Breverman, supra, 19 Cal.4th at
pp. 148–149, 160–163.) This obligation “exists even when as a matter of trial
tactics a defendant not only fails to request the instruction but expressly
objects to its being given.” (People v. Barton (1995) 12 Cal.4th 186, 195
(Barton); see also Breverman., at pp. 154, 162.) Simply stated:
“In the interests of justice, this rule demands that when the
evidence suggests the defendant may not be guilty of the
charged offense, but only of some lesser included offense,
the jury must be allowed to ‘consider the full range of
possible verdicts—not limited by the strategy, ignorance, or
mistakes of the parties,’ so as to ‘ensure that the verdict is
no harsher or more lenient than the evidence merits.’
[Citations.] The inference is inescapable that, regardless of
the tactics or objections of the parties, or the relative
strength of the evidence on alternate offenses or theories,
the rule requires sua sponte instruction on any and all
lesser included offenses, or theories thereof, which are
supported by the evidence. In a murder case, this means
that both heat of passion and unreasonable self-defense, as
forms of voluntary manslaughter, must be presented to the
jury if both have substantial evidentiary support.”
(Breverman, at p. 160.)
But the converse is also true. That is, the trial court is not obligated to
instruct the jury on heat of passion voluntary manslaughter if heat of passion
does not have substantial evidentiary support. (Breverman, supra, 19 Cal.4th
at p. 160; Souza, supra, 54 Cal.4th at p. 140.) As our Supreme Court has
explained, “the existence of ‘any evidence, no matter how weak’ will not

16
justify instructions on a lesser included offense.” (Breverman, at p. 162.)
Rather, the evidence must be of a quantum or quality that the court has
described, variously, as “evidence that a reasonable jury could find
persuasive” (Barton, supra, 12 Cal.4th at p. 201, fn. 8; see also Breverman, at
p. 162), “evidence . . . ‘substantial enough to merit consideration’ by the jury”
(Breverman, at p. 162), and “ ‘ “evidence from which a jury composed of
reasonable [persons] could . . . conclude[ ]” ’ ” that the lesser offense, but not
the greater, was committed.” (Ibid.)
C. The Heat of Passion Standard
Before we can make a determination as to whether heat of passion has
substantial evidentiary support in the record before us on this appeal, we
first must satisfy ourselves as to the meaning of the phrase “heat of passion”
when used as the basis for a conviction of manslaughter in lieu of murder. As
an initial matter, we note it has oft been said that the “heat of passion
requirement for manslaughter has both an objective and a subjective
component.” (People v. Steele (2002) 27 Cal.4th 1230, 1252 (Steele); accord
People v. Moye (2009) 47 Cal.4th 537, 549 (“Moye”) and People v. Wickersham
(1982) 32 Cal.3d 307, 326–327.) Objectively, “ ‘this heat of passion must be
such a passion as would naturally be aroused in the mind of an ordinarily

reasonable person under the given facts and circumstances.’ ”8 (Steele, at
p. 1252, quoting People v. Logan (1917) 175 Cal. 45, 49 (Logan).)

8 As will be seen post, whereas the Supreme Court spoke in terms of the
“ordinarily reasonable person” in its opinion in Steele (see Steele, supra, 27
Cal.4th at p. 1252), it used other formulations to refer to the same concept in
other opinions. (See, e.g., Beltran, supra, 56 Cal.4th at p. 957 [“ordinary
person of average disposition”]; id. at p. 939 [“ordinary men of average
disposition”]; id. at p. 949 [“ordinary person”]; Breverman, supra, 19 Cal.4th
at p. 163 [“ ‘ “person of average disposition” ’ ”].)

17
Subjectively, the “defendant must actually, subjectively, kill under the heat of
passion.” (Steele, at p. 1252; see also Wickersham, at p. 327.)
In Beltran, our Supreme Court undertook to “clarify what kind of
provocation will suffice to constitute heat of passion and reduce a murder to
manslaughter.” (Beltran, supra, 56 Cal.4th at p. 938.) The Court put front
and center, in the opening and closing paragraphs of its opinion, a passage
from one of its earlier opinions—People v. Logan—and commented on that
passage as follows:
“Nearly one hundred years ago, this court explained that,
when examining heat of passion in the context of
manslaughter, the fundamental ‘inquiry is whether or not
the defendant’s reason was, at the time of his act, so
disturbed or obscured by some passion . . . to such an extent
as would render ordinary men of average disposition liable
to act rashly or without due deliberation and reflection, and
from this passion rather than from judgment.’ (People v.
Logan (1917) 175 Cal. 45, 49.) The proper standard focuses
upon whether the person of average disposition would be
induced to react from passion and not from judgment.”
(Beltran, at pp. 938–39; see also id. at p. 957.)
In its opinion in Beltran the Court illuminated, from a variety of
different angles, the meaning of its statements in the above-quoted passage
(1) that the focus should be on “whether the person of average disposition
would be induced to react from passion and not from judgment” (Beltran,
supra, 56 Cal.4th at p. 939, italics added) and (2) that, for murder to be
reduced to manslaughter based on heat of passion, the defendant’s reason is
required to have been “ ‘disturbed or obscured . . . to such an extent as would
render ordinary men of average disposition liable to act . . . from . . . passion
rather than from judgment.’ ” (Ibid., italics added.) For example, the court
said: (3) that, “[t]o be adequate” to the task of justifying a conviction of
manslaughter in lieu of murder, “the provocation must be one that would

18
cause an emotion so intense that an ordinary person would simply react,
without reflection” (Beltran, at p. 949, italics added); (4) that “the . . . passion
[the provocation elicits] 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” (ibid., italics added); (5) that a “provocation is sufficient [to
reduce murder to manslaughter] not because it affects the quality of one’s
thought processes, but because it eclipses reflection” (id. at p. 950, italics
added); (6) that the provocation must be one that prompts a person to “simply
react[] from emotion due to the provocation, without deliberation or
judgment” (ibid., italics added); (7) that the passion the provocation elicits
ceases to justify a conviction for manslaughter in lieu of murder when the
passage of time has permitted “ ‘passion to subside and reason to return’ ” (id.
at p. 951, italics added); and (8) that that passion ceases to have that effect
when the passage of time has allowed “for one’s passions to ‘cool off’ and for
‘judgment to be restored.’ ” (Ibid., italics added.)
Through each of these articulations, and through the force of all of
them together, the court made manifest that, for a provocation to suffice to
reduce murder to heat of passion manslaughter, it must be one that would
induce an ordinary man of average disposition (objective component), and
that did induce the defendant on trial (subjective component), to act in a
manner that was bereft of reason. In addition, lest there be any question on

19
this point, the court also forcefully refuted an implication9 that the two
requirements articulated in Logan—that the provocation be “ ‘such . . . as
would render ordinary men of average disposition liable to act rashly or
without due deliberation and reflection’ ” and “ ‘such . . . as would render
ordinary men of average disposition liable to act . . . from this passion rather
than from judgment’ ” (Beltran, supra, 56 Cal.4th at p. 939, quoting Logan,
supra, 175 Cal. at p. 49)—could be considered in the disjunctive. (See
Beltran, at pp. 949–950.) As can be seen, the court drove home the point
that, for a heat of passion to reduce murder to manslaughter, the provocation
that ignites it not only must impair a person’s reason, it must supplant it.
Moreover, it must do so not only in the defendant, but also in the “ordinary
person of average disposition,” aka the “ordinarily reasonable man.”
D. Application of the Heat of Passion Standard to the Evidence in
this Case
The principles discussed above establish that a trial court is obligated
to instruct the jury on heat of passion manslaughter as a lesser included
offense if, and only if, the jury has been presented with substantial evidence
that a defendant on trial for murder was provoked in a way that would have
caused an ordinary person of average disposition, and that did cause the
defendant, to react from anger or fear or panic or some other passion or

9 This implication arose when the Attorney General argued “that
‘ “acting rashly” means nothing more than acting hastily or imprudently,
without consideration’ and ‘[t]here are countless experiences in everyday life
which would cause an ordinary person to act “rashly.” ’ ” (Beltran, supra,
56 Cal.4th at pp. 949-950.) The court however disagreed, saying, “The
argument misconstrues the standard.” (Id. at p. 950.) “[P]rovocation is
sufficient not because it affects the quality of one’s thought processes but
because it eclipses reflection. A person in this state simply reacts from
emotion due to the provocation, without deliberation or judgment.” (Ibid.)

20
emotion rather than comport himself in a manner informed by an exercise of
judgment or reason.
In this case, the defense contends that this standard was satisfied by
substantial evidence on the basis of which a reasonable juror could have
found: (1) that German and Ventura provoked Solorio “by threatening [him]
and his family,” “by . . . disclos[ing] that [he] was perceived as engaging in
homosexual conduct,” “by advancing towards him when he returned to the
apartment,” or by “the combined effect” of the afore-described conduct;
(2) that, at the time he killed German and Ventura, Solorio’s “judgment was
overwhelmed by intense emotion” attributable to such provocations; and (3)
that “the average person would have reacted to [such] provocation[s] rashly
from emotion instead of from judgment,” as he argues he did.
In support of these contentions, the defense argues substantial
evidence supports inferences: that serious threats and insults were directed
at Solorio during the party; that it was German, not Jose, who uttered the
threats and insults, and that German and Ventura’s conduct “could
reasonably have been interpreted by [Solorio] as their adoption of Jose’s
verbal threats and their signaling that they would help Jose carry[ ] out the

threat to ‘fuck [Solorio] up;’ ”10 that such threats and insults made Solorio
“angry,” “mad,” and “upset” to the point that (by the account of one witness,
Rosario), when he returned to the apartment, “he had a crazed look on his

10 Solorio’s arguments regarding to whom the making of the threats and
insults should be attributed are directed at case law to the effect that the
“ ‘ ‘provocation which incites the defendant to homicidal conduct in the heat
of passion must be caused by the victim [citation], or be conduct reasonably
believed by the defendant to have been engaged in by the victim.” ’ ” (See
People v. Nelson (2016) 1 Cal.5th 513, 540, italics added, quoting Moye, supra,
47 Cal.4th at pp. 549–550.)

21
face;” that the passage of time between Solorio’s departure from the party
and his return to the apartment might have been as little as 15 minutes or
less; that, when Solorio returned to the apartment, he intended to talk,
rather than shoot; that, before shooting, he warned German and Ventura not
to approach him; and that the jury would have been at liberty to disbelieve
whatever portions of Solorio’s or other witnesses’ testimony clashed with such
evidence. (Cf. Lopez, supra, 14 Cal.5th at 591 and Wader, supra, 5 Cal.4th at
641, both discussed ante at fn. 3.)
But even if we were to agree with every one of these arguments and
view the evidence in the light most favorable to the result Solorio is

advocating,11 we nevertheless would conclude that no heat of passion
manslaughter instruction was warranted because the record in this case is
without substantial evidence to support either, let alone both, of the two
components required to reduce murder to manslaughter.
1. Application of the Subjective Component of the Heat of
Passion Standard
Insofar as the subjective component of the heat of passion standard is
concerned, we note that, while the record does indeed include testimony that
could support an inference that Solorio was insulted and threatened, that the
insults and threats were attributable to German and conceivably to Ventura,
and that the insults and threats engendered a powerful passion in Solorio, it

11 The record reveals varying levels of support for Solorio’s arguments.
For example, whereas multiple witnesses testified that Solorio became angry,
mad, or upset at the party, no witness testified “that [he] was perceived as
engaging in homosexual conduct.” In all events, we find it unnecessary to
evaluate the evidentiary support on an argument-by-argument basis because
we conclude that, even if all the arguments were to find substantial support
in the evidentiary record, a heat of passion manslaughter instruction would
not have been warranted.

22
includes no evidence to suggest that Solorio’s actions were ruled by such
passion or that his reason had taken flight. That is, it does not include
evidence to the effect that Solorio “simply react[ed], without reflection”
(Beltran, supra, 56 Cal.4th at p. 949), that his reaction “bypassed his thought
process to such an extent that judgment could not and did not intervene”
(ibid.), or, stated in yet another way, that he “simply reacted from emotion
due to . . . provocation, without deliberation or judgment.” (Id. at p. 950.)
Indeed, to the contrary, all of the evidence is to the effect that Solorio
exercised judgment (albeit not always good judgment) every step of the way.
Far from revealing an absence of reason, the undisputed evidence
reveals that, at the time Solorio left the party, he had the presence of mind to
make reasoned decisions, including: his decision to not engage in a fight
because he was outnumbered and his decision to drive his wife and daughters
home so as to place physical distance between them and the men who he says
he perceived as a threat to them. Similarly, Solorio’s undisputed testimony
reveals that, after he arrived home, he had the presence of mind to make
additional reasoned decisions, including: his decision to return to the
apartment in an effort to defuse the threat and his decision to arm himself for
protection. In like fashion, the undisputed evidence reveals that, once he had
returned to the apartment, he had the presence of mind to reflect on the
optics of the confrontation he was about to initiate. So doing, he reasoned
that, if the men realized he was armed, they might be less emboldened by
their strength in numbers to resort to violence instead of acquiescing to his
desire that they simply retract the threat. And it was on the basis of this
reasoning that he made a judgment to present himself in a manner that
unambiguously signaled he was armed. Likewise, Solorio’s undisputed
testimony reveals that, even as the men were coming at him, Solorio’s mind

23
was “focused on speaking to them,” while remaining vigilant to the fact “that
they fought as a group” and the fact that they “could have . . . weapons.” In
all of these disparate ways, the undisputed evidence—including Solorio’s own
testimony about his state of mind—contradict the notion that he “simply

react[ed] from emotion . . . without deliberation or judgment.”12 (See
Beltran, supra, 56 Cal.4th at p. 950.) The evidence makes abundantly clear
that reason and deliberation and judgment informed Solorio’s actions at
every turn.
2. Application of the Objective Component of the Heat of
Passion Standard
Turning to the objective component of the heat of passion standard, we
reject the notion that any or all of the three stimuli that Solorio has cited as
provocations can suffice to constitute a provocation of the sort that is
sufficient to merit a manslaughter instruction. The first such stimulus—the
statement that Solorio had been invited to the party so that one or more of
the men there could “ ‘fuck [him] up, . . . take [his] money, and get even . . .
through her’ ” is a stimulus that, if taken at face value, could cause fear;
but—as Solorio’s own behavior demonstrated, it is not a stimulus that would
provoke a passion so strong as to prompt an ordinary person to simply react,
“without reflection,” “without deliberation,” “without judgment,” in a manner
that would “bypass[ ] his thought process to such an extent that judgment
could not . . . intervene.” (See Beltran, supra, 56 Cal.4th at pp. 949–950.)

12 We note Rosario testified that, when Solorio returned to the apartment,
“he had a crazed look on his face.” In our view, this testimony supports an
inference that Solorio acted in a heat of passion; however, it is a single
isolated snippet that, in our view, does not rise to the level of substantial
evidence. (See discussion of substantial evidence standard (citing Breverman,
supra, 19 Cal.4th at p. 162 and Barton, supra, 12 Cal.4th at p. 201, fn. 8)
ante.

24
 So too is it the case with the second of the three stimuli—homophobic
epithets—that Solorio cites as a provocation. While it is true, as Solorio
points out, that homosexuality is a trait that throughout much of history has
stirred opprobrium, that taunts associated with it can engender feelings of
humiliation in some individuals, and that the effects of such taunts on such
individuals might have been more powerful in 1987 than they are today, it
also is true that “call[ing] [someone] a ‘faggot’ . . . would not drive any
ordinary person to act rashly or without due deliberation and reflection.”
(See People v. Najera (2006) 138 Cal.App.4th 212, 226 [use of “faggot” epithet
does not suffice to establish provocation within the meaning of the objective

component of the heat of passion standard].)13
As for the third of the three stimuli on which Solorio relies—the
conduct of German and Ventura in “advancing towards him when he
returned to the apartment”—it, too, does not suffice to constitute provocation
of a sort that would warrant a manslaughter instruction. Although Solorio
and the Attorney General disagree as to whether the gun was in Solorio’s
hand—versus at his hip—when the men began advancing towards him, it
remains a fact that every eyewitness who testified (including Solorio) agreed

13 As stated in Logan and reaffirmed in Beltran, “ ‘no defendant may set
up his own standard of conduct and justify or excuse himself because in fact
his passions were aroused, unless further the jury believe that the facts and
circumstances were sufficient to arouse the passions of the ordinarily
reasonable man.’ ” (Beltran, supra, 56 Cal.4th at p. 950, citing Logan; see
also Steele, supra, 27 Cal.4th at pp. 1252–1253.)

25
that Solorio arrived conspicuously armed.14 Under such circumstances—
with Solorio having transformed himself from a party guest into a
conspicuously armed and unwelcome intruder in German’s home—the men’s
behavior in advancing towards him when he returned to the apartment
cannot reasonably be classified as a legally sufficient provocation under the

heat of passion standard.15 (Cf. People v. Blacksher (2011) 52 Cal.4th 769,

14 Notably, in the present case, the menace did not come to Solorio;
rather, Solorio came to the menace. To illustrate: In Breverman, the
evidence on the basis of which the Supreme Court concluded a heat of passion
manslaughter instruction should have been given was “that a sizeable group
of young men, armed with dangerous weapons and harboring a specific
hostile intent, trespassed upon domestic property occupied by [the]
defendant,” that they “challenge[d] . . . [the defendant] to fight, [and] use[d]
[their] weapons to batter and smash [his] vehicle parked in the driveway of
his residence, within a short distance from the front door,” “that the number
and behavior of the intruders . . . caused immediate fear and panic”
(Breverman, supra, 19 Cal.4th at p. 163), and that it might have been from
this fear and panic that the defendant fired his weapon. In the present case,
by contrast, the evidence on the basis of which Solorio contends a heat of
passion manslaughter instruction should have been given is that, after
having had the presence of mind to retreat from a group of men posing a
danger, the defendant reversed course by voluntarily returning to the danger
and amplifying it by visibly and deliberately introducing a gun.

15 Solorio argues the “right to ‘bear’ arms in public for self-defense”
entitles an individual to bring a weapon into the home of another individual
without that other individual’s permission.!(ARB 62-63)! In support of this
argument, he cites New York State Rifle & Pistol Assn., Inc. v. Bruen (2022)
597 U.S. 1 for the proposition that “[t]he Second Amendment’s plain
text . . . presumptively guarantees . . . a right to ‘bear’ arms in public for self-
defense.” (Id. at p. 34.) However, we know of no authority to the effect that
the right to bear arms in public for self-defense entitles an individual to bring
a weapon into the home of another. (Cf. Antonyuk v. Hochul (N.D.N.Y. 2022)
639 F.Supp.3d 232, 343 (“thus far the Second Amendment has been found to
protect the right to keep and bear arms for self-defense only in one’s own
home or in public.”)

26
833 [“ ‘ “[n]o case has ever suggested . . . that such predictable conduct by a
resisting victim would constitute the kind of provocation sufficient to reduce a
murder charge to voluntary manslaughter;” ’ ” quoting People v. Jackson
(1980) 28 Cal.3d 264, 306 and People v. Kanawyer (2003) 113 Cal.App.4th
1233, 1247; cf. Souza, supra, 54 Cal.4th at 117 [“predictable and reasonable
conduct by a victim resisting felonious assault . . . [is] not provocation
sufficient to merit a manslaughter instruction”]; People v. Enraca (2012) 53
Cal.4th 735, 760; People v. Rich (1988) 45 Cal.3d 1036, 1112.)
While not perfectly analogous, we see substantial similarities between
Solorio’s arguments in this case and the arguments that the defense
presented on appeal in Moye. In that case, the defendant testified to having
experienced a succession of three provocations. The first provocation was a
fight involving the defendant and several other men. (Moye, supra,
47 Cal.4th at p. 542). The second provocation occurred when one of the men
against whom the defendant had fought kicked the defendant’s car the
following day as the defendant was trying to engage with him “in order to
talk, try to resolve things, and avoid a continuing conflict.” (Id. at p. 545.)
The third provocation occurred when the defendant followed the man,
so that he could ascertain the man’s location and report it to police, but
instead found himself confronted by the man, who now was armed with a
baseball bat. (Moye, supra, 47 Cal.4th at p. 545.) After having been struck
with the bat several times, the defendant succeeded in wresting the bat from
his adversary and then, “right when I got it from him, . . . he tried to rush me,
like to attack me,” “so I hit him with the bat.” (Id. at p. 546.) Then, “[e]very
time he came at me I hit him again with the bat.” (Ibid.) “I was worried
about getting hit again, because he kept coming at me. So I kept hitting him
until he fell.” (Ibid.)

27
 As in the present case, the trial court instructed the jury on self-
defense manslaughter but refused to instruct on heat of passion
manslaughter (Moye, supra, 47 Cal.4th at p. 547) and the jury convicted the
defendant of second degree murder. (Id. at p. 548.) The court of appeal
reversed the trial court (ibid.), and the Supreme Court reversed the Court of
Appeal:
“We conclude the evidentiary record supports the trial
court’s determination that there was insubstantial evidence
to warrant instruction on a sudden quarrel/heat of passion
theory of voluntary manslaughter. In particular,
substantial evidence was lacking that defendant killed
while subjectively under the actual influence of ‘a strong
passion aroused by a “provocation” sufficient to cause an
“ ‘ordinary [person] of average disposition . . . to act rashly
or without due deliberation and reflection, and from this
passion rather than from judgment.’ [Citations.]” ’
Defendant’s own uncontested testimony established he did
not act rashly, or without due deliberation and reflection,
or from strong passion rather than from judgment, when he
claimed to have used the bat defensively to allegedly fend
off an attack from the homicide victim.”

Moye, supra, 47 Cal.4th at p. 541. In the present case, as in Moye, an
escalating series of provocations culminated in a burst of violence that
resulted in death. Passions played a role, but so did reason. And, viewed
objectively, none of the provocations, alone or in combination, constituted
provocation of a sort that would mandate a heat of passion manslaughter
instruction. Hence we conclude the trial court did not err in excluding heat of
passion from its instructions to the jury on the lesser included offense of
manslaughter.

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 III.
DISCUSSION REGARDING SOLORIO’S SENTENCE
In addition to challenging his conviction, Solorio also contends the trial
court erred in not awarding him presentence conduct credits, and in imposing
a parole revocation restitution fine, because the Penal Code sections on which
those aspects of his sentence were premised did not take effect until after he
committed his offenses. Citing the sections of the Penal Code that were in
effect at the time of the offenses, he argues, first, that the trial court’s award
of 1,193 days of presentence custody credits should be increased, by 198 days,
to account for presentence conduct credits—thus resulting in a total of 1,391
days of presentence custody credits—and, second, that the parole revocation
restitution fine that the trial court imposed should be stricken. The Attorney
General agrees with each of these contentions. He states that he does not
object to this court either awarding the credits or remanding the matter for
the trial court to recalculate and award appropriate credits, and that the fine
should be stricken.

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 IV.
DISPOSITION
The matter is remanded to the trial court with instructions (a) that the
custody credits be recalculated; (b) that the abstract of judgment be amended
to show the recalculated number of credits and to strike the parole revocation
restitution fine; and (c) that a copy of the amended abstract of judgment then
be forwarded to the Department of Corrections and Rehabilitation. In all
other respects, the judgment is affirmed.

KELETY, J.

WE CONCUR:

BUCHANAN, Acting P. J.

CASTILLO, J.

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