Martinez

INTRODUCTION

Appellant Eliseo Martinez restrained Nicasio Calixto Pascual1 while his cousin Valente Martinez2 stabbed him 18 times. During an interview with the investigating detective and his partner, Martinez admitted his participation in the stabbing. Now, he claims the trial court improperly denied an instruction on voluntary manslaughter based on heat of passion, even though it was not supported by the evidence and was prohibited under Penal Code section 192, subdivision (f)(1)3 based on circumstances related to the victim’s sexual orientation. Martinez also argues that the trial court violated his constitutional and statutory rights to be present at trial by finding him voluntarily absent. We reject both arguments and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Facts

A. The Prosecution Evidence 1. The incident Calixto was an openly gay man who lived in San Gabriel, California. He had seen Martinez on multiple occasions in the neighborhood. Martinez lived near Calixto in an apartment he

We refer to the victim as Calixto to be consistent with the parties. Martinez and his companion Valente Martinez have the same last name. To avoid confusion, we…