This section contains the nature of the case and procedural background.

Eglen Coss, Moraima and her boyfriend Noah Johnson were driving home after an evening in Tijuana. Coss was driving, Johnson was in the passenger seat and Moraima was sitting between them. A confrontation occurred between Coss and the occupants of a pickup truck who believed Coss had “cut them off.” At first, there was yelling and an exchange of offensive hand gestures. As the vehicles drove side by side, with a lane between the two vehicles, a person wearing a red shirt and sitting in the front passenger seat of the truck stuck his arm out the window and fired a handgun. The bullet passed through Coss's arm, striking Moraima in the head and killing her. Coss stopped to summon help. The pickup truck drove away. Coss picked out D's picture from a lineup. Johnson eventually picked D's picture from a second lineup. Jose Lopez pled guilty to voluntary manslaughter regarding the death of Moraima. He testified that he and D were returning from Tijuana in a pickup truck. D was drunk and Lopez drove. They were “cut off” by another vehicle. They continued up the freeway with the occupants exchanging abusive words and gestures. Eventually, D drew a gun and fired a shot. Lopez drove away. Lopez also added for the first time that a third man, Andrew Anguiano, was in the backseat of the truck he was driving. Anguiano testified that D fired the shot. D was convicted and appealed. D argues the trial court erred when it denied his request to instruct in part on the lesser included offense of voluntary manslaughter based on the heat of passion.

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