Filed 2/11/15 P. v. Garcia CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064313
Plaintiff and Respondent,
v. (Super. Ct. No. SCD233007)
JOVAN A. GARCIA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Joan P.
Weber, Judge. Affirmed.
Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
William M. Wood and Felicity Senoski, Deputy Attorneys General, for Plaintiff and
Respondent. A jury found Jovan A. Garcia guilty of first degree murder (Pen. Code, § 187,
subd. (a))1 and made a true finding on a firearm enhancement (§ 12022.53 subd. (d)).
The trial court sentenced Garcia to a prison term of 50 years to life.
Garcia contends (1) the trial court erred in denying his posttrial petition for the
release of juror information; (2) the trial court erred because it did not sua sponte give a
clarifying instruction regarding the role of provocation in deciding whether a murder is
first degree rather than second degree; and (3) defense counsel was ineffective for not
requesting a clarifying instruction on provocation. We conclude that Garcia's arguments
are without merit, and accordingly we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Shortly before noon on March 13, 2011, Garcia killed Jesus Hernandez on the
street in front of Hernandez's house by shooting Hernandez five times while Hernandez
drove by on a small motorcycle. Two witnesses — Garcia's brother-in-law and a
neighbor — saw the shooting take place. Three days later, Garcia was identified as a
suspect and questioned by police. During the interview Garcia admitted to the shooting.
Garcia was charged with murder (§ 187, subd. (a)), with the further allegation that he
personally used a firearm causing death or great bodily injury.
At trial, Hernandez's brother-in-law, Javier Garcia (Javier),2 testified that he was
standing in front of the family home watching Hernandez drive up and down the street on
1 Unless otherwise indicated, all further statutory references are to the Penal Code.
2 a small motorcycle. Javier noticed Garcia walking down the sidewalk on the opposite
side of the street toward him and Hernandez. As Hernandez drove toward Garcia on the
motorcycle, Garcia crossed into the middle of the street and opened fire on Hernandez
from about three to four feet away, shooting five bullets into Hernandez's shoulder, chest
and thigh. Hernandez and the motorcycle fell to the ground. Garcia ran away and was
picked up by someone in a brown station wagon.
The shooting was also witnessed by a neighbor, Delfino Flores. While walking
down the sidewalk to another neighbor's house, Flores crossed paths with Garcia just
prior to the shooting. Garcia had been dropped off near the corner by a brown station
wagon, and Flores described Garcia as looking troubled and lost.
Flores was speaking with his neighbor and had his back turned when the shooting
started, but he turned around when he heard gunshots. He saw Garcia pointing a gun at
Hernandez and saw Hernandez on the ground. After going into the backyard of his
neighbor's house to look for something to use as a weapon, Flores came back out to the
front of the house and saw Garcia get picked up by the vehicle that had dropped him off
minutes earlier.
Flores did not hear Garcia say anything during the shooting. Javier, in contrast,
heard Garcia say something including the word "National." Although he could not
remember the exact words at trial, Javier told the police immediately after the shooting
that Garcia said "This is National Boys." There was evidence at trial that Garcia or his
2 Because the defendant and Javier share the same surname, we will refer to Javier by his first name, and we intend no disrespect by doing so.
3 family members were associated with a group called the National Boys3 who were in a
dispute with another local group called the Untouchables. Further, according to evidence
at trial, members of the Untouchables lived on Hernandez's street.
Garcia's videotaped interview with the police was played for the jury. During the
interview, Garcia explained why he committed the shooting.4 According to Garcia, for a
short time he had been "kick[ing] it" with the National Boys group. During that time, his
girlfriend was beaten up while at the playground with their young son.5 Garcia later
found out that "it was the guys from UT" who beat up his girlfriend.6 On the morning of
the shooting, according to Garcia, he was on a work break in the parking lot of Home
Depot when Hernandez drove up and tried to run over him with a blue truck. Garcia left
work, obtained a gun, and had a friend drive him to Hernandez's street. As Garcia
explained, he was walking down Hernandez's street when Hernandez came up to him
"trying to scare me with his dogs" who were following the motorcycle.7 Garcia
3 The group was also referred to during trial as "National Block," "National Block Boys" or "National Block Soldiers."
4 We quote from a transcript of the interview, which was an exhibit at trial.
5 During the girlfriend's testimony, she explained that she had been beaten up in November 2010, several months before the March 2011 shooting.
6 Although not explicitly explained at trial, from the context we infer that "UT" likely refers to the Untouchables.
7 Witnesses testified that Hernandez owned one pit bull dog, but the testimony was conflicting as to whether the dog was with Hernandez at the time of the shooting.
4 explained, "And I was like, 'What's up?' It's like, 'What the fuck?' Then he was like,
'What's up then?' Like, I was like, 'You really want to beef with me? Like, what the
fuck? Like, what's the deal?' And then he's like, 'Yeah,' and then that's when he was going
to get off his bike and I don't know what he was going to do, I think he was going to
come at me, so I just did it." According to Garcia, Hernandez was "laughing at" him.
During closing argument, defense counsel argued that instead of finding that
Garcia committed murder, the jury should return a verdict of voluntary manslaughter
based either on a theory of imperfect self-defense or on the theory that Garcia acted in the
heat of passion, which arose when Hernandez laughed at him, adding to Garcia's
preexisting anger toward Hernandez.
The jury found Garcia guilty of first degree murder and made a true finding on the
firearm allegation. The trial court sentenced Garcia to prison for a term of 50 years to
life.
II
DISCUSSION
A. The Trial Court Properly Denied the Petition for Release of Juror Information
After trial, Garcia filed a petition for an order directing that the addresses and
telephone numbers of the jurors be disclosed so that defense counsel could prepare a
motion for a new trial based on jury misconduct. The trial court denied the petition on
the ground that Garcia did not make a prima facie showing of good cause for the release
of the information. Garcia challenges that decision on appeal.
5 1. Law Governing Release of Juror Information
As applicable here, the law provides that after the recordation of a jury's verdict in
a criminal jury proceeding, the court's record is sealed, with all personal juror identifying
information of trial jurors removed from the court record. (Code Civ. Proc., § 237,
subd. (a)(2)-(3).) Under Code of Civil Procedure section 206, subdivision (g), "a
defendant or defendant's counsel may . . . petition the court for access to personal juror
identifying information within the court's records necessary for the defendant to
communicate with jurors for the purpose of developing a motion for new trial or any
other lawful purpose."
Code of Civil Procedure section 237, subdivision (b) sets forth the standard by
which a petition for release of juror information is evaluated. "The petition shall be
supported by a declaration that includes facts sufficient to establish good cause for the
release of the juror's personal identifying information. The court shall set the matter for
hearing if the petition and supporting declaration establish a prima facie showing of good
cause for the release of the personal juror identifying information, but shall not set the
matter for hearing if there is a showing on the record of facts that establish a compelling
interest against disclosure. A compelling interest includes, but is not limited to,
protecting jurors from threats or danger of physical harm." (Ibid.)8
8 If the trial court decides that the petitioning party has shown good cause for the release of the information, a hearing is held after jurors are given notice of the proposed release of personal identifying information and an opportunity to protest. (Code Civ. Proc., § 237, subd. (c).)
6 A prima facie case of good cause is shown "if the defendant sets forth a sufficient
showing to support a reasonable belief that jury misconduct occurred." (People v.
Rhodes (1989) 212 Cal.App.3d 541, 552.) To establish good cause "the defendant . . .
has to prove that talking to the jurors is reasonably likely to produce admissible evidence
of juror misconduct." (People v. Johnson (2013) 222 Cal.App.4th 486, 493.) "This rule
safeguards both juror privacy and the integrity of our jury process against unwarranted
'fishing expeditions' by parties hoping to uncover information to invalidate the jury's
verdict." (Rhodes, at p. 552.)
If the trial court decides that the petitioning party has made a prima facie showing
of good cause for the release of the personal juror identifying information, and there is no
other compelling interest against disclosure, jurors are given notice of the proposed
release of information and an opportunity to protest, and a hearing is held to determine
whether to release the information. (Code Civ. Proc., § 237, subd. (c).)
A trial court's decision that a defendant has not made a prima facie showing of
good cause is reviewed for abuse of discretion. (People v. Carrasco (2008) 163
Cal.App.4th 978, 991.)
2. The Trial Court Did Not Abuse Its Discretion in Deciding That Garcia's Petition Did Not Establish Good Cause
Here, the trial court denied Garcia's petition for the release of personal juror
identifying information on the ground that he did not make a prima facie showing of
good cause because the facts set forth in defense counsel's declaration, even if true, would
7 not constitute juror misconduct. As we will explain, the trial court did not abuse its
discretion in reaching that conclusion.
In support of his petition, Garcia submitted a declaration from defense counsel,
which described statements made by Juror No. 41 in posttrial conversations with an
investigator from the alternate public defender's office. Juror No. 19 was the foreperson,
and according to Juror No. 41's statement to the investigator, three aspects Juror No. 19's
conduct during deliberations made Juror No. 41 uncomfortable.
First, Juror No. 19 stated during deliberations that she thought a photograph of the
scene of the shooting introduced at trial was misleading based on her personal knowledge
of the length of the street and the distance between the houses. Specifically, Juror No. 19
explained that "she had worked in that area as a physical therapist and had to go to those
homes," and based on that experience, "the houses . . . on that street were very close
together and . . . the street was not nearly as long as it had appeared in the photo."9
Next, Juror No. 19, along with one of the male jurors, talked about their personal
knowledge of guns. In particular, Juror No. 19 said that she personally shot weapons and
that based on her personal knowledge, Garcia "couldn't have closed his eyes when he shot
and . . . it was therefore very obvious to her that [Garcia] intended to kill the deceased."
9 The length of the street was relevant to the issues at trial because defense counsel questioned during closing argument whether Javier, who was standing approximately four houses away from Hernandez during the shooting, was actually close enough to be able to hear Garcia say something like "This is National Boys."
8 Finally, Juror No. 19 "had a pro prosecution agenda"; "she spoke over other
people who had different opinions"; and Juror No. 41 "finally caved in to the views of
[Juror No. 19] after forceful argument," which Juror No. 41 believed "amounted to
steamrolling."
a. The Juror Comments Did Not Improperly Inject Outside Information
Garcia first argues that the information in defense counsel's declaration establishes
juror misconduct because it shows that Juror No. 19 improperly injected outside
information into the jury deliberations. Specifically, Garcia argues that it was
misconduct for Juror No. 19 to relate (1) her personal knowledge of the street on which
the shooting occurred, and (2) her personal experience with shooting guns. As we will
explain, we disagree.
As our Supreme Court has explained, it is permissible for jurors to rely on their
personal experiences in evaluating the evidence presented at trial. "A jury's verdict in a
criminal case must be based on the evidence presented at trial, not on extrinsic
matters. . . . Nevertheless, jurors may rely on their own experiences in evaluating the
testimony of the witnesses. 'Jurors do not enter deliberations with their personal histories
erased, in essence retaining only the experience of the trial itself. Jurors are expected to
be fully functioning human beings, bringing diverse backgrounds and experiences to the
matter before them.' . . . 'Jurors bring to their deliberations knowledge and beliefs about
general matters of law and fact that find their source in everyday life and experience.
That they do so is one of the strengths of the jury system. It is also one of its weaknesses:
it has the potential to undermine determinations that should be made exclusively on the
9 evidence introduced by the parties and the instructions given by the court. Such a
weakness, however, must be tolerated . . . . [Otherwise,] few verdicts would be proof
against challenge.' " (People v. Leonard (2007) 40 Cal.4th 1370, 1414, citations omitted
(Leonard).)
" 'A juror may not express opinions based on asserted personal expertise that is
different from or contrary to the law as the trial court stated it or to the evidence, but if
we allow jurors with specialized knowledge to sit on a jury, and we do, we must allow
those jurors to use their experience in evaluating and interpreting that evidence.' "
(People v. Allen and Johnson (2011) 53 Cal.4th 60, 77 (Allen and Johnson).) "Jurors'
views of the evidence . . . are necessarily informed by their life experiences, including
their education and professional work. A juror, however, should not discuss an opinion
explicitly based on specialized information obtained from outside sources. Such injection
of external information in the form of a juror's own claim to expertise or specialized
knowledge of a matter at issue is misconduct." (In re Malone (1996) 12 Cal.4th 935,
963.)
Here, in commenting that the photographic exhibit of the street was not an
accurate representation of the street's length, there is no suggestion that Juror No. 19
consulted any outside sources for any specialized information about the scene of the
crime. Instead, Juror No. 19 properly relied on her personal familiarity with the street to
evaluate the evidence presented at trial. Specifically, as Juror No. 19 had experience with
the neighborhood, she was permitted to use her own preexisting personal knowledge to
evaluate the photographic exhibit to determine whether the photograph was a credible
10 representation of the crime scene. Indeed, it would have been impossible for Juror
No. 19 to have divorced her evaluation of the photographic evidence from her personal
knowledge of the physical layout of the neighborhood. As our Supreme Court has
explained, "a distinction must be drawn between the introduction of new facts and a
juror's reliance on his or her life experience when evaluating evidence." (Allen and
Johnson, supra, 53 Cal.4th at p. 76 [juror permissibly discussed his own experience with
timecards in the workplace to conclude that a witness was not telling the truth about a
particular factual scenario involving timecards]; see also In re Lucas (2004) 33 Cal.4th
682, 696 [juror did not commit misconduct by relating his personal experiences with drug
use as part of evaluating the evidence at trial].) Here, Juror No. 19 did not commit
misconduct in commenting on the length of the street because she simply evaluated the
evidence based on her own life experiences rather than impermissibly introducing new
facts into the jury deliberations.
It was also not misconduct for Juror No. 19, joined by one other juror, to comment
about personal experiences with guns to evaluate whether Garcia was credible in
claiming to have shot Hernandez with his eyes closed. In a similar situation, our
Supreme Court concluded that it was "a normal part of jury deliberations and . . . not
misconduct" for a juror with personal experiences with firearms to form an opinion based
on that experience. (Leonard, supra, 40 Cal.4th at p. 1414.) Specifically, the juror in
Leonard properly evaluated the evidence based on his personal experience and did not
impermissibly inject outside evidence when he "said he had experience firing handguns,
and that the murder weapon was an 'up close and personal' gun that could be accurately
11 fired at close range without expertise." (Id. at pp. 1413-1414.) Just as in Leonard, the
jurors in this case permissibly used their personal experience with guns, and related it
during deliberations, to help form an opinion on the evidence presented at trial, rather
than impermissibly introducing outside evidence.
b. Garcia Did Not Make a Prima Facie Showing of Juror Misconduct Based on Bias
Garcia also contends that he made a prima facie showing requiring release of juror
information because he showed that Juror No. 19 was impermissibly biased in favor of
the prosecution. In support of this argument, Garcia points to the fact that, during voir
dire, Juror No. 19 disclosed that she was married to a San Diego County deputy district
attorney and that her brother-in-law held the same position in another county. Although,
Juror No. 19 stated at that time that she would have no reservations returning a guilty
verdict if warranted by the evidence, Garcia argues that she was nevertheless biased in
favor of the prosecution based on her background. Garcia supports this contention solely
by relying on Juror No. 41's claim that Juror No. 19 "had a pro prosecution agenda"; "she
spoke over other people who had different opinions"; and that she engaged in "forceful
argument" that "amounted to steamrolling."
It is well established that " '[f]or a juror to prejudge the case is serious
misconduct.' " (Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th 778, 792.)
Thus, for example, juror misconduct may be established by a party establishing a juror
made up his or her mind based on prejudice and bias before hearing all the evidence at
trial. (People v. Brown (1976) 61 Cal.App.3d 476, 480.) "[W]here a verdict is attacked
12 for juror taint, the focus is on whether there is any overt event or circumstance, 'open to
[corroboration by] sight, hearing, and the other senses' [citation], which suggests a
likelihood that one or more members of the jury were influenced by improper bias." (In
re Hamilton (1999) 20 Cal.4th 273, 294, italics omitted.)10
Here, although Garcia contends that Juror No. 19 prejudged the case based on pro-
prosecution bias, the statements in defense counsel's declaration do not support such an
inference. Juror No. 41 states that Juror No. 19 "had a pro prosecution agenda" during
deliberations and engaged in "forceful argument." However, this establishes nothing
more than that Juror No. 19 felt that the evidence supported the prosecution and argued
forcefully to convince her fellow jurors of her views after hearing all of the evidence at
trial. Garcia has presented no evidence of an "overt event or circumstance, 'open to
[corroboration by] sight, hearing, and the other senses' " (In re Hamilton, supra, 20
Cal.4th at p. 294), that would suggest Juror No. 19 made up her mind about the case
before hearing all of the evidence. Further, the forceful nature of Juror No. 19's
statements in the jury room do not establish impermissible bias. " 'Jurors may be
10 The focus on evidence of an overt act or circumstance to show improper bias is premised on Evidence Code section 1150, subdivision (a), which provides: "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined." (See People v. Gonzales (2012) 54 Cal.4th 1234, 1281 [the limitation in Evid. Code, § 1150 "prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors' mental processes or reasons for assent or dissent"].)
13 expected to disagree during deliberations, even at times in heated fashion.' Thus, '[t]o
permit inquiry as to the validity of a verdict based upon the demeanor, eccentricities or
personalities of individual jurors would deprive the jury room of its inherent quality of
free expression.' " (People v. Keenan (1988) 46 Cal.3d 478, 541.) Juror No. 19's
decision, after hearing the evidence, to advocate for a prosecution verdict is well within
the normal scope of juror deliberations and does not suggest that Juror No. 19 prejudged
the evidence.
In sum, the trial court was well within its discretion to conclude that Garcia did not
make a prima facie showing of good cause to release personal juror identifying
information because defense counsel's declaration did not set forth facts, which if further
developed after contacting jurors, would support a claim of juror misconduct.
B. Garcia's Claim of Instructional Error Is Without Merit
We next turn to Garcia's claim of instructional error. One of Garcia's main
defense theories was that he acted in the heat of passion, after being provoked by
Hernandez, and was therefore guilty of voluntary manslaughter, not murder. Related to
the theory that Garcia was provoked by Hernandez, defense counsel requested that the
trial court instruct the jury with CALCRIM No. 522, which explains that provocation
may reduce a murder from first degree to second degree, as well as reduce a murder
charge to manslaughter. Although, as requested by Garcia, the trial court instructed the
jury with CALCRIM No. 522, and Garcia did not request any clarifications to CALCRIM
No. 522 in the trial court, Garcia contends on appeal that the trial court erred in not sua
sponte adding clarifying language to CALCRIM No. 522.
14 Garcia does not explain exactly what language he contends the trial court should
have added to CALCRIM No. 522, but he broadly describes the concept that he believes
the trial court should have conveyed to the jury. Garcia explains that as stated in the
instruction on voluntary manslaughter premised on a heat of passion theory (CALCRIM
No. 570), provocation is sufficient to reduce murder to voluntary manslaughter only
when the jury finds that a reasonable person standard is met. Specifically, the
provocation must be of the type to "cause[] a person of average disposition to act rashly
and without due deliberation" (CALCRIM No. 570). In contrast, when provocation is
used to reduce first degree murder to second degree murder by negating the presence of
premeditation and deliberation, the reasonable person standard does not apply. (See
People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332 ["If the provocation would not
cause an average person to experience deadly passion but it precludes the defendant from
subjectively deliberating or premeditating, the crime is second degree murder."].) Any
provocation that serves to support a finding that the defendant acted without
premeditation or deliberation is sufficient to reduce murder from first degree to second
degree. (Ibid.) Garcia contends that the jury should have been instructed on this concept.
We reject Garcia's argument because he did not preserve it by making a request for
the instructional clarification to CALCRIM No. 522 in the trial court. This case falls
under the rule that "[a] trial court has no sua sponte duty to revise or improve upon an
accurate statement of law without a request from counsel [citation], and failure to request
clarification of an otherwise correct instruction forfeits the claim of error for purposes of
appeal." (People v. Lee (2011) 51 Cal.4th 620, 638.) CALCRIM No. 522 accurately
15 states the law, and Garcia does not argue otherwise.11 Accordingly, "[i]f defendant
believed the instruction . . . required elaboration or clarification, he was obliged to
request such elaboration or clarification in the trial court." (Lee, at p. 638.)12 As Garcia
did not request a clarification to CALCRIM No. 522 in the trial court, he may not argue
on appeal that the trial court erred in not giving the clarifying instruction.
C. Garcia Has Not Established Ineffective Assistance of Counsel
In a brief argument, Garcia contends that the trial court was ineffective for not
requesting the clarification to CALCRIM No. 522 that we have discussed above.13
11 Although not challenging CALCRIM No. 522 as an accurate statement of the law, Garcia argues that the instructions as a whole were misleading and should have been clarified because the instruction on voluntary manslaughter based on heat of passion (CALCRIM No. 570), when read in combination with CALCRIM No. 522, gives the impression that provocation can reduce first degree murder to second degree murder only if the provocation satisfies a reasonable person standard. We disagree. CALCRIM No. 570 clearly states that it is describing the specific requirements for provocation to reduce murder to voluntary manslaughter, and nothing in the instruction suggests that it describes the requirements for reducing first degree murder to second degree.
12 In addition, it is well established that if CALCRIM No. 522 is not requested, a trial court has no sua sponte duty to give the instruction. (People v. Rogers (2006) 39 Cal.4th 826, 878-879.) It logically follows that if the trial court has no sua sponte duty to give CALCRIM No. 522, it also has no sua sponte duty to instruct with a clarifying modification to CALCRIM No. 522 as Garcia contends is the case here.
13 We note that Garcia has improperly failed to include his ineffective assistance argument under a separate argument heading in his appellate brief. Although we could decline to reach the merits of the argument on that basis, we will exercise our discretion to consider it. (See Cal. Rules of Court, rule 8.204(a)(1) ["Each brief must: [¶] . . . [¶] (B) State each point under a separate heading or subheading summarizing the point, and support each point by argument . . . ."]; Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 59 ["We may disregard arguments not properly presented under appropriate headings."].)
16 "Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) A defendant
claiming ineffective assistance of counsel has the burden to show: (1) counsel's
performance was deficient, falling below an objective standard of reasonableness under
prevailing professional norms; and (2) the deficient performance resulted in prejudice.
(Strickland v. Washington (1984) 466 U.S. 668, 687; Ledesma, at pp. 216, 218.)
Prejudice is shown when "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome." (Strickland, at p. 694.)
Further, as is important here, "[r]eviewing courts reverse convictions on direct
appeal on the ground of incompetence of counsel only if the record on appeal
demonstrates there could be no rational tactical purpose for counsel's omissions."
(People v. Lucas (1995) 12 Cal.4th 415, 442; see People v. Anderson (2001) 25 Cal.4th
543, 569.) "In the usual case, where counsel's trial tactics or strategic reasons for
challenged decisions do not appear on the record, we will not find ineffective assistance
of counsel on appeal unless there could be no conceivable reason for counsel's acts or
omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.)
Garcia fails to establish that he received ineffective assistance, as defense counsel
could have had a sound tactical basis for not asking the trial court to expand on
CALCRIM No. 522. Specifically, it is reasonable for defense counsel to decline to
17 request an instruction that does not advance the defense's theory of the case. (People v.
Wader (1993) 5 Cal.4th 610, 643 [defense counsel could have had a rational tactical
purpose for not requesting an instruction that was inconsistent with the defense's theory
of the case that the defendant did not intend to kill the victim].) Here, defense counsel's
closing argument showed that she was focused on convincing the jury to rely on a heat of
passion theory to reduce murder to voluntary manslaughter. Additional jury instructions
on provocation as a basis for second degree murder as set forth in CALCRIM No. 522
would have been contrary to that strategy because the expanded instruction would have
focused the jury on using the heat of passion theory to reach a verdict of second degree
murder rather than to reach a verdict of voluntary manslaughter.
As we will reverse on the ground of ineffective assistance of counsel " 'only if the
record on appeal affirmatively discloses that counsel had no rational tactical purpose for
his act or omission' " (People v. Zapien (1993) 4 Cal.4th 929, 980), and defense counsel
may have made a reasonable tactical decision to omit CALCRIM No. 522, we conclude
that Garcia has failed to establish a ground for reversal.14
14 Because we have rejected each of Garcia's claims of error, we also reject Garcia's argument that any errors were cumulatively prejudicial. 18 DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.