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People v. Rizo4/24/2002
to object is inherently a matter of trial tactics not ordinarily reviewable on appeal.' [Citation.]" (People v. Padilla (1995) 11 Cal.4th 891, 940, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) In addition, a defendant claiming ineffective assistance of counsel is required to show he or she was prejudiced by counsel's deficient representation, i.e., that there is a reasonable probability that, but for counsel's deficiencies, the result would have been more favorable to the defendant. (People v. Frye, supra, 18 Cal.4th 894, 979.) To the extent counsel did not object to the asserted misconduct in this case, the failure to object was not prejudicial either because there was no impropriety or, if there was, it was not significant enough to have affected the result of the trial.
III. INSTRUCTIONAL ISSUES
A. Refusal to Instruct on Involuntary Manslaughter (Ivan)
Ivan argues the court erred in refusing to instruct his jury on involuntary manslaughter as a lesser included offense of murder. His theory is that the jury might have believed the version of the homicide he related to the police: persons involved in the fight starting beating him up; he took out the gun and started "whacking" them, and a shot went off. Ivan argues that based on his account of the incident, the jury could have convicted him of involuntary manslaughter, had they been so instructed, either on a misdemeanor-manslaughter theory or based on commission of an act involving a high risk of harm without due caution, by finding the discharge of the gun was accidental.
Even where a court should have instructed on a lesser included offense, the error is harmless if the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. (People v. Flood (1998) 18 Cal.4th 470, 483.) Here, the jury's findings under other instructions, which Ivan does not claim were improper, demonstrate that it did not find the homicide to be an accident, but a deliberate act.
The jury found true the special enhancement allegation that Ivan personally and intentionally discharged a firearm, causing death to another person, in the commission of second degree murder. It failed to find true the alternative allegation that Ivan merely used a firearm, i.e., that he displayed it in a menacing manner, intentionally fired it, or intentionally struck another person with it.
If the jury had believed Ivan merely displayed the firearm or struck someone with it rather than intentionally firing it, it would have found true the use allegation and not the discharge allegation. Since it did just the opposite, it must have found that Ivan intentionally discharged the gun. That conclusion - under instructions Ivan does not claim were erroneous - precluded any finding that the shooting was accidental. Any error in not instructing on involuntary manslaughter therefore was harmless.
B. Failure to Instruct on Involuntary Manslaughter (Blue Jury Defendants)
The blue jury defendants argue the court should have instructed on involuntary manslaughter as a lesser included offense of murder. They contend the jury could have convicted them of aiding and abetting involuntary manslaughter, if it found that involuntary manslaughter was a natural and probable consequence of the offenses those defendants intended to aid and abet, but murder was not a natural and probable consequence.
In People v. Woods (1992) 8 Cal.App.4th 1570 (Woods), the court held that "an aider and abettor may be found guilty of a lesser crime than that ultimately committed by the perpetrator where the evidence sug
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 California DUI Attorneys
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